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EXHIBIT 4.09
SERVICESOFT, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
The purpose of the Servicesoft, Inc. 2000 Employee Stock Purchase Plan ("the
Plan") is to provide eligible employees of ServiceSoft, Inc. (the "Company") and
certain of its subsidiaries with opportunities to purchase shares of the
Company's common stock, $.01 par value (the "Common Stock"). Five Hundred
Thousand (500,000) shares of Common Stock in the aggregate have been approved
for this purpose. The Plan is intended to constitute an "employee stock purchase
plan" within the meaning of Section 423(b) of the Internal Revenue Code of 1986,
as amended (the "Code"), and shall be interpreted in accordance with that
intent.
1. ADMINISTRATION. The Plan will be administered by the Company's Board of
Directors (the "Board") or by a committee appointed by the Board for
such purpose (the "Committee"). The Board or the Committee has authority
to make rules and regulations for the administration of the Plan, and
its interpretations and decisions with regard thereto shall be final and
conclusive. No member of the Board or the Committee shall be liable for
any action or determination made in good faith with respect to the Plan
or any option granted hereunder.
2. OFFERINGS. The Company will make one or more offerings to eligible
employees to purchase Common Stock under the Plan ("Offerings"). The
initial Offering will begin April 1, 2000 and will end on September 30,
2000 (the "Initial Offering"). Thereafter, an Offering will begin on the
first business day occurring on or immediately after each October 1 and
April 1 and will end on the last business day occurring on or before the
following March 31 and September 30, respectively.
3. ELIGIBILITY. All employees of the Company (including employees who are
also directors of the Company) and all employees of each Designated
Subsidiary (as defined in Section 11) are eligible to participate in any
one or more of the Offerings under the Plan, provided that as of the
first day of the applicable Offering (the "Offering Date") they are
customarily employed by the Company or a Designated Subsidiary for more
than twenty (20) hours a week.
4. PARTICIPATION. An employee eligible on any Offering Date may participate
in such Offering by submitting an enrollment form to his appropriate
payroll location at least ten (10) business days before the Offering
Date (or by such other deadline as shall be established for the
Offering). The form will (a) state the percentage to be deducted from
his Compensation (as defined in Section 11) per pay period, (b)
authorize the purchase of Common Stock for him in each Offering in
accordance with the terms of the Plan and (c) specify the exact name or
names in which shares of Common Stock purchased for him are to be issued
pursuant to Section 10. An employee who does not enroll in accordance
with these procedures will be deemed to have waived his right to
participate. Unless an employee files a new enrollment form or withdraws
from the Plan, his deductions and purchases will continue at the same
percentage of Compensation for future Offerings, provided he remains
eligible. Notwithstanding the foregoing, participation in the Plan will
neither be permitted nor be denied contrary to the requirements of the
Code.
5. EMPLOYEE CONTRIBUTIONS. Each eligible employee may authorize payroll
deductions at a minimum of one percent (1%) up to a maximum of ten
percent (10%) of his Compensation for each pay period. The Company will
maintain book accounts showing the amount of payroll deductions made by
each participating employee for each Offering. No interest will accrue
or be paid on payroll deductions.
6. DEDUCTION CHANGES. An employee may not increase or decrease his payroll
deduction during any Offering, but may increase or decrease his payroll
deduction with respect to the next Offering (subject to the limitations
of Section 5) by filing a new enrollment form at least ten (10) business
days before the next Offering Date (or by such other deadline as shall
be established by the Board or Committee for the Offering).
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7. WITHDRAWAL. An employee may withdraw from participation in the Plan by
delivering a written notice of withdrawal to his appropriate payroll
location. The employee's withdrawal will be effective as of the next
business day. Following an employee's withdrawal, the Company will
promptly refund to him his entire account balance under the Plan (after
payment for any Common Stock purchased before the effective date of
withdrawal). Partial withdrawals are not permitted. The employee may not
begin participation again during the remainder of the Offering, but may
enroll in a subsequent Offering in accordance with Section 4.
8. GRANT OF OPTIONS. On each Offering Date, the Company will grant to each
eligible employee who is then a participant in the Plan an option
("Option") to purchase on the last day of such Offering (the "Exercise
Date"), at the Option Price hereinafter provided for, up to 500 whole
shares of Common Stock reserved for the purposes of the Plan. The
purchase price for each share purchased under such Option (the "Option
Price") will be 85% of the Fair Market Value of the Common Stock on the
Offering Date or the Exercise Date, whichever is less.
Notwithstanding the foregoing, no employee may be granted an Option
hereunder if such employee, immediately after the option was granted,
would be treated as owning stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of the
Company or any Parent or Subsidiary (as defined in Section 11). For
purposes of the preceding sentence, the attribution rules of Section
424(d) of the Code shall apply in determining the stock ownership of an
employee, and all stock which the employee has a contractual right to
purchase shall be treated as stock owned by the employee. In addition,
no employee may be granted an Option which permits his rights to
purchase stock under the Plan, and any other employee stock purchase
plan of the Company and its Parents and Subsidiaries, to accrue at a
rate which exceeds $25,000 of the fair market value of such stock
(determined on the option grant date or dates) for each calendar year in
which the Option is outstanding at any time. The purpose of the
limitation in the preceding sentence is to comply with Section 423(b)(8)
of the Code.
9. EXERCISE OF OPTION AND PURCHASE OF SHARES. Each employee who continues
to be a participant in the Plan on the Exercise Date shall be deemed to
have exercised his Option on such date and shall acquire from the
Company such number of whole shares of Common Stock reserved for the
purpose of the Plan as his accumulated payroll deductions on such date
will purchase at the Option Price, subject to any other limitations
contained in the Plan. Any balance remaining in an employee's account at
the end of an Offering will be refunded to the employee promptly;
provided that any balance remaining in an employee's account at the end
of an Offering solely by reason of the inability to purchase a
fractional share will be carried forward to the next Offering.
10. ISSUANCE OF CERTIFICATES. Certificates representing shares of Common
Stock purchased under the Plan may be issued only in the name of the
employee, in the name of the employee and another person of legal age as
joint tenants with rights of survivorship, or in the name of a broker
authorized by the employee to be his, or their, nominee for such
purpose.
11. DEFINITIONS. The term "Compensation" means the amount of total cash
compensation, prior to salary reduction pursuant to either Section 125
or 401(k) of the Code, including base pay, commissions, overtime, and
incentive and bonus awards, but excluding allowances and reimbursements
for expenses such as relocation allowances or travel expenses, income or
gains on the exercise of Company stock options, and similar items.
The term "Designated Subsidiary" means any present or future Subsidiary
(as defined below) that is designated from time to time by the Board or
the Committee to participate in the Plan. Subsidiaries may be so
designated either before or after the Plan is approved by the
stockholders.
The term "Fair Market Value of Common Stock" on any given date shall
mean (i) if the Common Stock is admitted to on a national securities
exchange or the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") National Market System, the closing price
reported for Common Stock on NASDAQ on such date, or if no sales were
reported for such date, the last date preceding such date for which a
sale was reported, or (ii) if the Stock is not publicly traded on a
securities exchange or traded in the over-the-counter market or, if
traded or quoted, there are no transactions or quotations within the
last ten
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trading days or trading has been halted for extraordinary reasons, the
Fair Market Value on any given date shall be determined in good faith by
the Committee.
The term "Parent" means a "parent corporation" with respect to the
Company, as defined in Section 424(e) of the Code.
The term "Subsidiary" means a "subsidiary corporation" with respect to
the Company, as defined in Section 424(f) of the Code.
12. RIGHTS ON RETIREMENT, DEATH, OR OTHER TERMINATION OF EMPLOYMENT. If a
participating employee's employment terminates for any reason before the
Exercise Date for any Offering, no payroll deduction will be taken from
any pay due and owing to the employee and the balance in his account
will be paid to him or, in the case of his death, to his designated
beneficiary as if he had withdrawn from the Plan under Section 7. An
employee will be deemed to have terminated employment, for this purpose,
if the corporation that employs him, having been a Designated
Subsidiary, ceases to be a Subsidiary, or if the employee is transferred
to any corporation other than the Company or a Designated Subsidiary.
13. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an Option to an
employee nor the deductions from his pay shall constitute such employee
a stockholder of the shares of Common Stock covered by an Option under
the Plan until such shares have been purchased by and issued to him.
14. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not transferable by a
participating employee other than by will or the laws of descent and
distribution, and are exercisable during the employee's lifetime only by
the employee.
15. APPLICATION OF FUNDS. All funds received or held by the Company under
the Plan may be combined with other corporate funds and may be used for
any corporate purpose.
16. ADJUSTMENT IN CASE OF CHANGES AFFECTING COMMON STOCK. If, through or as
a result of any merger, consolidation, sale of all or substantially all
of the assets of the Company, reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or
other similar transaction in the capital structure of the Company
without consideration, the outstanding shares of Common Stock are
increased or decreased or are exchanged for a different number or kind
of shares or other securities of the Company or any successor company,
or additional shares or new or different shares or other securities of
the Company or other non-cash assets are distributed with respect to
such shares of Stock or other securities, the Board (or, if appointed,
the Committee) shall make an appropriate or proportionate adjustment in
(i) the maximum number of shares reserved for issuance under the Plan,
(ii) the share limitation in Section 8, and (iii) such other provision
as may be deemed equitable by the Board or, if applicable, the
Committee. Any adjustment or determination pursuant to this Section
shall be final, binding and conclusive.
17. AMENDMENT OF THE PLAN. The Board or the Committee may at any time, and
from time to time, amend the Plan in any respect, except that without
the approval, within twelve (12) months of such Board or Committee
action, by the holders of a majority of the shares of stock of the
Company present or represented and entitled to vote at a meeting of
stockholders, no amendment shall be made (a) increasing the number of
shares approved for the Plan, (b) changing the corporations or class of
corporations whose employees will be allowed to participate in the Plan,
or (c) in any other manner that the Board or Committee may, in its
discretion, determine should become effective only if approved by
Stockholders even though Stockholder approval is not expressly required
by this Plan.
18. INSUFFICIENT SHARES. If the total number of shares of Common Stock that
would otherwise be purchased on any Exercise Date plus the number of
shares purchased under previous Offerings under the Plan exceeds the
maximum number of shares issuable under the Plan, the shares then
available shall be apportioned among participants in proportion to the
amount of payroll deductions accumulated on behalf of each participant
that would otherwise be used to purchase Common Stock on such Exercise
Date.
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19. TERMINATION OF THE PLAN. The Plan may be terminated at any time by the
Board or the Committee. Upon termination of the Plan, all amounts in the
accounts of participating employees shall be promptly refunded.
20. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and deliver
Common Stock under the Plan is subject to listing on NASDAQ and
obtaining all governmental approvals required in connection with the
authorization, issuance, or sale of such stock.
The Plan shall be governed by Delaware law except to the extent that
such law is preempted by federal law.
21. ISSUANCE OF SHARES. Shares may be issued upon exercise of an Option from
authorized but unissued Common Stock, from shares held in the treasury
of the Company, or from any other proper source.
22. TAX WITHHOLDING. Participation in the Plan is subject to any required
tax withholding on income of the participant in connection with the
Plan. Each employee agrees, by entering the Plan, that the Company and
its Subsidiaries shall have the right to deduct any such taxes from any
payment of any kind otherwise due to the employee, including shares
issuable under the Plan.
23. NOTIFICATION UPON SALE OF SHARES. Each employee agrees, by entering the
Plan, to give the Company prompt notice of any disposition of shares
purchased under the Plan where such disposition occurs within two years
after the date of grant of the Option pursuant to which such shares are
purchased or one year after the Exercise Date.
24. EFFECTIVE DATE AND APPROVAL OF SHAREHOLDERS. The Plan shall take effect
on April 1, 2000, subject to approval by the holders of a majority of
the shares of stock of the Company present or represented and entitled
to vote at a meeting of stockholders, which approval must occur within
twelve (12) months of the adoption of the Plan by the Board.
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ADDENDUM: DESIGNATED SUBSIDIARIES
The following subsidiary is a "Designated Subsidiary" (as defined in
Section 11 of the Plan), eligible to participate in the Plan:
1. Servicesoft Technologies (Canada), Inc.
2. Servicesoft Technologies (UK) Ltd.
3. ServiceSoft Europe N.V. (Belgium)
