Exhibit 10.1.2
UK Sub-Plan
1999 Stock Option Plan as amended and restated August 17, 2000: pgs 1-8
UK Rules for Employees: pgs 9-11
Explanatory Notes: pgs 12-20
Stock Option Agreement: pgs 21-32
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
1999 STOCK OPTION PLAN
as amended and restated
August 17, 2000
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
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attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of
the Company and its Subsidiaries and to promote the success of the Company's
business. Options granted under the Plan may be incentive stock options (as
defined under Section 422 of the Code) or nonstatutory stock options, as
determined by the Administrator at the time of grant of an option and subject to
the applicable provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder.
2. Definitions. As used herein, the following definitions shall apply:
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(a) "Administrator" means the Board or any of its Committees
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appointed pursuant to Section 4 of the Plan.
(b) "Affiliate" means (i) any corporation in which the Company
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owns, directly or indirectly, ten percent or more of the voting stock, or any
partnership, limited liability company or other entity in which the Company
ownership interest represents, directly or indirectly, ten percent or more of
the total ownership interests in such partnership, limited liability company, or
entity; (ii) any corporation which owns, directly or indirectly, ten percent or
more of the voting stock of the Company, or any partnership, limited liability
company or other entity which owns, directly or indirectly, ten percent or more
of the voting stock of the Company; or (iii) any corporation or any other entity
(including, but not limited to, partnerships, joint ventures and limited
liability companies) that the Administrator, in its sole discretion, determines
to be controlling, controlled by, or under common control with the Corporation.
(c) "Board" means the Board of Directors of the Company.`
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(d) "Code" means the Internal Revenue Code of 1986, as amended.
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(e) "Committee" means a Committee appointed by the Board of
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Directors in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
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(g) "Company" means Seagate Software Information Management Group
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Holdings, Inc., a Delaware corporation.
(h) "Consultant" means (i) any person who is engaged by the Company
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or any Parent, Subsidiary or Affiliate to render consulting or advisory services
to such entity and is compensated for such services, (ii) any director of the
Company whether compensated for such services or not, or (iii) any employee or
director of an Affiliate.
(i) "Continuous Status as an Employee or Consultant" means that the
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employment or consulting relationship with the Company, any Parent, Subsidiary,
or Affiliate is not interrupted or terminated. Continuous Status as an Employee
or Consultant shall not be considered interrupted in the case of (i) any leave
of absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, Affiliate or any
successor. A leave of absence approved by the Company shall include sick leave,
military leave, or any other personal leave approved by an authorized
representative of the Company. For purposes of Incentive Stock Options, no such
leave may exceed ninety (90) days, unless reemployment upon expiration of such
leave is guaranteed by statute or contract, including Company policies. If
reemployment upon expiration of a leave of absence approved by the Company is
not so guaranteed, on the 181st day of such leave any Incentive Stock Option
held by the Optionee shall cease to be treated as an Incentive Stock Option and
shall be treated for tax purposes as a Nonstatutory Stock Option.
(j) "Employee" means any person, including Officers and directors,
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employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
(l) "Fair Market Value" means, as of any date, the value of Common
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Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market,
its Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for the
Common Stock on the last market trading day prior to the day of determination,
or;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Administrator.
(m) "Incentive Stock Option" means an Option intended to qualify as
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an incentive stock option within the meaning of Section 422 of the Code.
(n) "Nonstatutory Stock Option" means an Option not intended to
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qualify as an Incentive Stock Option.
(o) "Officer" means a person who is an officer of the Company
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within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "Option" means a stock option granted pursuant to the Plan.
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(q) "Optioned Stock" means the Common Stock subject to an Option.
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(r) "Optionee" means an Employee or Consultant who receives an
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Option.
(s) "Parent" means a "parent corporation", whether now or hereafter
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existing, as defined in Section 424(e) of the Code.
(t) "Plan" means this 1999 Stock Option Plan.
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(u) "Section 16(b)" means Section 16(b) of the Exchange Act.
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(v) "Share" means a share of the Common Stock, as adjusted in
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accordance with Section 11 below.
(w) "Subsidiary" means a "subsidiary corporation", whether now or
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hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
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the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 22,500,000 Shares. The Shares may be authorized, but unissued,
or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an option exchange program, the
unpurchased Shares which were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated); provided,
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however, that Shares that have
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actually been issued under the Plan shall not be returned to the Plan and shall
not become available for future distribution under the Plan, and the original
purchaser of such Shares did not receive any benefits of ownership of such
Shares, such Shares shall become available for future grant under the Plan. For
purposes of the preceding sentence, voting rights shall not be considered a
benefit of Share ownership.
4. Administration of the Plan.
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(a) Initial Plan Procedure. Prior to the date, if any, upon which
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the Company becomes subject to the Exchange Act, the Plan shall be administered
by the Board or a Committee appointed by the Board.
(b) Plan Procedure after the Date, if any, upon which the Company
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becomes Subject to the Exchange Act.
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(i) Administration with Respect to Directors and Officers.
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With respect to grants of Options to Employees who are also Officers or
Directors of the Company, the Plan shall be administered by (A) the Board if the
Board may administer the Plan in compliance with the rules under Rule 16b-3
promulgated under the Exchange Act or any successor thereto ("Rule 16b-3") under
which Section 16(b) exempt discretionary grants and awards of equity securities
are to be made, or (B) a Committee designated by the Board to administer the
Plan, which Committee shall be constituted to comply with the rules under Rule
16b-3 under which Section 16(b) exempt discretionary grants and awards of equity
securities are to be made. Once appointed, such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board. From
time to time the Board may increase the size of the Committee and appoint
additional members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies, however caused, and remove
all members of the Committee and thereafter directly administer the Plan, all to
the extent permitted by the rules under Rule 16b-3 under which Section 16(b)
exempt discretionary grants and awards of equity securities are to be made.
(ii) Multiple Administrative Bodies. If permitted by Rule
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16b-3, the Plan may be administered by different bodies with respect to
directors, non-director Officers and Employees who are neither directors nor
Officers.
(iii) Administration With Respect to Consultants and Other
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Employees. With respect to grants of Options to Employees or Consultants who
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are neither directors nor Officers of the Company, the Plan shall be
administered by (A) the Board or (B) a committee designated by the Board, which
committee shall be constituted in such a manner as to satisfy the legal
requirements relating to the administration of incentive stock option plans, if
any, of state corporate and securities laws, of the Code, and of any applicable
stock exchange (the "Applicable Laws"). Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the Committee and
appoint additional members thereof, remove members (with or without cause) and
appoint new members in substitution therefor, fill vacancies, however caused,
and remove all members of the Committee and thereafter directly administer the
Plan, all to the extent permitted by the Applicable Laws.
(c) Powers of the Administrator. Subject to the provisions of the
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Plan and, in the case of a Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any relevant authorities,
including the approval, if required, of any stock exchange upon which the Common
Stock is listed, the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Stock,
in accordance with Section 2(k) of the Plan;
(ii) to select the Consultants and Employees to whom Options
may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each such award granted hereunder;
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(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions of any award
granted hereunder;
(vii) to allow Optionees to satisfy withholding tax
obligations by electing to have the Company withhold from the Shares to be
issued upon exercise of an Option that number of Shares having a Fair Market
Value equal to the amount required to be withheld. The Fair Market Value of the
Shares to be withheld shall be determined on the date that the amount of tax to
be withheld is to be determined. All elections by Optionees to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable;
(viii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock covered
by such Option has declined since the date the Option was granted; and
(ix) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan.
(d) Effect of Administrator's Decision. All decisions, determinations
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and interpretations of the Administrator shall be final and binding on all
Optionees and any other holders of any Options.
5. Eligibility.
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(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if otherwise
eligible, be granted additional Options.
(b) Each Option shall be designated in the written option agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5(b), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(c) The Plan shall not confer upon any Optionee any right with respect
to continuation of employment or consulting relationship with the Company, nor
shall it interfere in any way with his or her right or the Company's right to
terminate his or her employment or consulting relationship at any time, with or
without cause.
(d) Upon the Company or a successor corporation issuing any class of
common equity securities required to be registered under Section 12 of the
Exchange Act or upon the Plan being assumed by a corporation having a class of
common equity securities required to be registered under Section 12 of the
Exchange Act, the following limitations shall apply to grants of Options to
Employees:
(i) No Employee shall be granted, in any fiscal year of the
Company, Options to purchase more than 5,000,000 Shares.
(ii) In connection with his or her initial employment, an
Employee may be granted Options to purchase up to an additional 3,000,000 Shares
which shall not count against the limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization as
described in Section 11.
(iv) If an Option is cancelled in the same fiscal year of
the Company in which it was granted (other than in connection with a transaction
described in Section 11), the cancelled Option will be counted
against the limit set forth in subsection (i) above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
6. Term of Plan. The Plan shall become effective upon the earlier to occur
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of its adoption by the Board of Directors or its approval by the stockholders of
the Company, as described in Section 17 of the Plan. It shall continue in
effect for a term of ten (10) years unless sooner terminated under Section 13 of
the Plan.
7. Term of Option. The term of each Option shall be the term stated in the
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Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. However, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant thereof or such shorter
term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
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(a) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the
grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less than one
hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant.
(B) granted to any Employee other than an Employee
described in the preceding paragraph, the per Share exercise price shall be no
less than one hundred percent (100%) of the Fair Market Value per Share on the
date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of the
grant of such Option, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than one hundred ten percent
(110%) of the Fair Market Value per Share on the date of the grant.
(B) granted to any person, the per Share exercise
price shall be no less than eighty-five (85%) of the Fair Market Value per Share
on the date of grant.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant) and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option have been owned by the Optionee for more
than six months on the date of surrender and (y) have a Fair Market Value on the
date of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised, (5) delivery of a properly executed
exercise notice together with such other documentation as the Administrator and
the broker, if applicable, shall require to effect an exercise of the Option and
delivery to the Company of the sale or loan proceeds required to pay the
exercise price, (6) the cancellation of a portion of the Shares subject to the
Option with a Fair Market Value equal to the aggregate exercise price of the
Shares as to which said Option shall be exercised, or (7) any combination of the
foregoing methods of payment. In making its determination as to the type of
consideration to accept, the Administrator shall consider if acceptance of such
consideration may be reasonably expected to benefit the Company.
9. Exercise of Option.
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(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted
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hereunder shall be exercisable at such times and under such conditions as
determined by the Administrator, including performance criteria with respect to
the Company and/or the Optionee, and as shall be permissible under the terms of
the Plan. Except in the case of Options granted to Officers, Directors and
Consultants, Options shall become exercisable at a rate of no less than 20% per
year over five (5) years from the date the Options are granted.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 8(b) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue (or cause
to be issued) such stock certificate promptly upon exercise of the Option. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in
Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the number
of Shares which thereafter may be available, both for purposes of the Plan and
for sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Employment or Consulting Relationship. In the event of
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termination of an Optionee's Continuous Status as an Employee or Consultant with
the Company (but not in the event of an Optionee's change of status from
Employee to Consultant (in which case an Employee's Incentive Stock Option shall
automatically convert to a Nonstatutory Stock Option on the date three (3)
months and one (1) day from the date of such change of status) or from
Consultant to Employee), such Optionee may, but only within such period of time
as is determined by the Administrator, of at least thirty (30) days, with such
determination in the case of an Incentive Stock Option not exceeding three (3)
months after the date of such termination (but in no event later than the
expiration date of the term of such Option as set forth in the Option
Agreement), exercise his or her Option to the extent that Optionee was entitled
to exercise it at the date of such termination. To the extent that Optionee was
not entitled to exercise the Option at the date of such termination, or if
Optionee does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
(c) Disability of Optionee. In the event of termination of an Optionee's
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consulting relationship or Continuous Status as an Employee as a result of his
or her disability, Optionee may, but only within twelve (12) months from the
date of such termination (and in no event later than the expiration date of the
term of such Option as set forth in the Option Agreement), exercise the Option
to the extent otherwise entitled to exercise it at the date of such termination;
provided, however, that if such disability is not a "disability" as such term is
defined in Section 22(e)(3) of the Code, in the case of an Incentive Stock
Option such Incentive Stock Option shall automatically convert to a Nonstatutory
Stock Option on the day three (3) months and one (1) day following such
termination. To the extent that Optionee is not entitled to exercise the Option
at the date of termination, or if Optionee does not exercise such Option to the
extent so entitled within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee, the Option
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may be exercised at any time within twelve (12) months following the date of
death (but in no event later than the expiration of the term of such Option as
set forth in the Notice of Grant), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option at the date of
death. If, at the time of death, the Optionee was not entitled to exercise his
or her entire Option, the Shares covered by the unexercisable portion of the
Option shall immediately revert to the Plan. If, after death, the Optionee's
estate or a person who acquired the right to exercise the Option by bequest or
inheritance does not exercise the Option within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan.
(e) Rule 16b-3. Options granted to persons subject to Section 16(b) of the
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Exchange Act must comply with Rule 16b-3 and shall contain such additional
conditions or restrictions as may be required thereunder to qualify for the
maximum exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
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10. Non-Transferability of Options. Options may not be sold, pledged,
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assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger.
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(a) Changes in Capitalization. Subject to any required action by the
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stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, 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 increase or decrease in the
number of issued shares of Common Stock 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
Administrator, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance 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.
(b) Dissolution or Liquidation. In the event of the proposed
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dissolution or liquidation of the Company, the Administrator shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company with
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or into another corporation, or the sale of substantially all of the assets of
the Company, each outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the Option, the Optionee shall fully vest in and have
the right to exercise the Option as to all of the Optioned Stock, including
Shares as to which it would not otherwise be vested or exercisable. If an Option
becomes fully vested and exercisable in lieu of assumption or substitution in
the event of a merger or sale of assets, the Administrator shall notify the
Optionee in writing or electronically that the Option shall be fully vested and
exercisable for a period of fifteen (15) days from the date of such notice, and
the Option shall terminate upon the expiration of such period. For the purposes
of this paragraph, the Option shall be considered assumed if, following the
merger or sale of assets, the option confers the right to purchase or receive,
for each Share of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders of
Common Stock for each Share held on the effective date of the transaction (and
if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock subject to 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 merger or sale of
assets.
12. Time of Granting Options. The date of grant of an Option shall, for all
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purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Board. Notice
of the determination shall be given to each Employee or Consultant to whom an
Option is so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan. The Board may at any time amend,
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alter, suspend or discontinue the Plan, but no amendment, alteration, suspension
or discontinuation shall be made which would impair the rights of any Optionee
under any grant theretofore made, without his or her written consent. In
addition, to the extent necessary and desirable to comply with Rule 16b-3 under
the Exchange Act or with Sections 162(m) or 422 of the Code (or any other
applicable law or regulation, including the requirements of the NASD or an
established
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stock exchange), the Company shall obtain stockholder approval of any Plan
amendment in such a manner and to such a degree as required.
14. Conditions Upon Issuance of Shares. Shares shall not be issued pursuant
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to the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, 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 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 relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan, will
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at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the
Company to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
16. Agreements. Options shall be evidenced by written agreements in such
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form as the Administrator shall approve from time to time.
17. Stockholder Approval. Continuance of the Plan shall be subject to
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approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained
in the degree and manner required under applicable state and federal law and the
rules of any stock exchange upon which the Common Stock is listed.
18. Information to Optionees and Purchasers. The Company shall provide to
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each Optionee, not less frequently than annually, copies of annual financial
statements. The Company shall also provide such statements to each individual
who acquires Shares pursuant to the Plan while such individual owns such Shares.
The Company shall not be required to provide such statements to key employees
whose duties in connection with the Company assure their access to equivalent
information.
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SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS INC.
1999 STOCK OPTION PLAN : UK RULES FOR EMPLOYEES
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As the duly authorised signatory of the Administrator of the 1999 Stock
Option Plan (the "Plan") established by Seagate Software Information Management
Group Holdings Inc., (the "Company") which is organised and existing under the
General Corporation Law of the State of Delaware, USA, I hereby state and affirm
that the Rules of the Plan apply to the grant of all Options save that the
following provisions are applicable in the administration of the Plan with
regard to such Options to which these UK Rules for Employees (the "UK Rules")
are expressed to extend at the time when the Option is granted. Unless the
context requires otherwise, all expressions used in the UK Rules have the same
meaning as in the Plan, provided that all other words and terms not otherwise
defined shall have the meaning attributed by Schedule 9 which for the purposes
hereof (but for no other purpose) shall take precedence. The Plan and the UK
Rules taken together are referred to hereinafter as "the Sub-Plan". References
in the UK Rules to "Schedule 9" mean Schedule 9 to the Income and Corporation
Taxes Act l988 ("ICTA l988") and references to any statutory enactment shall be
construed as a reference to that enactment as for the time being amended or re-
enacted. For the avoidance of doubt the UK Rules are not intended to provide
rights with respect to Options to which the UK Rules apply in addition to those
rights granted under the Plan. Rather, the UK Rules have been adopted for the
purpose of ensuring that Options to which the UK Rules apply will satisfy the
requirements of Schedule 9 ICTA 1988. Except as expressly provided in the UK
Rules and to the extent necessary to comply with Schedule 9, the UK Rules shall
be interpreted in accordance with the Plan.
1. The shares of Common Stock ("Shares") to be used in the Sub-Plan form part
of the ordinary share capital (as defined in section 832(1) ICTA l988) of
the Company.
2. The Company is a subsidiary, within the meaning of section 736(2) of the
Companies Act 1985, and under the control, as defined by section 840 ICTA
1988, of Seagate Technology, Inc. ("Seagate"). The shares of Common Stock
of Seagate are fully quoted on the New York Stock Exchange which is a
recognised stock exchange as defined in section 841 ICTA 1988.
3. The Shares to be acquired on exercise of the Option will:
(a) be fully paid up;
(b) be not redeemable;
(c) not be subject to any "restrictions" other than restrictions which
attach to all shares of the same class. For the purposes of the UK
Rules, "restrictions" include restrictions which are deemed to attach
to the Shares under any contract, agreement, arrangement or condition
as referred to in paragraph 13 of Schedule 9; and
(d) satisfy the requirements of paragraph 14 of Schedule 9.
4. All Options will be granted with respect to the Shares, or any shares
representing the same, of the Company.
5. No Option will be granted to an Employee under the Sub-Plan, or where an
Option has previously been granted no Option shall be exercised by an
Optionee, if at that time he has, or at any time within the preceding 12
months has had, a material interest for the purposes of Schedule 9 in
either the Company being a close company within the meaning of Chapter I of
Part XI of ICTA l988, or in a company being a close company which has
control of the Company or in a company being a close company and a member
of a consortium (as defined in section l87(7) ICTA l988) which owns the
Company. In determining whether a company is a close company for this
purpose section 4l4(1)(a) ICTA l988 (exclusion of companies not resident in
the United Kingdom) and section 4l5 ICTA l988 (exclusion of certain
companies with listed shares) shall be disregarded.
6. For the avoidance of doubt it is stated that the Company is the grantor as
defined in paragraph 1(1) of Schedule 9.
Page 9 of 32
*(Section 2 of the Plan)
7. For the purposes of the UK Rules the companies which may participate in the
Sub-Plan are the Company and companies controlled by the Company within the
meaning of section 840 ICTA l988, and no others. The Company and any
company which is now or hereafter becomes so controlled by the Company
shall be a participating company.
8. For the purposes of the Sub-Plan the determination of Fair Market Value
under Section 2(k) of the Plan shall conform with the requirements of Part
VIII of the Taxation of Chargeable Gains Act 1992 and be agreed with the
Shares Valuation Division of the Inland Revenue.
*(Section 4 of the Plan)
9. The Administrator may impose objective performance targets the terms and
conditions of which must be set out in the Option Agreement. Where
event(s) occur as a result of which the Administrator considers it fair and
reasonable to adjust a performance target including the imposition of
entirely different objective conditions to the performance target the
Administrator may adjust the performance target provided that such
adjustments do not have the effect of making the performance target more
onerous than it was immediately before the event in question and such
adjustment shall not take effect unless the Company's auditors shall have
confirmed that in their opinion the adjustment is fair and reasonable.
*(Section 5 of the Plan)
10. Subject to Section 5 of the Plan an Option may be granted under the Sub-
Plan to any employee or director of the Company or a company participating
in the Sub-Plan provided that in the case of a director his or her hours of
work are at least 25 hours per week exclusive of meal breaks. No option
shall be granted to Consultants under this Sub-Plan pursuant to the Plan
and all references in the Plan to Consultants shall be disregarded.
11. No Option shall be granted under the Sub-Plan if that would cause the
limits of paragraph 28 of Schedule 9 to be exceeded. The United Kingdom
Sterling equivalent of the aggregate Fair Market Value of Shares subject to
Options at the relevant dates of grant shall be ascertained by taking the
highest buying rate of the spread for the day as shown in the Financial
Times or by taking any other published conversion rate which the United
Kingdom Board of Inland Revenue has agreed is acceptable.
*(Section 8 of the Plan)
12. For the purposes of the Sub-Plan the per Share exercise price shall not be
less than one hundred percent (100%) of the Fair Market Value of a Share.
13. Upon exercise of an Option under the Sub-Plan payment shall be made in full
in cash from the Optionee's own resources or from the proceeds of a loan
from the Company or a third party and notwithstanding the provisions of
Section 8(b) of the Plan payment may not be made by delivery of Shares or a
promissory note. Nothing in the UK Rules shall prohibit an Optionee from
pledging Shares to secure a loan with which to exercise his or her Option.
*(Section 9 of the Plan)
14. Subject to Section 9 of the Plan the Company shall, as soon as practicable
but not later than 30 days after the date on which the Option is exercised,
cause to be registered in the Optionee's name the number of Shares and
shall deliver or mail to the Optionee a share certificate or certificates
representing the Shares then purchased subject to any delay necessary to
complete (a) such registration or other qualification of such Shares under
any state or federal law, rule or regulation as the Company may determine
to be necessary or advisable and (b) the making of provision for the
payment or withholding of any taxes required to be withheld pursuant to any
applicable law, in respect of such Shares. Except for restrictions which
are permitted under paragraph 13(2) of
Page 10 of 32
Schedule 9 and those imposed under any applicable federal or state law or
requirements of any stock exchange Shares shall be identical and rank pari
passu in all respects with shares of the same class then in issue.
*(Section 11 of the Plan)
15. Whilst the Sub-Plan remains approved under Schedule 9 ICTA 1988 no
adjustment pursuant to any of the provisions of the Plan shall be made to
any Option which is subject to the UK Rules unless such adjustment would be
permitted under paragraph 29 of Schedule 9 and where so permitted no such
adjustment shall take effect unless the approval of the United Kingdom
Board of Inland Revenue shall have been obtained thereto. For the purposes
of this Rule 14 adjustments under paragraph 29 shall be taken to mean
adjustments to the exercise price of a Share and the number and nominal
value of a Share.
16. An Option which is subject to the UK Rules shall not be assumed or
substituted under Section 11(c) of the Plan [Merger or Asset Sale] and may
be exercised to the extent permitted by the Administrator. Options not
exercised at the end of the period of notice shall terminate in accordance
with Section 11(c) of the Plan.
*(Section 12 of the Plan)
17. Notwithstanding Section 12 of the Plan the date of grant of an Option to
which the UK Rules apply shall be a date which is no later than 30 days
after the date on which the exercise price for the Shares is determined.
*(Section 13 of the Plan)
18. If the approval status of the Sub-Plan granted under Schedule 9 ICTA 1988
is to be retained then no amendment or modification to the UK Rules or to
the Plan in so far as it relates to Options granted or to be granted under
the Sub-Plan shall take effect until such amendment or modification shall
have been approved by the United Kingdom Board of Inland Revenue. The
Company undertakes to provide to the United Kingdom Board of Inland Revenue
details of any amendments to the Sub-Plan as soon as possible for this
purpose.
Signed:_____________________________
Authorised Signatory
Dated :_____________________________
Page 11 of 32
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP
HOLDINGS, INC.
--------------------------------------------------------------------------------
1999 STOCK OPTION PLAN
UK RULES FOR EMPLOYEES
--------------------------------------------------------------------------------
EXPLANATORY NOTES
ESS (Consultants) Ltd
Kensway House
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
TEL: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Essex
FAX: ▇▇▇▇ ▇▇▇ ▇▇▇▇ IG1 1TL
Page 12 of 32
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP HOLDINGS, INC.
1999 STOCK OPTION PLAN :
UK RULES FOR EMPLOYEES
(together referred to as the "Sub-Plan")
Explanatory Notes
1. The aim of these notes is to explain how the Sub-Plan works and the UK
taxation benefits which it offers (assuming that participants are resident and
ordinarily resident in the UK for tax purposes both at the date of grant and the
date of exercise of their Stock Options). These notes are purely explanatory
and cannot override the detailed rules of the Sub-Plan.
Which rules govern the Sub-Plan?
2. The rules which govern the Sub-Plan are:-
(a) the rules of the Seagate Software Information Management Group
Holdings, Inc. 1999 Stock Option Plan (the "Plan"), established under
US law, by which Seagate Software Information Management Group
Holdings, Inc. (the "Company") may grant options over its shares of
Common Stock ("shares") to employees of participating companies; and
(b) special rules for UK participants (the "UK Rules").
Together, these two elements constitute an approved share option scheme under
the UK tax legislation which offers favourable tax treatment.
What is a Stock Option?
3. A Stock Option (an "option") is a right to purchase a stated number of
shares of the Company at a price (the "Exercise Price") which is not less than
the Fair Market Value of the shares at the date the option is granted. This
right to purchase shares can be exercised later when the value of the shares has
increased. There is no requirement to exercise the option granted under the Sub-
Plan if an option-holder decides not to do so.
What is Fair Market Value?
4. The Fair Market Value of a Share is determined in accordance with the rules
of the Sub-Plan and is the value determined by the Administrator of the Plan and
agreed by the Board of Inland Revenue for the purposes of the Sub-Plan on the
date the option is granted.
How do I know the Exercise Price of my shares?
Page 13 of 32
5. The Exercise Price will be set out in the Notice of Stock Option Grant
which forms part of the Stock Option Agreement.
Who is eligible to participate?
6. Employees and full-time directors of the Company and all subsidiary
companies under its control. A full-time director is taken to mean a director
who works not less than 25 hours per week exclusive of meal breaks. Consultants
are not eligible to participate in the Sub-Plan.
How do I participate?
7. You will be sent a copy each of the Plan and UK Rules together with your
Stock Option Agreement. The Notice of Grant, which forms part of the Stock
Option Agreement, will set out among other information the number of shares over
which you have been granted options, the price per share at which you may
purchase shares and the date of grant of your option.
What is the maximum number of shares over which options which may be granted to
me under the Sub-Plan?
8. The number of shares over which options may be granted is at the
discretion of the Administrator of the Plan. Under the Sub-Plan no option can be
granted to you which would cause the aggregate exercise price of the shares
subject to unexercised options which you hold and which have been granted to you
under the Sub-Plan and any other approved scheme established by the Company or
any associated company of the Company to exceed or further exceed
(Pounds)30,000.
9. The aggregate exercise price of shares under unexercised options for
the purpose of this test is the number of shares over which you have options
multiplied by their exercise price translated into pounds sterling at the
conversion rate relevant at the dates when the options were granted.
How do I exercise my stock options?
10 The method of exercise of your option is set out in clause 2 of the Stock
Option Agreement. You should complete your Exercise Notice and the
Investment Representation Statement (Exhibit B) and mail, together with
full payment (see clause 2(e) of the Stock Option Agreement) for the shares
exercised, to the Administrator of the Plan.
What conditions must be satisfied so that I may obtain relief from UK Income
tax?
11. Assuming that the Sub-Plan remains approved at the time of the
exercise no charge to United Kingdom income tax will arise if you comply with
the following conditions:
(a) You must exercise the option only during the period which begins three
years from the date of grant of the option and ends ten years from the
date of grant. Each grant is looked at separately for this purpose.
(b) You must not exercise the option within three years of the date when
you last exercised an option obtained under any Inland Revenue
approved plan (whether run by your present employer or any other
company) and in respect of which you received relief from United
Kingdom income tax upon exercise of the option. A partial exercise is
counted as an exercise for this purpose. All options (including
partial exercises) exercised on the same day count as one exercise.
12. By way of illustration only, if you were granted an option over 1,000
shares under the Sub-Plan on say 5 March 1999 and you made a partial exercise
over 750 shares on 5 March 2002, you would enjoy income tax relief on this
exercise but you would have to wait until 5 March 2005 before you could next
obtain income tax relief. You could
page 14 of 32
exercise the balance of your option which vests at any time after 5 March 2002,
but if the exercise took place before 5 March 2005, you would be liable to an
income tax charge under Schedule E on, broadly, the difference between the
market value of the 250 shares on the date of exercise less the price you paid
for the shares. You should consider seeking professional advice on the issues
involved in computing the taxable gain (see the illustrative examples in the
Appendix).
13. Where the conditions in paragraph 11 above are not satisfied and the
option is granted under the Sub-Plan income tax will be payable under self
assessment on 31 January following the year in which the option is exercised.
Options granted after 5 April 1999 under the Plan and which are not subject to
the UK Rules are treated differently for UK tax purposes. The notional gain
attached to these options is subject to income tax and national insurance under
PAYE at the time you exercise the option if "trading arrangements" exist at the
time. The Inland Revenue interpret the legislation very widely and they will
consider that trading arrangements exist if at the time of exercise of the
option there is an understanding that the shares will be repurchased at that
time or some time in the future. Where no trading arrangements exist income tax
chargeable on the gain will be payable under self assessment on 31 January
following the year in which the option is exercised.
What are the tax implications on sale of the shares acquired under an option?
14. A liability to capital gains tax may arise when the shares are sold.
Ignoring taper relief, the gain will normally be the difference between the
proceeds of sale and the total of:
(a) any amount on which you paid income tax (i.e. if the option granted
under the Sub-Plan did not satisfy the conditions in paragraph 11
above or if the option was granted under the Plan without the UK Rules
applying ) at the exercise of the option;
(b) the amount paid for the shares at the date of exercise; and
(c) incidental costs of sale.
15. For the tax year 1999/00 the first (Pounds)7,100 of all net chargeable
gains is exempt from capital gains tax and, in addition, taper relief may be
due. (Taper will have no effect if the shares are held for two years or less and
maximum effect if the shares are held for ten years or more.) The rate of tax
applicable to the balance of the chargeable gain will depend upon the
individual's income and chargeable gains from other sources, as illustrated in
Example 2. The normal due date for capital gains tax is 31 January after the end
of the year of assessment in which the gain is made. Note that if the shares are
sold for foreign currency (e.g. dollars), a further capital gain or loss could
arise on any increase or decrease in the value of the dollars during any period
you have held them to the date you exchange the dollars for pounds sterling. You
are advised to seek professional advice before you sell shares.
If I exercise an option which I have acquired under the Sub-Plan, what do I show
on my tax return?
16. Provided that you exercise the option in accordance with the Sub-Plan
rules, that the Sub-Plan remains approved at the time of exercise, and that you
comply with the further conditions set out in paragraph 11 above no income tax
will be due and you need not show the details on your tax return. If you
exercise the option in circumstances not qualifying for tax relief the gain will
be liable to income tax and you should complete boxes 2.7, 2.8, 2.9 on page S1
and boxes 2.34, 2.35, 2.36, 2.37, 2.38 and 2.40 of page S2 of the share schemes
section of the self assessment tax return form. You should consider seeking
professional assistance in calculating the gain on shares and completing your
tax return. In any event, the Inland Revenue will be aware of options which have
been exercised under the Sub-Plan, as the Company is obliged to submit an annual
return in respect of the Sub-Plan which will show this exercise. If you sell the
shares following exercise further details must be disclosed (see paragraph 18
below).
Assuming I have complied with the conditions in paragraph 11 above, if I sell
shares which I have acquired under the Sub-Plan, what do I show on my tax
return?
17. Sale of the shares constitutes a chargeable event for United Kingdom
capital gains tax purposes. As mentioned in paragraphs 14 and 15 above, your
charge to capital gains tax will be based on the net proceeds you received from
sale of the shares less the price you paid for them (including any amount on
which you paid income tax) subject to any taper relief and the annual exemption
limit not otherwise used. An example is set out in the Appendix.
Page 15 of 32
18. On sale/disposal of any shares acquired on exercise of an option you
will need to complete the capital gains section of the self assessment tax
return. Any foreign currency gain or loss should also be declared. Again, you
should consider taking professional advice if you are in this position and are
considering the sale of shares.
If I die while still an employee of the company, do my options lapse?
19. In this unhappy event your personal representatives will have a period
which ends on the earlier of expiry of twelve (12) months from the date of death
or the date the option term expires in which to exercise un-expired options to
the extent that they were exercisable at the date of death. Providing that
exercise takes place within 10 years of grant no income tax will be chargeable
even though the further conditions set out in paragraph 11 above may not be
satisfied.
Queries
20. The exercise of an option can have substantial tax effects and you are
advised to seek professional advice before exercising an option. Any queries on
the operation of the Sub-Plan should be addressed to
........................................................
Page 16 of 32
APPENDIX
Examples illustrating exercise of options and sale of shares
Example I
Facts: On 5 March 1999 an employee is granted an option over 1,000 shares at
$48 per share.
The employee exercises an option over 1,000 shares held by him on 5 March 2002
at a time when:
(a) the exchange rate stands at $1.65 = (Pounds)1;
(b) the then market value of a share stands at $81; and
(c) the Sub-Plan remains approved by the Inland Revenue at the date of
exercise.
Exercise of the Stock Option
The exercise of the stock options will not give rise to any income tax liability
since:
(a) the exercise has taken place within 10 years of the date of the grant
(5 March 1999);
(b) the exercise is more than 3 years after the date of grant (5 March
1999) and is not made within 3 years of an earlier exercise of stock
options (granted under this or any other plan) which qualified for
favourable income tax treatment.
The optionee pays (Pounds)29,091 to the company for the shares computed as
follows:-
1,000 shares subject to options granted 5 March 1999, exercise price $48
per share.
Exercise price = 1,000 x $48 = $48,000
sterling equivalent = $48,000 = (Pounds)29,091
-------
1.65
Page 17 of 32
Example 2 Sale of shares
The same employee sells the same shares on 7 March 2002.
Gain on shares
Assume the net sale price per share after commission, duties etc is $80 per
share and that the exchange rate on the date of sale is still $1.65 = (Pounds)1
net sale proceeds on 7 March 2002 = 1,000 x $80 = $80,000
(Pounds)
net sale proceeds in (Pounds) sterling = 80,000 = 48,485
------
1.65
less price paid on 5 March 2002 = 29,091
--------------
Gain on shares (Pounds)19,394
==============
Gain on currency
(Pounds)
If the foreign currency is exchanged for pounds sterling on 1 April 2002
at a time when the exchange rate is $1.60 = (Pounds)1 the
sterling received will be 80,000 = 50,000
------
1.60
The foreign currency was received on a date when the exchange rate
was $1.65 = (Pounds)1 therefore the "cost" of the foreign currency was
80,000 = 48,485
------ --------------
1.65
gain on currency = 1,515
add gain on shares 19,394
--------------
Total gain on currency and shares = 20,909
Less annual exemption (assuming 1999/00 rate and that no part of it
has been utilised against other gains) 7,100
--------------
net chargeable gain = (Pounds)13,809
--------------
Since in this example the shares have been held for a short period only taper
relief will not be due.
Page 18 of 32
(Pounds)
Net chargeable gain as above = 13,809
Assuming that tax rates remain unchanged and the employee paid
tax on salary as follows: 1,500 @ 10%
20,000 @ 23%
then his marginal rate is 6,500 @ 23%
28,000
and the balance will be chargeable at 40%
Capital gains tax will be as follows:
6,500 @ 23% = 1,495
7,309 @ 40% = 2,923
----------- ------
Capital gains tax 4,418
------
Net benefit to the participant (Pounds)
▇▇▇▇ on shares realised 19,394
Gain on currency realised 1,515
------
Total gains realised 20,909
less capital gains tax to pay 4,418
------
Net benefit received by the participant = (Pounds) 16,491
If non-domicile in the UK and no gain is remitted
to the UK no capital gains tax is due either and
the net benefit will be = (Pounds) 19,394
Page 19 of 32
Example 3
Assume the facts in the previous example are the same except that the
participant transfers 500 shares to his spouse on 6 March 2002. They each then
sell 250 shares each on 7 March 2002 and the balance of 250 shares held by each
spouse are sold on 10 April 2002. For simplicity sake assume that the exchange
rate remains unchanged so that there is no currency gain or loss.
The position will be:
Husband Wife Total
2001/2
------
Sale of 250 shares on 7 March 2002 @ $80 $20,000 $20,000 $40,000
Less cost - 250 shares @ $48 12,000 12,000 24,000
------- ------- -------
Gain on shares $ 8,000 $ 8,000 $16,000
------- ------- -------
Sterling equivalent of gain $8,000 (Pounds)4,848 (Pounds)4,848 (Pounds)9,696
------
1.65
Less annual allowance (assume 1999/00 rate) 7,100 7,100 14,200
------- ------- -------
Chargeable to tax nil nil nil
Capital gains tax nil
2002/3
------
The shares sold on 10 April 2002 will also provide a gain of (Pounds)9,696.
The total gain of (Pounds)19,392 is covered by the annual allowance (assumed
at (Pounds)7,100 per individual per annum) with no income tax or capital gains
tax to pay.
Net benefit to both spouses (Pounds)19,392
Please note that the above examples are for illustrative purposes only and you
should obtain professional advice at the time you exercise options.
page 20 of 32
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
1999 STOCK PLAN : UK RULES FOR EMPLOYEES
(together referred to as the "Sub-Plan")
STOCK OPTION AGREEMENT
----------------------
Unless otherwise defined herein, the terms defined in the 1999 Stock Option Plan
(the"Plan") as extended by the UK Rules for Employees (the "UK Rules") shall
have the same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
----------------------------
[Optionee's Name]
-----------------
You have been granted an option to purchase Common Stock of the Company, subject
to the terms and conditions of the Sub-Plan and this Option Agreement, as
follows:
Grant Number _________________________
Date of Grant _________________________
Vesting Commencement _________________________
Exercise Price per Share $________________________
Total Number of Shares Granted * _________________________
Total Exercise Price $_________________________
Type of Option: ___ Incentive Stock Option ___ Nonstatutory Stock Option
Term/Expiration Date _________________________
Vesting Schedule:
----------------
You may exercise this Option, in whole or in part, according to the following
vesting schedule: 25% of the Shares subject to the Option shall vest in the
first year on the anniversary of the Vesting Commencement Date. Thereafter
1/48/th/ of the Shares subject to the Option shall vest each month on the same
day of the month as the Vesting Commencement Date so that all Options will be
vested at the end of the 48/th/ month after the Vesting Commencement Date.
Termination Period:
------------------
You may exercise this Option for thirty (30) days after your employment or
consulting relationship with the Company terminates, or for such longer period
upon your death or disability as provided in this Option Agreement. If your
status changes from Employee to Consultant or Consultant to Employee, this
Option Agreement shall remain in effect. In no case may you exercise this Option
after the Term/Expiration Date as provided above.
II. AGREEMENT
---------
Page 21 of 32
(a) Grant of Option. Seagate Software Information Management Group
---------------
Holdings, Inc. a Delaware corporation (the "Company"), hereby grants to the
Optionee named in the Notice of Grant (the "Optionee"), an option (the "Option")
to purchase the total number of shares of Common Stock (the "Shares") set forth
in the Notice of Grant, at the exercise price per share set forth in the Notice
of Grant (the "Exercise Price") subject to the terms, definitions and provisions
of the Sub-Plan which is incorporated herein by reference. Unless otherwise
defined herein, the terms defined in the Plan shall have the same defined
meanings in this Option Agreement.
If designated in the Notice of Grant as an Incentive Stock Option ("ISO"), this
Option is intended to qualify as an Incentive Stock Option as defined in Section
422 of the Code. Nevertheless, to the extent that it exceeds the $100,000 rule
of Code Section 422(d), this Option shall be treated as a Nonstatutory Stock
Option ("NSO").
(b) Exercise of Option.
------------------
(A) Right to Exercise. This Option shall be exercisable
-----------------
during its term in accordance with the Vesting Schedule set out in the Notice of
Grant and with the applicable provisions of the Sub-Plan and this Option
Agreement. In the event of Optionee's death, disability or other termination of
the employment or consulting relationship, this Option shall be exercisable in
accordance with the applicable provisions of the Sub-Plan and this Option
Agreement.
(B) Method of Exercise. This Option shall be exercisable by
------------------
written notice (in the form attached as Exhibit A) which shall state the
---------
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised, and such other representations and agreements as to
the holder's investment intent with respect to such shares of Common Stock as
may be required by the Company pursuant to the provisions of the Sub-Plan. Such
written notice shall be signed by the Optionee and shall be delivered in person
or by certified mail to the Secretary of the Company. The written notice shall
be accompanied by payment of the Exercise Price. This Option shall be deemed to
be exercised upon receipt by the Company of such written notice accompanied by
the Exercise Price.
No Shares will be issued pursuant to the exercise of an Option unless such
issuance and such exercise shall comply with all relevant provisions of law and
the requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
(c) Optionee's Representations. In the event the Shares purchasable
--------------------------
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Optionee shall, if required by the Company, concurrently with the exercise of
all or any portion of this Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit B, and shall
---------
read the applicable rules of the Commissioner of Corporations attached to such
Investment Representation Statement.
(d) Lock-Up Period. Optionee hereby agrees that if so requested by the
--------------
Company or any representative of the underwriters (the "Managing Underwriter")
in connection with any registration of the offering of any securities of the
Company under the Securities Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period (or such
longer period as may be requested in writing by the Managing Underwriter and
agreed to in writing by the Company) (the "Market Standoff Period") following
the effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that such restriction shall apply only to
the first registration statement of the Company to become effective under the
Securities Act that includes securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restrictions until the end of such Market Standoff Period.
Page 22 of 32
(e) Method of Payment. Payment of the Exercise Price shall be by any of
-----------------
the following, or a combination thereof, at the election of the Optionee:
(A) cash;
(B) check; or
(C) delivery of a properly executed exercise notice together
with such other documentation as the Administrator and the broker, if
applicable, shall require to effect an exercise of the Option and delivery to
the Company of the sale or loan proceeds required to pay the Exercise Price.
(f) Restrictions on Exercise. This Option may not be exercised until such
------------------------
time as the Plan has been approved by the stockholders of the Company, or if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board.
(g) Termination of Relationship. In the event an Optionee's Continuous
---------------------------
Status as an Employee terminates, Optionee may, to the extent otherwise so
entitled at the date of such termination (the "Termination Date"), exercise this
Option during the Termination Period set out in the Notice of Grant. To the
extent that Optionee was not entitled to exercise this Option at the date of
such termination, or if Optionee does not exercise this Option within the time
specified herein, the Option shall terminate.
(h) Disability of Optionee. In the event of termination of an Optionee's
----------------------
Continuous Status as an Employee as a result of his or her disability, Optionee
may, but only within twelve (12) months from the date of such termination (and
in no event later than the expiration date of the term of such Option as set
forth in the Option Agreement), exercise the Option to the extent otherwise
entitled to exercise it at the date of such termination; provided, however, that
if such disability is not a "disability" as such term is defined in Section
22(e)(3) of the Code, in the case of an Incentive Stock Option such Incentive
Stock Option shall cease to be treated as an Incentive Stock Option and shall be
treated for tax purposes as a Nonstatutory Stock Option on the day three months
and one day following such termination. To the extent that Optionee was not
entitled to exercise the Option at the date of termination, or if Optionee does
not exercise such Option to the extent so entitled within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(i) Death of Optionee. In the event of termination of Optionee's
-----------------
Continuous Status as an Employee as a result of the death of Optionee, the
Option may be exercised at any time within twelve (12) months following the date
of death (but in no event later than the date of expiration of the term of this
Option as set forth in the Notice of Grant), by Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent the Optionee could exercise the Option at the date of death.
(j) Non-Transferability of Option. This Option may not be transferred in
-----------------------------
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
(k) Term of Option. This Option may be exercised only within the term set
--------------
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Sub-Plan and the terms of this Option. The limitations set
out in Section 7 of the Plan regarding Options designated as Incentive Stock
Options and Options granted to more than ten percent (10%) stockholders shall
apply to this Option.
Page 23 of 32
(l) Tax Consequences. The UK tax consequences relating to this Option is
----------------
complex and a separate explanatory note will be issued to each Optionee. THE
OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
(m) Entire Agreement; Governing Law. The Sub-Plan is incorporated herein by
-------------------------------
reference. The Sub-Plan and this Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee. This agreement is governed by California law except for
that body of law pertaining to conflict of laws.
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.,
a Delaware corporation.
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Operating Officer,
Seagate Software Information Management Group Holdings, Inc.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
OPTION HEREOF IS EARNED ONLY BY EMPLOYMENT AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS
AGREEMENT, NOR IN THE COMPANY'S STOCK OPTION PLAN, NOR THE UK RULES WHICH ARE
INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY, NOR SHALL IT INTERFERE IN
ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S
EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
Page 24 of 32
Optionee acknowledges receipt of a copy of the Sub-Plan and represents that
Optionee is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Sub-Plan and this Option in their entirety, has had an opportunity
to obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Sub-Plan or this Option.
Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
Dated: _______________________ _________________________
Optionee (Print Name)
_________________________
Optionee Signature
Employee ID#: ________________ _________________________
Work Phone # _________________ _________________________
Home Phone # _________________ _________________________
_________________________
Mailing Address (Residence)
Please print clearly
DESIGNATION OF BENEFICIARY
--------------------------
In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all of my options that are unexercised at that time.
NAME: (Please Print) ___________________________________________________
(First)(Middle)(Last)
Relationship:____________________________________________________________
Address:_________________________________________________________________
_________________________________________________________________________
Dated:________________
Signature of Optionee:___________________________________________________
Page 25 of 32
(For use with the UK Sub-Plan)
EXHIBIT A
---------
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
1999 STOCK OPTION PLAN :UK RULES FOR EMPLOYEES
(together referred to as the "Sub-Plan")
EXERCISE NOTICE
Seagate Software Information Management Group Holdings, Inc.
Attn: Stock Plan Administration
P.O. Box 66360
Scotts Valley, CA 95067-0360
1. Exercise of Option. Effective as of today, __________________, 20___,
------------------
the undersigned ("Optionee") hereby elects to exercise Optionee's option to
purchase ______________ (number) shares of the Common Stock (the "Shares") of
Seagate Software Information Management Group Holdings, Inc. (the "Company")
under and pursuant to the 1999 Stock Option Plan and the UK Rules for Employees,
including all amendments thereto (together referred to as the "Sub-Plan") and
the [ ] Incentive [ ] Nonstatutory Stock Option Agreement dated
_________________, 20________ (the "Option Agreement").
2. Representations of Optionee. Optionee acknowledges that Optionee has
---------------------------
received, read and understood the Sub-Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
3. Rights as Stockholder. Until the stock certificate evidencing such
---------------------
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such stock certificate promptly
after the Option is exercised. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 11 of the Plan.
Optionee shall enjoy rights as a stockholder until such time as Optionee
disposes of the Shares or the Company and/or its assignee(s) makes available the
Company's First Offer to Purchase as hereunder. Upon such event, Optionee
shall have no further rights as a holder of the Shares so purchased except the
right to receive payment for the Shares so purchased in accordance with the
provisions of this Agreement, and Optionee shall forthwith cause the
certificate(s) evidencing the Shares so purchased to be surrendered to the
Company for transfer or cancellation.
4. Company's First Offer to Purchase. Before any Shares held by Optionee or
---------------------------------
any transferee (either being sometimes referred to herein as the "Holder") may
be sold or otherwise transferred (including transfer by gift or operation of
law), the Company or its assignee(s) may offer to purchase the Shares on the
terms and conditions set forth in this Section (the "First Offer to Purchase").
(a) Notice of Proposed Transfer. The Holder of the Shares shall
---------------------------
deliver to the Company a written notice (the "Notice") stating: (i) the Holder's
bona fide intention to sell or otherwise transfer such Shares; (ii) the name of
each proposed Optionee or other transferee ("Proposed Transferee"); (iii) the
number of Shares to be transferred to each Proposed Transferee; and (iv) the
bona fide cash price or other consideration for which the Holder proposes to
transfer the Shares (the "Offered Price"), and the Holder shall offer the Shares
at the Offered Price to the Company or its assignee(s).
Page 26 of 32
(b) Exercise of the First Offer to Purchase. At any time within
---------------------------------------
thirty (30) days after receipt of the Notice, the Company and/or its assignee(s)
may, by giving written notice to the Holder, elect to purchase all, but not less
than all, of the Shares proposed to be transferred to any one or more of the
Proposed Transferees, at the purchase price determined in accordance with
subsection (c) below.
(c) Purchase Price. The purchase price ("Purchase Price") for the
--------------
Shares purchased by the Company or its assignee(s) under this Section shall be
the Offered Price. If the Offered Price includes consideration other than cash,
the cash equivalent value of the non-cash consideration shall be determined by
the Board of Directors of the Company in good faith.
(d) Payment. Payment of the Purchase Price shall be made, at the
-------
option of the Company or its assignee(s), in cash (by check), by cancellation of
all or a portion of any outstanding indebtedness of the Holder to the Company
(or, in the case of repurchase by an assignee, to the assignee), or by any
combination thereof within 30 days after receipt of the Notice or in the manner
and at the times set forth in the Notice.
(e) ▇▇▇▇▇▇'s Right to Transfer. If all of the Shares proposed in
--------------------------
the Notice to be transferred to a given Proposed Transferee are not purchased by
the Company and/or its assignee(s) as provided in this Section, then the Holder
may sell or otherwise transfer such Shares to that Proposed Transferee at the
Offered Price or at a higher price, provided that such sale or other transfer is
consummated within 120 days after the date of the Notice and provided further
that any such sale or other transfer is effected in accordance with any
applicable securities laws and the Proposed Transferee agrees in writing that
the provisions of this Section shall continue to apply to the Shares in the
hands of such Proposed Transferee. If the Shares described in the Notice are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to the Company, and the Company and/or its assignees shall again be given
the opportunity to make the First Offer to Purchase before any Shares held by
the Holder may be sold or otherwise transferred.
(f) Exception for Certain Family Transfers. Anything to the
--------------------------------------
contrary contained in this Section notwithstanding, the transfer of any or all
of the Shares during the Optionee's lifetime or on the Optionee's death by will
or intestacy to the Optionee's immediate family or a trust for the benefit of
the Optionee's immediate family shall be exempt from the provisions of this
Section. "Immediate Family" as used herein shall mean spouse, lineal descendant
or antecedent, father, mother, brother or sister. In such case, the transferee
or other recipient shall receive and hold the Shares so transferred subject to
the provisions of this Section, and there shall be no further transfer of such
Shares except in accordance with the terms of this Section.
(g) Termination of the First Offer to Purchase. The First Offer to
------------------------------------------
Purchase shall terminate as to any Shares 90 days after the first sale of Common
Stock of the Company to the general public pursuant to a registration statement
filed with and declared effective by the Securities and Exchange Commission
under the Securities Act of 1933, as amended.
5. Transferability of the Shares.
-----------------------------
(a) Transfer or sale of the Shares is subject to restrictions on
transfer imposed by any applicable state and federal securities laws. Any
transferee shall hold such Shares subject to all the provisions hereof with
respect to any Shares purchased by Optionee and shall acknowledge the same by
signing a copy of this Exercise Notice.
6. Ownership, Voting Rights, Duties. This Exercise Notice shall not affect
--------------------------------
in any way the ownership, voting rights or other rights or duties of Optionee,
except as specifically provided herein.
7. Legends. The share certificate evidencing the Shares issued hereunder
-------
shall be endorsed with the following legend (in addition to any legend required
under applicable federal and state securities laws):
8. Tax Consultation. Optionee understands that Optionee may suffer adverse
----------------
tax consequences as a result of Optionee's purchase or disposition of the
Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
Page 27 of 32
9. Restrictive Legends and Stop-Transfer Orders.
---------------------------------------------
(a) Legends. Optionee understands and agrees that the Company
-------
shall cause the legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing ownership of the Shares
together with any other legends that may be required by the Company or by state
or federal securities laws:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE
OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN CONDITIONS ON
TRANSFER, AND FIRST OFFERS TO PURCHASE AS SET FORTH IN THE EXERCISE NOTICE
BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY
BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH CONDITIONS ARE
BINDING.
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
Optionee understands that transfer of the Shares may be restricted by
Section 260.141.11 of the Rules of the California Corporations Commissioner, a
copy of which is attached to Exhibit B, the Investment Representation Statement.
(b) Stop-Transfer Notices. Optionee agrees that, in order to
---------------------
ensure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to
-------------------
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Exercise Notice or (ii) to treat as
owner of such Shares or to accord the right to vote or pay dividends to any
Optionee or other transferee to whom such Shares shall have been so transferred.
10. Successors and Assigns. The Company may assign any of its rights under
----------------------
this Exercise Notice to single or multiple assignees, and this Exercise Notice
shall inure to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this Exercise Notice
shall be binding upon Optionee and his or her heirs, executors, administrators,
successors and assigns.
11. Interpretation. Any dispute regarding the interpretation of this
--------------
Exercise Notice shall be submitted by Optionee or by the Company forthwith to
the Company's Board of Directors or the committee thereof that administers the
Plan, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Board or committee shall be final and
binding on the Company and on Optionee.
12. Governing Law; Severability. This Exercise Notice shall be governed
---------------------------
by and construed in accordance with the laws of California excluding that body
of law pertaining to conflicts of law. Should any provision of this Exercise
Notice be determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
13. Notices. Any notice required or permitted hereunder shall be given in
-------
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
14. Further Instruments. The parties agree to execute such further
-------------------
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Exercise Notice.
Page 28 of 32
15. Delivery of Payment. Optionee herewith delivers to the Company the
-------------------
full Exercise Price for the Shares.
16. Entire Agreement. The Sub-Plan and Notice of Grant/Option Agreement
----------------
are incorporated herein by reference. This Exercise Notice, the Sub-Plan, the
Option Agreement and the Investment Representation Statement constitute the
entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee.
Submitted By: OPTIONEE
_________________________________________________
(Print Name)
_________________________________________________
(Signature)
Address: ________________________________________
________________________________________
________________________________________
Phone:______________________________
Email Address: _______________________________
Accepted By:
Seagate Software Information Management Group Holdings, Inc.
By:_________________________________________________
Its:________________________________________________
Seagate Software Information Management Group Holdings, Inc.
Attn: Stock Plan Administration
P.O. Box 66360
Scotts Valley, CA 95067-0360
Page 29 of 32
EXHIBIT B
---------
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: _______________________________________________
( print name )
COMPANY: SEAGATE SOFTWARE
INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
SECURITY: COMMON STOCK
AMOUNT: _______________________________________ (number of shares)
DATE: __________________________________
In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
(a) Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Optionee understands that the certificate evidencing the Securities
will be imprinted with a legend which prohibits the transfer of the Securities
unless they are registered or such registration is not required in the opinion
of counsel satisfactory to the Company, a legend prohibiting their transfer
without the consent of the Commissioner of Corporations of this state and any
other legend required under applicable state securities laws.
(c) Optionee understands that the certificate evidencing the Securities
will be imprinted with a legend which prohibits the transfer of the Securities
without the consent of the Commissioner of Corporations of California. Optionee
has read the applicable Commissioner's Rules with respect to such restriction, a
copy of which is attached.
Signature of Optionee:
_______________________________________
Date: __________________________, 20___
Page 30 of 32
ATTACHMENT 1
STATE OF CALIFORNIA - CALIFORNIA ADMINISTRATIVE CODE
----------------------------------------------------
Title 10. Investment - Chapter 3. Commissioner of Corporations
260.141.11: Restriction on Transfer.
---------- -----------------------
(a) The issuer of any security upon which a restriction on transfer
has been imposed pursuant to Sections 260.102.6, 260.141.10 or 260.534 shall
cause a copy of this section to be delivered to each issuee or transferee of
such security at the time the certificate evidencing the security is delivered
to the issuee or transferee.
(b) It is unlawful for the holder of any such security to consummate a
sale or transfer of such security, or any interest therein, without the prior
written consent of the Commissioner (until this condition is removed pursuant to
Section 260.141.12 of these rules), except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in Subdivision (i) of Section 25102
of the Code or Section 260.105.14 of these rules;
(4) to the transferor's ancestors, descendants or spouse, or
any custodian or trustee for the account of the transferor or the transferor's
ancestors, descendants, or spouse; or to a transferee by a trustee or custodian
for the account of the transferee or the transferee's ancestors, descendants or
spouse;
(5) to holders of securities of the same class of the same
issuer;
(6) by way of gift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code
(either acting as such or as a finder) to a resident of a foreign state,
territory or country who is neither domiciled in this state to the knowledge of
the broker-dealer, nor actually present in this state if the sale of such
securities is not in violation of any securities law of the foreign state,
territory or country concerned;
(8) to a broker-dealer licensed under the Code in a principal
transaction, or as an underwriter or member of an underwriting syndicate or
selling group;
(9) if the interest sold or transferred is a pledge or other
lien given by the Optionee to the seller upon a sale of the security for which
the Commissioner's written consent is obtained or under this rule not required;
(10) by way of a sale qualified under Sections 25111, 25112,
25113 or 25121 of the Code, of the securities to be transferred, provided that
no order under Section 25140 or subdivision (a) of Section 25143 is in effect
with respect to such qualification;
(11) by a corporation to a wholly owned subsidiary of such
corporation, or by a wholly owned subsidiary of a corporation to such
corporation;
(12) by way of an exchange qualified under Section 25111, 25112
or 25113 of the Code, provided that no order under Section 25140 or subdivision
(a) of Section 25143 is in effect with respect to such qualification;
(13) between residents of foreign states, territories or
countries who are neither domiciled nor actually present in this state;
(14) to the State Controller pursuant to the Unclaimed Property
Law or to the administrator of the unclaimed property law of another state; or
(15) by the State Controller pursuant to the Unclaimed Property
Law or by the administrator of the unclaimed property law of another state if,
in either such case, such person (i) discloses to potential Optionees at the
sale that transfer of the securities is restricted under this rule, (ii)
delivers to each Optionee a copy of this rule, and (iii) advises the
Commissioner of the name of each Optionee;
(16) by a trustee to a successor trustee when such transfer does
not involve a change in the beneficial ownership of the securities;
Page 31 of 32
(17) by way of an offer and sale of outstanding securities in an
issuer transaction that is subject to the qualification requirement of Section
25110 of the Code but exempt from that qualification requirement by subdivision
(f) of Section 25102; provided that any such transfer is on the condition that
any certificate evidencing the security issued to such transferee shall contain
the legend required by this section.
(c) The certificates representing all such securities subject to such a
restriction on transfer, whether upon initial issuance or upon any transfer
thereof, shall bear on their face a legend, prominently stamped or printed
thereon in capital letters of not less than 10-point size, reading as follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
Page 32 of 32