{"id":38301,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1998-employee-stock-purchase-plan-intraware-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1998-employee-stock-purchase-plan-intraware-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1998-employee-stock-purchase-plan-intraware-inc.html","title":{"rendered":"1998 Employee Stock Purchase Plan &#8211; Intraware Inc."},"content":{"rendered":"<pre>                                   INTRAWARE, INC.\n\n                          1998 EMPLOYEE STOCK PURCHASE PLAN\n\n\n     The following constitute the provisions of the 1998 Employee Stock Purchase\nPlan of Intraware, Inc.\n\n     1.   PURPOSE.  The purpose of the Plan is to provide employees of the\nCompany and its Designated Subsidiaries with an opportunity to purchase Common\nStock of the Company through accumulated payroll deductions.  It is the\nintention of the Company to have the Plan qualify as an 'Employee Stock Purchase\nPlan' under Section 423 of the Internal Revenue Code of 1986, as amended.  The\nprovisions of the Plan, accordingly, shall be construed so as to extend and\nlimit participation in a manner consistent with the requirements of that section\nof the Code.\n\n     2.   DEFINITIONS.\n\n          (a)  'BOARD' shall mean the Board of Directors of the Company.\n\n          (b)  'CODE' shall mean the Internal Revenue Code of 1986, as amended.\n\n          (c)  'COMMON STOCK' shall mean the common stock of the Company.\n\n          (d)  'COMPANY' shall mean Intraware, Inc. and any Designated\nSubsidiary of the Company.\n\n          (e)  'COMPENSATION' shall mean all base straight time gross earnings\nand commissions, but exclusive of payments for overtime, shift premium,\nincentive compensation, incentive payments, bonuses and other compensation.\n\n          (f)  'DESIGNATED SUBSIDIARY' shall mean any Subsidiary which has been\ndesignated by the Board from time to time in its sole discretion as eligible to\nparticipate in the Plan.\n\n          (g)  'EMPLOYEE' shall mean any individual who is an Employee of the\nCompany for tax purposes whose customary employment with the Company is at least\ntwenty (20) hours per week and more than five (5) months in any calendar year. \nFor purposes of the Plan, the employment relationship shall be treated as\ncontinuing intact while the individual is on sick leave or other leave of\nabsence approved by the Company.  Where the period of leave exceeds 90 days and\nthe individual's right to reemployment is not guaranteed either by statute or by\ncontract, the employment relationship shall be deemed to have terminated on the\n91st day of such leave. \n\n          (h)  'ENROLLMENT DATE' shall mean the first Trading Day of each\nOffering Period.\n\n          (i)  'EXERCISE DATE' shall mean the last Trading Day of each Purchase\nPeriod.\n\n                                         -21-\n\n\n          (j)       'FAIR MARKET VALUE' shall mean, as of any date, the value of\nCommon Stock determined as follows:\n\n               (1)  If the Common Stock is listed on any established stock\nexchange or a national market system, including without limitation the Nasdaq\nNational Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its\nFair Market Value shall be the closing sales price for such stock (or the\nclosing bid, if no sales were reported) as quoted on such exchange or system for\nthe last market trading day on the date of such determination, as reported in\nTHE WALL STREET JOURNAL or such other source as the Board deems reliable;\n\n               (2)  If the Common Stock is regularly quoted by a recognized\nsecurities dealer but selling prices are not reported, its Fair Market Value\nshall be the mean of the closing bid and asked prices for the Common Stock on\nthe date of such determination, as reported in THE WALL STREET JOURNAL or such\nother source as the Board deems reliable;\n\n               (3)  In the absence of an established market for the Common\nStock, the Fair Market Value thereof shall be determined in good faith by the\nBoard; or\n\n               (4)  For purposes of the Enrollment Date of the first Offering\nPeriod under the Plan, the Fair Market Value shall be the initial price to the\npublic as set forth in the final prospectus included within the registration\nstatement in Form S-1 filed with the Securities and Exchange Commission for the\ninitial public offering of the Company's Common Stock (the 'Registration\nStatement').\n     \n          (k)  'OFFERING PERIODS' shall mean the periods of approximately\ntwenty-four (24) months during which an option granted pursuant to the Plan may\nbe exercised, commencing on the first Trading Day on or after April 15 and\nOctober 15 of each year and terminating on the last Trading Day in the periods\nending twenty-four months later; provided, however, that the first Offering\nPeriod under the Plan shall commence with the first Trading Day on or after the\ndate on which the Securities and Exchange Commission declares the Company's\nRegistration Statement effective and ending on the last Trading Day on or before\nOctober 15, 2000.  The duration and timing of Offering Periods may be changed\npursuant to Section 4 of this Plan.\n\n          (l)  'PLAN' shall mean this 1998 Employee Stock Purchase Plan.\n\n          (m)  'PURCHASE PERIOD' shall mean the approximately six month period\ncommencing after one Exercise Date and ending with the next Exercise Date,\nexcept that the first Purchase Period of any Offering Period shall commence on\nthe Enrollment Date and end with the next Exercise Date.\n\n                                         -2-\n\n\n          (n)  'PURCHASE PRICE' shall mean 85% of the Fair Market Value of a\nshare of Common Stock on the Enrollment Date or on the Exercise Date, whichever\nis lower; provided however, that the Purchase Price may be adjusted by the Board\npursuant to Section 20.\n\n          (o)  'RESERVES' shall mean the number of shares of Common Stock\ncovered by each option under the Plan which have not yet been exercised and the\nnumber of shares of Common Stock which have been authorized for issuance under\nthe Plan but not yet placed under option.\n\n          (p)  'SUBSIDIARY' shall mean a corporation, domestic or foreign, of\nwhich not less than 50% of the voting shares are held by the Company or a\nSubsidiary, whether or not such corporation now exists or is hereafter organized\nor acquired by the Company or a Subsidiary.\n\n          (q)  'TRADING DAY' shall mean a day on which national stock\nexchanges and the Nasdaq System are open for trading.\n\n     3.   ELIGIBILITY.\n\n          (a)  Any Employee who shall be employed by the Company on a given\nEnrollment Date shall be eligible to participate in the Plan.\n\n          (b)  Any provisions of the Plan to the contrary notwithstanding, no\nEmployee shall be granted an option under the Plan (i) to the extent that,\nimmediately after the grant, such Employee (or any other person whose stock\nwould be attributed to such Employee pursuant to Section 424(d) of the Code)\nwould own capital stock of the Company and\/or hold outstanding options to\npurchase such stock possessing five percent (5%) or more of the total combined\nvoting power or value of all classes of the capital stock of the Company or of\nany Subsidiary, or (ii) to the extent that his or her rights to purchase stock\nunder all employee stock purchase plans of the Company and its subsidiaries\naccrues at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of\nstock (determined at the fair market value of the shares at the time such option\nis granted) for each calendar year in which such option is outstanding at any\ntime.\n\n     4.   OFFERING PERIODS.  The Plan shall be implemented by consecutive,\noverlapping Offering Periods with a new Offering Period commencing on the first\nTrading Day on or after April 15 and October 15 each year, or on such other date\nas the Board shall determine, and continuing thereafter until terminated in\naccordance with Section 20 hereof; provided, however, that the first Offering\nPeriod under the Plan shall commence with the first Trading Day on or after the\ndate on which the Securities and Exchange Commission declares the Company's\nRegistration Statement effective and ending on the last Trading Day on or before\nOctober 15, 2000.   The Board shall have the power to change the duration of\nOffering Periods (including the commencement dates thereof) with respect to\nfuture offerings without shareholder approval if such change is announced at\nleast five (5) days prior to the scheduled beginning of the first Offering\nPeriod to be affected thereafter.\n\n                                         -3-\n\n\n     5.   PARTICIPATION.\n\n          (a)  An eligible Employee may become a participant in the Plan by\ncompleting a subscription agreement authorizing payroll deductions in the form\nof Exhibit A to this Plan and filing it with the Company's payroll office prior\nto the applicable Enrollment Date.\n\n          (b)  Payroll deductions for a participant shall commence on the first\npayroll following the Enrollment Date and shall end on the last payroll in the\nOffering Period to which such authorization is applicable, unless sooner\nterminated by the participant as provided in Section 10 hereof. \n\n     6.   PAYROLL DEDUCTIONS.\n\n          (a)  At the time a participant files his or her subscription\nagreement, he or she shall elect to have payroll deductions made on each pay day\nduring the Offering Period in an amount not exceeding fifteen percent (15%) of\nthe Compensation which he or she receives on each pay day during the Offering\nPeriod. \n\n          (b)  All payroll deductions made for a participant shall be credited\nto his or her account under the Plan and shall be withheld in whole percentages\nonly.  A participant may not make any additional payments into such account.\n\n          (c)  A participant may discontinue his or her participation in the\nPlan as provided in Section 10 hereof, or may increase or decrease the rate of\nhis or her payroll deductions during the Offering Period by completing or filing\nwith the Company a new subscription agreement authorizing a change in payroll\ndeduction rate.  The Board may, in its discretion, limit the number of\nparticipation rate changes during any Offering Period.  The change in rate shall\nbe effective with the first full payroll period following five (5) business days\nafter the Company's receipt of the new subscription agreement unless the Company\nelects to process a given change in participation more quickly.  A participant's\nsubscription agreement shall remain in effect for successive Offering Periods\nunless terminated as provided in Section 10 hereof.\n\n          (d)  Notwithstanding the foregoing, to the extent necessary to comply\nwith Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's\npayroll deductions may be decreased to zero percent (0%) at any time during a\nPurchase Period.  Payroll deductions shall recommence at the rate provided in\nsuch participant's subscription agreement at the beginning of the first Purchase\nPeriod which is scheduled to end in the following calendar year, unless\nterminated by the participant as provided in Section 10 hereof.\n\n          (e)  At the time the option is exercised, in whole or in part, or at\nthe time some or all of the Company's Common Stock issued under the Plan is\ndisposed of, the participant must make adequate provision for the Company's\nfederal, state, or other tax withholding obligations, if any, \n\n                                         -4-\n\n\nwhich arise upon the exercise of the option or the disposition of the Common\nStock.  At any time, the Company may, but shall not be obligated to, withhold\nfrom the participant's compensation the amount necessary for the Company to meet\napplicable withholding obligations, including any withholding required to make\navailable to the Company any tax deductions or benefits attributable to sale or\nearly disposition of Common Stock by the Employee. \n\n     7.   GRANT OF OPTION.  On the Enrollment Date of each Offering Period, each\neligible Employee participating in such Offering Period shall be granted an\noption to purchase on each Exercise Date during such Offering Period (at the\napplicable Purchase Price) up to a number of shares of the Company's Common\nStock determined by dividing such Employee's payroll deductions accumulated\nprior to such Exercise Date and retained in the Participant's account as of the\nExercise Date by the applicable Purchase Price; provided that in no event shall\nan Employee be permitted to purchase during each Purchase Period more than 5,000\nshares of the Company's Common Stock (subject to any adjustment pursuant to\nSection 19), and provided further that such purchase shall be subject to the\nlimitations set forth in Sections 3(b) and 12 hereof.  The Board may, for future\nOffering Periods, increase or decrease, in its absolute discretion, the maximum\nnumber of shares of the Company's Common Stock an Employee may purchase during\neach Purchase Period of such Offering Period.  Exercise of the option shall\noccur as provided in Section 8 hereof, unless the participant has withdrawn\npursuant to Section 10 hereof.  The option shall expire on the last day of the\nOffering Period. \n\n     8.   EXERCISE OF OPTION.  \n\n          (a)  Unless a participant withdraws from the Plan as provided in\nSection 10 hereof, his or her option for the purchase of shares shall be\nexercised automatically on the Exercise Date, and the maximum number of full\nshares subject to option shall be purchased for such participant at the\napplicable Purchase Price with the accumulated payroll deductions in his or her\naccount.  No fractional shares shall be purchased; any payroll deductions\naccumulated in a participant's account which are not sufficient to purchase a\nfull share shall be retained in the participant's account for the subsequent\nPurchase Period or Offering Period, subject to earlier withdrawal by the\nparticipant as provided in Section 10 hereof.  Any other monies left over in a\nparticipant's account after the Exercise Date shall be returned to the\nparticipant.  During a participant's lifetime, a participant's option to\npurchase shares hereunder is exercisable only by him or her.\n\n          (b)  If the Board determines that, on a given Exercise Date, the\nnumber of shares with respect to which options are to be exercised may exceed\n(i) the number of shares of Common Stock that were available for sale under the\nPlan on the Enrollment Date of the applicable Offering Period, or (ii) the\nnumber of shares available for sale under the Plan on such Exercise Date, the\nBoard may in its sole discretion (x) provide that the Company shall make a pro\nrata allocation of the shares of Common Stock available for purchase on such\nEnrollment Date or Exercise Date, as applicable, in as uniform a manner as shall\nbe practicable and as it shall determine in its sole discretion to be equitable\namong all participants exercising options to purchase Common Stock on \n\n                                         -5-\n\n\nsuch Exercise Date, and continue all Offering Periods then in effect, or (y)\nprovide that the Company shall make a pro rata allocation of the shares\navailable for purchase on such Enrollment Date or Exercise Date, as applicable,\nin as uniform a manner as shall be practicable and as it shall determine in its\nsole discretion to be equitable among all participants exercising options to\npurchase Common Stock on such Exercise Date, and terminate any or all Offering\nPeriods then in effect pursuant to Section 20 hereof.  The Company may make pro\nrata allocation of the shares available on the Enrollment Date of any applicable\nOffering Period pursuant to the preceding sentence, notwithstanding any\nauthorization of additional shares for issuance under the Plan by the Company's\nshareholders subsequent to such Enrollment Date.\n\n     9.   DELIVERY.  As promptly as practicable after each Exercise Date on\nwhich a purchase of shares occurs, the Company shall arrange the delivery to\neach participant, as appropriate, of a certificate representing the shares\npurchased upon exercise of his or her option.\n\n     10.  WITHDRAWAL.\n\n          (a)  A participant may withdraw all but not less than all the payroll\ndeductions credited to his or her account and not yet used to exercise his or\nher option under the Plan at any time by giving written notice to the Company in\nthe form of Exhibit B to this Plan.  All of the participant's payroll deductions\ncredited to his or her account shall be paid to such participant promptly after\nreceipt of notice of withdrawal and such participant's option for the Offering\nPeriod shall be automatically terminated, and no further payroll deductions for\nthe purchase of shares shall be made for such Offering Period.  If a participant\nwithdraws from an Offering Period, payroll deductions shall not resume at the\nbeginning of the succeeding Offering Period unless the participant delivers to\nthe Company a new subscription agreement.\n\n          (b)  A participant's withdrawal from an Offering Period shall not have\nany effect upon his or her eligibility to participate in any similar plan which\nmay hereafter be adopted by the Company or in succeeding Offering Periods which\ncommence after the termination of the Offering Period from which the participant\nwithdraws.\n\n     11.  TERMINATION OF EMPLOYMENT.  \n\n          Upon a participant's ceasing to be an Employee, for any reason, he or\nshe shall be deemed to have elected to withdraw from the Plan and the payroll\ndeductions credited to such participant's account during the Offering Period but\nnot yet used to exercise the option shall be returned to such participant or, in\nthe case of his or her death, to the person or persons entitled thereto under\nSection 15 hereof, and such participant's option shall be automatically\nterminated.  The preceding sentence notwithstanding, a participant who receives\npayment in lieu of notice of termination of employment shall be treated as\ncontinuing to be an Employee for the participant's customary number of hours per\nweek of employment during the period in which the participant is subject to such\npayment in lieu of notice.\n\n\n                                         -6-\n\n\n     12.  INTEREST.  No interest shall accrue on the payroll deductions of a\nparticipant in the Plan.\n\n     13.  STOCK.\n\n          (a)  Subject to adjustment upon changes in capitalization of the\nCompany as provided in Section 19 hereof, the maximum number of shares of the\nCompany's Common Stock which shall be made available for sale under the Plan\nshall be 600,000 shares, plus an annual increase to be added on the first day of\nthe Company's fiscal year beginning in 2000 equal to the lesser of (i) 400,000\nshares, (ii) 1% of the outstanding shares on such date or (iii) a lesser amount\ndetermined by the Board. \n\n          (b)  The participant shall have no interest or voting right in shares\ncovered by his option until such option has been exercised.\n\n          (c)  Shares to be delivered to a participant under the Plan shall be\nregistered in the name of the participant or in the name of the participant and\nhis or her spouse.\n\n     14.  ADMINISTRATION.  The Plan shall be administered by the Board or a\ncommittee of members of the Board appointed by the Board.  The Board or its\ncommittee shall have full and exclusive discretionary authority to construe,\ninterpret and apply the terms of the Plan, to determine eligibility and to\nadjudicate all disputed claims filed under the Plan.  Every finding, decision\nand determination made by the Board or its committee shall, to the full extent\npermitted by law, be final and binding upon all parties.\n\n     15.  DESIGNATION OF BENEFICIARY.\n\n          (a)  A participant may file a written designation of a beneficiary who\nis to receive any shares and cash, if any, from the participant's account under\nthe Plan in the event of such participant's death subsequent to an Exercise Date\non which the option is exercised but prior to delivery to such participant of\nsuch shares and cash.  In addition, a participant may file a written designation\nof a beneficiary who is to receive any cash from the participant's account under\nthe Plan in the event of such participant's death prior to exercise of the\noption.  If a participant is married and the designated beneficiary is not the\nspouse, spousal consent shall be required for such designation to be effective.\n\n          (b)  Such designation of beneficiary may be changed by the participant\nat any time by written notice.  In the event of the death of a participant and\nin the absence of a beneficiary validly designated under the Plan who is living\nat the time of such participant's death, the Company shall deliver such shares\nand\/or cash to the executor or administrator of the estate of the participant,\nor if no such executor or administrator has been appointed (to the knowledge of\nthe Company), the Company, in its discretion, may deliver such shares and\/or\ncash to the spouse or to any one or more \n\n                                         -7-\n\n\ndependents or relatives of the participant, or if no spouse, dependent or\nrelative is known to the Company, then to such other person as the Company may\ndesignate.\n\n     16.  TRANSFERABILITY.  Neither payroll deductions credited to a\nparticipant's account nor any rights with regard to the exercise of an option or\nto receive shares under the Plan may be assigned, transferred, pledged or\notherwise disposed of in any way (other than by will, the laws of descent and\ndistribution or as provided in Section 15 hereof) by the participant.  Any such\nattempt at assignment, transfer, pledge or other disposition shall be without\neffect, except that the Company may treat such act as an election to withdraw\nfunds from an Offering Period in accordance with Section 10 hereof.\n\n     17.  USE OF FUNDS.  All payroll deductions received or held by the Company\nunder the Plan may be used by the Company for any corporate purpose, and the\nCompany shall not be obligated to segregate such payroll deductions.\n\n     18.  REPORTS.  Individual accounts shall be maintained for each participant\nin the Plan.  Statements of account shall be given to participating Employees at\nleast annually, which statements shall set forth the amounts of payroll\ndeductions, the Purchase Price, the number of shares purchased and the remaining\ncash balance, if any.\n\n     19.  ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, LIQUIDATION,\n          MERGER OR ASSET SALE.\n\n          (a)  CHANGES IN CAPITALIZATION.  Subject to any required action by the\nshareholders of the Company, the Reserves, the maximum number of shares each\nparticipant may purchase each Purchase Period (pursuant to Section 7), as well\nas the price per share and the number of shares of Common Stock covered by each\noption under the Plan which has not yet been exercised shall be proportionately\nadjusted for any increase or decrease in the number of issued shares of Common\nStock resulting from a stock split, reverse stock split, stock dividend,\ncombination or reclassification of the Common Stock, or any other increase or\ndecrease in the number of shares of Common Stock effected without receipt of\nconsideration by the Company; provided, however, that conversion of any\nconvertible securities of the Company shall not be deemed to have been 'effected\nwithout receipt of consideration'.  Such adjustment shall be made by the Board,\nwhose determination in that respect shall be final, binding and conclusive. \nExcept as expressly provided herein, no issuance by the Company of shares of\nstock of any class, or securities convertible into shares of stock of any class,\nshall affect, and no adjustment by reason thereof shall be made with respect to,\nthe number or price of shares of Common Stock subject to an option.\n\n          (b)  DISSOLUTION OR LIQUIDATION.  In the event of the proposed \ndissolution or liquidation of the Company, the Offering Period then in \nprogress shall be shortened by setting a new Exercise Date (the 'New Exercise \nDate'), and shall terminate immediately prior to the consummation of such \nproposed dissolution or liquidation, unless provided otherwise by the Board.  \n The New Exercise Date shall be before the date of the Company's proposed \ndissolution or \n\n                                         -8-\n\n\nliquidation. The Board shall notify each participant in writing, at least ten \n(10) business days prior to the New Exercise Date, that the Exercise Date for \nthe participant's option has been changed to the New Exercise Date and that \nthe participant's option shall be exercised automatically on the New Exercise \nDate, unless prior to such date the participant has withdrawn from the \nOffering Period as provided in Section 10 hereof.  \n\n          (c)  MERGER OR ASSET SALE.  In the event of a proposed sale of all or\nsubstantially all of the assets of the Company, or the merger of the Company\nwith or into another corporation, each outstanding option shall be assumed or an\nequivalent option substituted by the successor corporation or a Parent or\nSubsidiary of the successor corporation.  In the event that the successor\ncorporation refuses to assume or substitute for the option, any Purchase Periods\nthen in progress shall be shortened by setting a new Exercise Date (the 'New\nExercise Date') and any Offering Periods then in progress shall end on the New\nExercise Date.  The New Exercise Date shall be before the date of the Company's\nproposed sale or merger.  The Board shall notify each participant in writing, at\nleast ten (10) business days prior to the New Exercise Date, that the Exercise\nDate for the participant's option has been changed to the New Exercise Date and\nthat the participant's option shall be exercised automatically on the New\nExercise Date, unless prior to such date the participant has withdrawn from the\nOffering Period as provided in Section 10 hereof.\n\n     20.  AMENDMENT OR TERMINATION.\n\n          (a)  The Board of Directors of the Company may at any time and for any\nreason terminate or amend the Plan.  Except as provided in Section 19 hereof, no\nsuch termination can affect options previously granted, provided that an\nOffering Period may be terminated by the Board of Directors on any Exercise Date\nif the Board determines that the termination of the Offering Period or the Plan\nis in the best interests of the Company and its shareholders.  Except as\nprovided in Section 19 and this Section 20 hereof, no amendment may make any\nchange in any option theretofore granted which adversely affects the rights of\nany participant.  To the extent necessary to comply with Section 423 of the Code\n(or any successor rule or provision or any other applicable law, regulation or\nstock exchange rule), the Company shall obtain shareholder approval in such a\nmanner and to such a degree as required.\n\n          (b)  Without shareholder consent and without regard to whether any\nparticipant rights may be considered to have been 'adversely affected,' the\nBoard (or its committee) shall be entitled to change the Offering Periods, limit\nthe frequency and\/or number of changes in the amount withheld during an Offering\nPeriod, establish the exchange ratio applicable to amounts withheld in a\ncurrency other than U.S. dollars, permit payroll withholding in excess of the\namount designated by a participant in order to adjust for delays or mistakes in\nthe Company's processing of properly completed withholding elections, establish\nreasonable waiting and adjustment periods and\/or accounting and crediting\nprocedures to ensure that amounts applied toward the purchase of Common Stock\nfor each participant properly correspond with amounts withheld from the\nparticipant's \n\n                                         -9-\n\n\nCompensation, and establish such other limitations or procedures as the Board\n(or its committee) determines in its sole discretion advisable which are\nconsistent with the Plan.\n\n          (c)  In the event the Board determines that the ongoing operation of\nthe Plan may result in unfavorable financial accounting consequences, the Board\nmay, in its discretion and, to the extent necessary or desirable, modify or\namend the Plan to reduce or eliminate such accounting consequence including, but\nnot limited to:\n\n               (1)  altering the Purchase Price for any Offering Period\nincluding an Offering Period underway at the time of the change in Purchase\nPrice;\n\n               (2)  shortening any Offering Period so that Offering Period ends\non a new Exercise Date, including an Offering Period underway at the time of the\nBoard action; and\n\n               (3)  allocating shares.\n\n               Such modifications or amendments shall not require stockholder\napproval or the consent of any Plan participants.\n\n     21.  NOTICES.  All notices or other communications by a participant to the\nCompany under or in connection with the Plan shall be deemed to have been duly\ngiven when received in the form specified by the Company at the location, or by\nthe person, designated by the Company for the receipt thereof.\n\n     22.  CONDITIONS UPON ISSUANCE OF SHARES.  Shares shall not be issued with\nrespect to an option unless the exercise of such option and the issuance and\ndelivery of such shares pursuant thereto shall comply with all applicable\nprovisions of law, domestic or foreign, including, without limitation, the\nSecurities Act of 1933, as amended, the Securities Exchange Act of 1934, as\namended, the rules and regulations promulgated thereunder, and the requirements\nof any stock exchange upon which the shares may then be listed, and shall be\nfurther subject to the approval of counsel for the Company with respect to such\ncompliance.\n\n          As a condition to the exercise of an option, the Company may require\nthe person exercising such option to represent and warrant at the time of any\nsuch exercise that the shares are being purchased only for investment and\nwithout any present intention to sell or distribute such shares if, in the\nopinion of counsel for the Company, such a representation is required by any of\nthe aforementioned applicable provisions of law.\n\n     23.  TERM OF PLAN.  The Plan shall become effective upon the earlier to\noccur of its adoption by the Board of Directors or its approval by the\nshareholders of the Company.  It shall continue in effect for a term of ten (10)\nyears unless sooner terminated under Section 20 hereof.\n\n                                         -10-\n\n\n     24.  AUTOMATIC TRANSFER TO LOW PRICE OFFERING PERIOD.  To the extent\npermitted by any applicable laws, regulations, or stock exchange rules if the\nFair Market Value of the Common Stock on any Exercise Date in an Offering Period\nis lower than the Fair Market Value of the Common Stock on the Enrollment Date\nof such Offering Period, then all participants in such Offering Period shall be\nautomatically withdrawn from such Offering Period immediately after the exercise\nof their option on such Exercise Date and automatically re-enrolled in the\nimmediately following Offering Period as of the first day thereof.\n\n                                         -11-\n\n\n\n                                      EXHIBIT A\n\n\n                                   INTRAWARE, INC.\n\n                          1998 EMPLOYEE STOCK PURCHASE PLAN\n\n                                SUBSCRIPTION AGREEMENT\n\n\n\n_____ Original Application                        Enrollment Date: ___________\n_____ Change in Payroll Deduction Rate            \n_____ Change of Beneficiary(ies)\n\n\n1.   ______________________ hereby elects to participate in the Intraware, Inc.\n     1998 Employee Stock Purchase Plan (the 'Employee Stock Purchase Plan') and\n     subscribes to purchase shares of the Company's Common Stock in accordance\n     with this Subscription Agreement and the Employee Stock Purchase Plan.\n\n2.   I hereby authorize payroll deductions from each paycheck in the amount of\n     ____% of my Compensation on each payday (from 1 to 15%) during the Offering\n     Period in accordance with the Employee Stock Purchase Plan.  (Please note\n     that no fractional percentages are permitted.)\n\n3.   I understand that said payroll deductions shall be accumulated for the\n     purchase of shares of Common Stock at the applicable Purchase Price\n     determined in accordance with the Employee Stock Purchase Plan.  I\n     understand that if I do not withdraw from an Offering Period, any\n     accumulated payroll deductions will be used to automatically exercise my\n     option.\n\n4.   I have received a copy of the complete Employee Stock Purchase Plan.  I\n     understand that my participation in the Employee Stock Purchase Plan is in\n     all respects subject to the terms of the Plan.  I understand that my\n     ability to exercise the option under this Subscription Agreement is subject\n     to shareholder approval of the Employee Stock Purchase Plan.\n\n5.   Shares purchased for me under the Employee Stock Purchase Plan should be\n     issued in the name(s) of (Employee or Employee and Spouse only):__________ \n     ______________________________________.\n\n6.   I understand that if I dispose of any shares received by me pursuant to the\n     Plan within 2 years after the Enrollment Date (the first day of the\n     Offering Period during which I purchased such shares) or one year after the\n     Exercise Date, I will be treated for federal income tax purposes as having\n     received ordinary income at the time of such disposition in an amount equal\n     to the \n\n\n\n     excess of the fair market value of the shares at the time such shares were\n     purchased by me over the price which I paid for the shares.  I HEREBY AGREE\n     TO NOTIFY THE COMPANY IN WRITING WITHIN 30 DAYS AFTER THE DATE OF ANY\n     DISPOSITION OF MY SHARES AND I WILL MAKE ADEQUATE PROVISION FOR FEDERAL,\n     STATE OR OTHER TAX WITHHOLDING OBLIGATIONS, IF ANY, WHICH ARISE UPON THE\n     DISPOSITION OF THE COMMON STOCK.  The Company may, but will not be\n     obligated to, withhold from my compensation the amount necessary to meet\n     any applicable withholding obligation including any withholding necessary\n     to make available to the Company any tax deductions or benefits\n     attributable to sale or early disposition of Common Stock by me.  If I\n     dispose of such shares at any time after the expiration of the 2-year and\n     1-year holding periods, I understand that I will be treated for federal\n     income tax purposes as having received income only at the time of such\n     disposition, and that such income will be taxed as ordinary income only to\n     the extent of an amount equal to the lesser of (1) the excess of the fair\n     market value of the shares at the time of such disposition over the\n     purchase price which I paid for the shares, or (2) 15% of the fair market\n     value of the shares on the first day of the Offering Period.  The remainder\n     of the gain, if any, recognized on such disposition will be taxed as\n     capital gain.\n\n7.   I hereby agree to be bound by the terms of the Employee Stock Purchase\n     Plan.  The effectiveness of this Subscription Agreement is dependent upon\n     my eligibility to participate in the Employee Stock Purchase Plan.\n\n8.   In the event of my death, I hereby designate the following as my\n     beneficiary(ies) to receive all payments and shares due me under the\n     Employee Stock Purchase Plan:\n\n\nNAME:  (Please print)\n                     ------------------------------------------------\n                      (First)         (Middle)               (Last)\n\n\n-------------------------------    ---------------------------------------------\nRelationship\n\n\n                                   ---------------------------------------------\n                                   (Address)\n\n\n                                    -2-\n\n\n\nEmployee's Social\nSecurity Number:\n                                   ------------------------------------\n\n\n\nEmployee's Address:\n                                   ------------------------------------\n\n                                   ------------------------------------\n     \n                                   ------------------------------------\n\n\nI UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT\nSUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.\n\n\n\nDated:\n       -------------------------   ----------------------------------------\n                                   Signature of Employee\n\n\n                                   ----------------------------------------\n                                   Spouse's Signature (If beneficiary other \n                                   than spouse)\n\n\n                                         -3-\n\n\n                                      EXHIBIT B\n\n\n                                   INTRAWARE, INC.\n\n                          1998 EMPLOYEE STOCK PURCHASE PLAN\n\n                                 NOTICE OF WITHDRAWAL\n\n\n\n     The undersigned participant in the Offering Period of the Intraware, Inc.\n1998 Employee Stock Purchase Plan which began on ____________, 19____ (the\n'Enrollment Date') hereby notifies the Company that he or she hereby withdraws\nfrom the Offering Period.  He or she hereby directs the Company to pay to the\nundersigned as promptly as practicable all the payroll deductions credited to\nhis or her account with respect to such Offering Period.  The undersigned\nunderstands and agrees that his or her option for such Offering Period will be\nautomatically terminated.  The undersigned understands further that no further\npayroll deductions will be made for the purchase of shares in the current\nOffering Period and the undersigned shall be eligible to participate in\nsucceeding Offering Periods only by delivering to the Company a new Subscription\nAgreement.\n\n                                   Name and Address of Participant:\n\n                                   --------------------------------\n\n                                   --------------------------------\n\n                                   --------------------------------\n\n\n                                   Signature:\n\n\n                                   --------------------------------\n\n\n                                   Date:\n                                        ----------------------------\n \n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7907],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9545],"class_list":["post-38301","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intraware-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__esp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38301","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38301"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38301"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38301"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}