Exhibit 10.1
ADVENT SOFTWARE,
INC.
2005 EMPLOYEE STOCK PURCHASE
PLAN
1. Purpose . The purpose of
the Plan is to provide employees of the Company and its Designated
Subsidiaries with an opportunity to purchase Common Stock of the
Company through accumulated payroll deductions. It is the intention
of the Company to have the Plan qualify generally as an
“Employee Stock Purchase Plan” under Section 423 of the
Internal Revenue Code of 1986, as amended; however, the Plan also
allows discretionary non-qualifying matching contributions in the
form of restricted stock or restricted stock units. The provisions
of the Plan, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of
Section 423 of the Code.
2. Definitions .
(a) “ Administrator
” shall mean the Board or any Committee designated by the
Board to administer the Plan pursuant to Section 16.
(b) “ Board ”
shall mean the Board of Directors of the Company.
(c) “ Code ”
shall mean the Internal Revenue Code of 1986, as
amended.
(d) “ Common Stock
” shall mean the Common Stock of the Company.
(e) “ Company ”
shall mean Advent Software, Inc., a Delaware corporation, and any
Designated Subsidiary of the Company.
(f) “ Compensation
” shall mean all base straight time gross earnings and
commissions, exclusive of payments for overtime, shift premium,
incentive compensation, incentive payments, bonuses and other
compensation.
(g) “ Designated
Subsidiary ” shall mean any Subsidiary that has been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(h) “ Employee ”
shall mean any individual who is an Employee of the Company for tax
purposes whose customary employment with the Company is at least
twenty (20) hours per week and more than five (5) months in any
calendar year. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by
the Company. Where the period of leave exceeds ninety (90) days and
the individual’s right to reemployment is not guaranteed
either by statute or by contract, the employment relationship shall
be deemed to have terminated on the 91st day of such
leave.
(i) “ Enrollment Date
” shall mean the first day of each Offering
Period.
(j) “ Exercise Date
” shall mean the last day of each Offering Period.
(k) “ Fair Market Value
” shall mean, as of any date, the value of Common 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 on the date of such
determination, as reported in The Wall Street Journal or such other
source as the Board deems reliable, or
(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 of
the closing bid and asked prices for the Common Stock on the date
of such determination, as reported in The Wall Street Journal or
such other source as the Board deems reliable, or
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(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 Board.
(l) “ Matching
Contributions ” shall mean awards of Restricted Stock
pursuant to Section 14 or awards of Restricted Stock Units pursuant
to Section 15.
(m) “ Offering Period
” shall mean a period of approximately six (6) months
commencing on an Enrollment Date and terminating on an Exercise
Date. Offering Periods shall commence on the first Trading Day
following termination of the prior Offering Period and shall
terminate on the last Trading Day of the sixth month following
commencement of such Offering Period. The duration of Offering
Periods may be changed pursuant to Section 4 of this
Plan.
(n) “ Period of
Restriction ” means the period during which shares of
Restricted Stock are subject to forfeiture and/or restrictions on
transferability.
(o) “ Plan ”
shall mean this Employee Stock Purchase Plan.
(p) “ Purchase Price
” shall mean an amount equal to 85% of the Fair Market Value
of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower; provided, however, that the
Administrator on a uniform and nondiscriminatory basis may
establish a higher Purchase Price from time to time with respect to
options that have not been granted under the Plan.
(q) “ Reserves ”
shall mean the number of shares of Common Stock covered by each
option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for
issuance under the Plan but not yet placed under option.
(r) “ Restricted Stock
” means shares of Common Stock granted pursuant to Section 14
of the Plan, as evidenced by Restricted Stock Agreement.
(s) “ Restricted Stock
Unit ” means a bookkeeping entry representing an amount
equal to the Fair Market Value of one share of Common Stock,
granted pursuant to Section 15. Each Restricted Stock Unit
represents an unfunded and unsecured obligation of the
Company.
(t) “ Subsidiary
” shall mean a corporation, domestic or foreign, of which not
less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a
Subsidiary.
(u) “ Trading Day
” shall mean a day on which national stock exchanges and the
Nasdaq System are open for trading.
3. Eligibility .
(a) Any Employee who shall be
employed by the Company on a given Enrollment Date shall be
eligible to participate in the Plan.
(b) Any provisions of the Plan to
the contrary notwithstanding, no Employee shall be granted an
option under the Plan (i) to the extent that, immediately after the
grant, such Employee (or any other person whose stock would be
attributed to such Employee pursuant to Section 424(d) of the Code)
would own capital stock of the Company and/or hold outstanding
options to purchase such stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of the
capital stock of the Company or of any Subsidiary, or (ii) to the
extent that his or her rights to purchase stock under all employee
stock purchase plans of the Company and its subsidiaries accrues at
a rate which exceeds twenty-five thousand dollars ($25,000) worth
of stock (determined at the Fair Market Value of the shares at the
time such option is granted) for each calendar year in which such
option is outstanding at any time.
4. Offering Periods . The
Plan shall be implemented by consecutive Offering Periods with a
new Offering Period commencing on June 1 and December 1 of each
year, or on such other date as the Administrator shall determine,
and continuing thereafter until terminated in accordance with
Section 22 hereof. The Board shall have
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the power to change the duration of Offering
Periods (including the commencement dates thereof) with respect to
future offerings without stockholder approval if such change is
announced at least five (5) days prior to the scheduled beginning
of the first Offering Period to be affected thereafter.
5. Participation .
(a) An Employee may become a
participant in the Plan by completing a subscription agreement
authorizing payroll deductions to this Plan and filing it with the
Company’s payroll office prior to the applicable Enrollment
Date.
(b) Payroll deductions for a
participant shall commence on the first payday following the
Enrollment Date and shall end on the last payday in the Offering
Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 10
hereof.
6. Payroll Deductions
.
(a) At the time a participant files
his or her subscription agreement, he or she shall elect to have
payroll deductions made on each pay day during the Offering Period
in an amount not exceeding ten percent (10%) of the Compensation
which he or she receives on each pay day during the Offering
Period.
(b) All payroll deductions made for
a participant shall be credited to his or her account under the
Plan and shall be withheld in whole percentages only. A participant
may not make any additional payments into such account.
(c) A participant may discontinue
his or her participation in the Plan as provided in Section 10
hereof, or may increase or decrease the rate of his or her payroll
deductions during the Offering Period by completing or filing with
the Company a new subscription agreement authorizing a change in
payroll deduction rate. The Administrator may, in its discretion,
limit the number of participation rate changes during any Offering
Period. The change in rate shall be effective with the first full
payroll period following five (5) business days after the
Company’s receipt of the new subscription agreement unless
the Company elects to process a given change in participation more
quickly. A participant’s subscription agreement shall remain
in effect for successive Offering Periods unless terminated as
provided in Section 10 hereof.
(d) Notwithstanding the foregoing,
to the extent necessary to comply with Section 423(b)(8) of the
Code and Section 3(b) hereof, a participant’s payroll
deductions may be decreased to zero percent (0%) at any time during
an Offering Period. Payroll deductions shall recommence at the rate
provided in such participant’s subscription agreement at the
beginning of the first Offering Period which is scheduled to end in
the following calendar year, unless terminated by the participant
as provided in Section 10 hereof.
7. Grant of Option . On the
Enrollment Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to
purchase on the Exercise Date of such Offering Period (at the
applicable Purchase Price) up to a number of shares of the
Company’s Common Stock determined by dividing such
Employee’s payroll deductions accumulated prior to such
Exercise Date and retained in the Participant’s account as of
the Exercise Date by the applicable Purchase Price. In no event
shall an Employee be permitted to purchase during each Offering
Period more than 1,000 shares (subject to any adjustment pursuant
to Section 21). All such purchases shall also be subject to the
limitations set forth in Sections 3(b) and 13 hereof. Exercise of
the option shall occur as provided in Section 8 hereof, unless the
participant has withdrawn pursuant to Section 10 hereof. The
Employee may accept the grant of such option by turning in a
completed and signed subscription agreement to the Company prior to
the first day of the Offering Period. The administrator may, for
future Offering Periods, increase or decrease, in its absolute
discretion, the maximum number of shares of the Company’s
Common Stock an Employee may purchase during an Offering Period.
The option shall expire on the last day of the Offering Period.
Notwithstanding anything to the contrary herein, the Administrator
may establish different enrollment deadlines for participation in
an Offering Period and/or different methods for making
decisions.
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8. Exercise of Option .
Unless a participant withdraws from the Plan as provided in Section
10 hereof, his or her option for the purchase of shares shall be
exercised automatically on the Exercise Date, and the maximum
number of full shares subject to option shall be purchased for such
participant at the applicable Purchase Price with the accumulated
payroll deductions in his or her account. No fractional shares
shall be purchased; any payroll deductions accumulated in a
participant’s account which are not sufficient to purchase a
full share shall be retained in the participant’s account for
the subsequent Offering Period, subject to earlier withdrawal by
the participant as provided in Section 10 hereof. Any other
accumulated payroll deductions left over in a participant’s
account after the Exercise Date (e.g., because a participant has
reached one of the limits on share purchases under the Plan) shall
be returned to the participant. During a participant’s
lifetime, a participant’s option to purchase shares hereunder
is exercisable only by him or her.
9. Delivery . As promptly as
practicable after each Exercise Date on which a purchase of shares
occurs, the Company shall arrange the delivery to each participant,
as appropriate, of a certificate representing the shares purchased
upon exercise of his or her option.
10. Withdrawal .
(a) A participant may withdraw all
but not less than all the payroll deductions credited to his or her
account and not yet used to exercise his or her option under the
Plan at any time by giving written notice to the Company in the
form prescribed by the Administrator. All of the
participant’s payroll deductions credited to his or her
account shall be paid to such participant promptly after receipt of
notice of withdrawal and such participant’s option for the
Offering Period shall be automatically terminated, and no further
payroll deductions for the purchase of shares shall be made for
such Offering Period. If a participant withdraws from an Offering
Period, payroll deductions shall not resume at the beginning of the
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