Form S-8 DETERMINE, INC.

November 13, 2017 4:06 PM

As filed with the Securities and Exchange Commission on November 13, 2017

 

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

DETERMINE, INC.

(Exact name of registrant as specified in its charter)

Delaware

 

77-0432030

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer
Identification No.)

 

 

615 West Carmel Drive, Suite 100, Carmel, IN 46032

(Address of principal executive offices) (Zip Code)

 

Inducement Grant Non-Plan Stock Option Agreement and Restricted Stock Units Agreement

(Full title of the Plan)  

 

John Nolan
Chief Financial Officer
Determine, Inc.

615 West Carmel Drive, Suite 100, Carmel, IN 46032

(Name and address of agent for service)

 

(650) 532-1500

(Telephone number, including area code, of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer

 

 

Accelerated filer

 

 

 

 

 

 

 

 

Non-accelerated filer

 

 

Smaller reporting company

 

             
       

Emerging growth company

 

     

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.

 

 

 

 

 

 

CALCULATION OF REGISTRATION FEE

Title of Securities to be Registered

Amount

to be

Registered (1)

Proposed

Maximum
Offering Price

per Share

Proposed

Maximum
Aggregate

Offering
Price

Amount of
Registration

Fee (2)

Common stock, $0.0001 par value

200,000 (3)

$2.19(2)

$438,000(2)

$55

 

 

 

 

 

Common stock, $0.0001 par value

20,000 (4)

$2.19(2)

$43,800(2)

$6

 

 

 

 

 

(1)

In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of common stock of Determine, Inc. (the “Registrant”).

 

 

(2)

Estimated solely for purposes of calculating the registration fee pursuant to Securities Act Rules 457(c) and 457(h). The proposed maximum offering price per share, proposed maximum aggregate offering price and the amount of the registration fee are based on the average of the high and low prices of the registrant’s shares of common stock on November 7, 2017, as reported on the NASDAQ Capital Market.

 

 

(3)

Represents the number of shares of Determine, Inc. common stock that may be issued upon the exercise of the Non-Plan Stock Option granted to Gérard Dahan, Chief Marketing Officer and Senior Vice President of EMEA, granted as an inducement grant outside of the Determine, Inc. 2015 Equity Incentive Plan (the “2015 Plan”) in reliance on NASDAQ Listing Rule 5635(c)(4).

   

(4)

Represents the number of shares of Determine, Inc. common stock that may be issued upon settlement of the Non-Plan Restricted Stock Units granted to Gérard Dahan, granted as an inducement grant outside of the 2015 Plan in reliance on NASDAQ Listing Rule 5635(c)(4).

 

 

 

EXPLANATORY NOTE

 

This Registration Statement registers an aggregate of 220,000 shares of common stock, par value $0.0001 per share (“Common Stock”), of Determine, Inc. (the “Company”). The number of shares registered hereby is the sum of: (a) 200,000 shares of common stock issuable upon exercise of a compensatory nonqualified inducement stock option (the “Option”) granted to Gérard Dahan, our Chief Marketing Officer and Senior Vice President of EMEA, pursuant to a Non-Plan Stock Option Agreement, to be entered into on or about November 14, 2017, which will be entered into as an inducement award in reliance on NASDAQ Listing Rule 5635(c)(4) and (b) 20,000 shares of common stock issuable upon the settlement of restricted stock units (the “RSUs”) granted to Mr. Dahan pursuant to a Non-Plan Restricted Stock Units Agreement, to be entered into on or about November 14, 2017, which will be entered into as an inducement award in reliance on NASDAQ Listing Rule 5635(c)(4).

  

  

PART I

 

Information Required in the Section 10(a) Prospectus

 

The documents containing the information specified in “Item 1. Plan Information” and “Item 2. Registrant Information and Employee Plan Annual Information” of this Part I of this Registration Statement will be sent or given to Mr. Dahan as specified by Rule 428(b)(1) of the Securities Act. In accordance with the Note to Part I of Form S-8, such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

 

 

 

PART II

 

Information Required in the Registration Statement

 

Item 3.

Incorporation of Documents by Reference

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:

 

 

(a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended March 31, 2017;

 

 

(b)

The Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017;

 

 

(c)

The Registrant’s Current Reports on Forms 8-K filed with the Commission on June 6, 2017, June 8, 2017 (excluding item 2.02 and Exhibit 99.1 thereto), June 21, 2017, August 10, 2017 (excluding Item 2.02 and Exhibit 99.1 thereto), September 13, 2017, October 4, 2017 and November 9, 2017 (excluding Item 2.02 and Exhibit 99.1 thereto); and

 

 

(d)

The description of the Registrant’s outstanding common stock contained in the Registrant’s Registration Statement No. 000-29637 on Form 8-A filed with the Commission on February 22, 2000, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents, except for the documents, or portions thereof, that are “furnished” rather than filed with the Commission.

 

Item 4.

Description of Securities 

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel 

 

Not applicable.

 

Item 6.

Indemnification of Directors and Officers 

 

Section 102 of the Delaware General Corporation Law, as amended (“DGCL”), allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.

   

Section 145 of the DGCL provides, among other things, that the company may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the company) by reason of the fact that the person is or was a director, officer, agent or employee of the company or is or was serving at the company’s request as a director, officer, agent or employee of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgment, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding. The power to indemnify applies (a) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding, or (b) if such person acted in good faith and in a manner he reasonably believed to be in the best interest, or not opposed to the best interest, of the company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the company as well, but only to the extent of defense expenses (including attorneys’ fees but excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of his duties to the company, unless the court believes that in light of all the circumstances indemnification should apply.

 

 

 

 

Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions be entered in the books containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

 

Article IX of our Second Amended and Restated Certificate of Incorporation, as amended to date, provides that a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, to the fullest extent permitted by the DGCL.

 

Article VI of our Amended and Restated Bylaws provide that we are required to indemnify our directors and officers to the fullest extent permitted by the DGCL. Our Bylaws also provide that we shall advance expenses incurred by a director or officer before the final disposition of any action or proceeding upon receipt of an undertaking from or on behalf of that director or officer to repay the advance if it is ultimately determined that he or she is not entitled to be indemnified. We have entered into and expect to continue to enter into agreements to indemnify our directors and executive officers as determined by the Board of Directors. These agreements generally provide for indemnification for all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by these individuals and arising out of the their service as our directors or executive officers (or in certain other capacities at our request) to the fullest extent permitted by the DGCL and to any greater extent that such law may in the future permit. These agreements further provide procedures for the determination of the right to receive indemnification and the advancement of expenses. We believe that these provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers.

 

The indemnification provisions contained in our Second Amended and Restated Certificate of Incorporation, as amended, and Amended and Restated Bylaws are not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. In addition, we maintain insurance on behalf of its directors and executive directors or officers insuring them against any liability asserted against them in their capacities as directors or officers or arising out of such status. The foregoing descriptions are only general summaries.

 

Item 7.

Exemption from Registration Claimed 

 

Not applicable.

 

Item 8.

Exhibits 

 

The following documents are filed as exhibits to this registration statement, including those exhibits incorporated herein by reference to a prior filing under the Securities Act or the Exchange Act:

 

Exhibit
Number

 

Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 

Filed

Herewith

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.1

 

Certificate of Incorporation

 

10-Q

 

000-29637

 

3.1

 

November 16, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.2

 

Amended and Restated Bylaws

 

8-K

 

000-29637

 

3.1

 

June 21, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.3

 

Amended and Restated Rights Agreement between Registrant and Computershare Trust Company, N.A., as Rights Agent, dated January 2, 2009.

 

8-K

 

000-29637

 

4.1

 

January 5, 2009

 

 

 

 

 

 

 

4.4

 

Amendment dated as of January 26, 2009, to the Amended and Restated Rights Agreement between Registrant and Computershare Trust Company, N.A. as Rights Agent, dated January 2, 2009.

 

8-K

 

000-29637

 

4.2

 

January 28, 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.5

 

Amendment 2, dated as of April 27, 2009, between Registrant and Wells Fargo Bank, N.A., as Rights Agent, to the Amended and Restated Rights Agreement between Registrant and Computershare Trust Company, N.A., dated January 2, 2009, as amended.

 

8-K

 

000-29637

 

4.3

 

April 29, 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.6

 

Amendment 3, dated as of December 28, 2011, between Registrant and Wells Fargo Bank, N.A., as Rights Agent, to the Amended and Restated Rights Agreement between Registrant and the Rights Agent, dated January 2, 2009, as amended.

 

8-K

 

000-29637

 

4.4

 

December 29, 2011

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.7

 

Amendment 4, dated as of December 28, 2014, between Registrant and Wells Fargo Bank, N.A., as Rights Agent, to the Amended and Restated Rights Agreement between Registrant and the Rights Agent, dated January 2, 2009, as amended.

 

8-K

 

000-29637

 

4.5

 

December 29, 2014

 

 

 

                           

4.8

 

Form of Non-Plan Stock Option Agreement with Gérard Dahan

                 

X

 
                           

4.9

 

Form of Non-Plan Restricted Stock Units Agreement with Gérard Dahan

                 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5.1

 

Opinion of DLA Piper LLP (US) regarding legality of the shares of common stock being registered.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm - Armanino LLP.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

23.2

 

Consent of DLA Piper LLP (US) (included in Exhibit 5.1 to this Registration Statement on Form S-8).

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24.1

 

Power of Attorney (included on signature page).

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

Item 9.

Undertakings 

 

(a) The undersigned Registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement; and

 

(2) That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof; and

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

  

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions described herein, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Carmel, State of Indiana on this 13th day of November, 2017.

 

 

 

 

 

 

By:

/s/ John K. Nolan

 

 

 

John K. Nolan

 

 

 

Chief Financial Officer

 

 

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

POWER OF ATTORNEY
 

We the undersigned officers and directors of Determine, Inc., hereby severally constitute and appoint Patrick Stakenas and John Nolan, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any other Registration Statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Name 

 

Title 

 

Date 

 

 

 

 

 

/s/ Patrick Stakenas

 

Chief Executive Officer and Director

 

November 13, 2017

Patrick Stakenas

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ John Nolan

 

Chief Financial Officer

 

November 13, 2017

John Nolan

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

 

 

 

 

 

/s/ Michael Brodsky

 

Director

 

November 13, 2017

Michael Brodsky

 

 

 

 

 

 

 

 

 

/s/ Alan Howe

 

Director

 

November 13, 2017

Alan Howe

 

 

 

 

 

 

 

 

 

/s/ Lloyd Sems

 

Director

 

November 13, 2017

Lloyd Sems

 

 

 

 

 

 

 

 

 

/s/ Michael Casey

 

Director

 

November 13, 2017

Michael Casey

 

 

 

 

 

 

 

 

 

/s/ J. Michael Gullard

 

Director

 

November 13, 2017

J. Michael Gullard

 

 

 

 

 

 

 

 

 

/s/ Bill Angeloni

 

Director

 

November 13, 2017

Bill Angeloni 

 

 

 

 

 

 

 

 

 

/s/ Steven Sovik

 

Director

 

November 13, 2017

Steven Sovik

 

 

 

 

  

 

 

 

EXHIBIT INDEX

 

 

Exhibit
Number

 

Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 

Filed

Herewith

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.1

 

Certificate of Incorporation

 

10-Q

 

000-29637

 

3.1

 

November 16, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.2

 

Amended and Restated Bylaws

 

8-K

 

000-29637

 

3.1

 

June 21, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.3

 

Amended and Restated Rights Agreement between Registrant and Computershare Trust Company, N.A., as Rights Agent, dated January 2, 2009.

 

8-K

 

000-29637

 

4.1

 

January 5, 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.4

 

Amendment dated as of January 26, 2009, to the Amended and Restated Rights Agreement between Registrant and Computershare Trust Company, N.A. as Rights Agent, dated January 2, 2009.

 

8-K

 

000-29637

 

4.2

 

January 28, 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.5

 

Amendment 2, dated as of April 27, 2009, between Registrant and Wells Fargo Bank, N.A., as Rights Agent, to the Amended and Restated Rights Agreement between Registrant and Computershare Trust Company, N.A., dated January 2, 2009, as amended.

 

8-K

 

000-29637

 

4.3

 

April 29, 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.6

 

Amendment 3, dated as of December 28, 2011, between Registrant and Wells Fargo Bank, N.A., as Rights Agent, to the Amended and Restated Rights Agreement between Registrant and the Rights Agent, dated January 2, 2009, as amended.

 

8-K

 

000-29637

 

4.4

 

December 29, 2011

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.7

 

Amendment 4, dated as of December 28, 2014, between Registrant and Wells Fargo Bank, N.A., as Rights Agent, to the Amended and Restated Rights Agreement between Registrant and the Rights Agent, dated January 2, 2009, as amended.

 

8-K

 

000-29637

 

4.5

 

December 29, 2014

 

 

 

                           

4.8

 

Form of Non-Plan Stock Option Agreement with Gérard Dahan

                 

X

 
                           

4.9

 

Form of Non-Plan Restricted Stock Units Agreement with Gérard Dahan

                 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5.1

 

Opinion of DLA Piper LLP (US) regarding legality of the shares of common stock being registered.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm - Armanino LLP.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

23.2

 

Consent of DLA Piper LLP (US) (included in Exhibit 5.1 to this Registration Statement on Form S-8).

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24.1

 

Power of Attorney (included on signature page).

 

 

 

 

 

 

 

 

 

X

 

 

Exhibit 4.8

 

DETERMINE, INC.

NOTICE OF GRANT OF STOCK OPTION

(Non-Plan Inducement Award)

 

Determine, Inc. (the Company) has granted you an option (the Option) to purchase certain shares of Stock of the Company. The Option has been granted outside of the Determine, Inc. 2015 Equity Incentive Plan (the Plan), in reliance on NASDAQ Marketplace Rule 5635(c)(4), and is subject to the terms of this Notice of Grant of Stock Option (the “Grant Notice”) and the attached Stock Option Agreement (the “Option Agreement”); however, as set forth in the Option Agreement, certain provisions set forth in the Plan are incorporated by reference for purposes of administering and interpreting this Option.

 

 

Optionee:

Gérard Dahan

   
       

Date of Grant:

November 14, 2017

   

Number of Option Shares:

200,000, subject to adjustment as provided by the Option Agreement.

   

Exercise Price:

US$_________

   

Initial Vesting Date:

September 25, 2018

   

Option Expiration Date:

November 14, 2027. This Option expires earlier if your Service terminates earlier, as described in the Option Agreement.

   

Tax Status of Option:

French Tax Status. The Option is not intended to be tax-qualified under French tax laws including, without limitation, under Articles L. 225-197-6 or Articles L. 225-177 to L. 225-185 of the French Commercial Code.  For purposes of US taxation, if applicable, the Option is intended to be a Non-Statutory Option (NSO).

   

Vested Shares:

Except as provided in the Option Agreement, the number of Vested Shares (disregarding any resulting fractional share) as of any date is determined by multiplying the Number of Option Shares by the Vested Ratio determined as of such date as follows:

   
   

Vested Ratio

 

Prior to Initial Vesting Date

0

     
 

On Initial Vesting Date, provided your Service has not terminated prior to such date

1/4

     
 

Plus, for each additional month of Service from Initial Vesting Date until the Vested Ratio equals 1/1, an additional

1/48

 

By their signatures below or by electronic acceptance or authentication in a form authorized by the Company, the Company and you agree that the Option is governed by this Grant Notice and by the provisions of the Option Agreement, which is made a part of this document. You represent that you have read and are familiar with the provisions of the Option Agreement, and hereby accept the Option subject to all of its terms and conditions.

 

You understand that you will be provided with a paper copy of any documents if the attempted electronic delivery of such documents fails. Similarly, you understand and agree that you must provide the Company or any designated third party administrator with a paper copy of any documents if the attempted electronic delivery of such documents fails. You may revoke your consent to the electronic delivery of documents described herein or may change the electronic mail address to which such documents are to be delivered at any time by notifying the Company of such revoked consent or revised e-mail address by telephone, postal service or electronic mail. Finally, you understand and agree that you are not required to consent to electronic delivery of documents described herein.

 

[Signature Page Follows]

 

 

 

 

DETERMINE, INC.

 

OPTIONEE

       

By:

     

Name:

   

Signature

Title:

     
     

Date

         
       

Address

 

 

 

 

Determine, Inc.

 

Stock Option Agreement

(Non-Plan Inducement Award)

 

Tax Treatment

 

French Tax Status. The Option is not intended to be tax-qualified under French tax laws including, without limitation, under Articles L. 225-197-6 or Articles L. 225-177 to L. 225-185 of the French Commercial Code. For purposes of US taxation, if applicable, the Option is intended to be a Non-Statutory Option (NSO).

     

Non-Plan Grant

 

This Option is being granted outside of the Plan in reliance on NASDAQ Marketplace Rule 5635(c)(4). However, as set forth below, unless otherwise defined herein, capitalized terms shall have the meaning set forth in the Plan. In addition, certain provisions set forth in the Plan shall govern the terms, administration, and interpretation of this Option (collectively, the defined terms and provisions are referred to as the “Applicable Plan Provisions”). For purposes of this Option Agreement, the following Sections of the Plan, as in effect on the Date of Grant, are hereby incorporated by reference: Sections 2, 3 (other than Section 3.4), 4.4, 6, 12 (other than Section 12.3), 13, 14, 15, and 17, and shall be considered Applicable Plan Provisions for purposes of the Option.

 

 

 

Vesting

 

This Option becomes vested and exercisable during its term in accordance with the Vesting Schedule set out in the Grant Notice and with the applicable provisions of this Option Agreement.

 

 

 

Term

 

This Option expires in any event at the close of business at Company headquarters on the day before the 10th anniversary of the Date of Grant, as shown in the Grant Notice. (It will expire earlier if your Service terminates, as described below.)

 

 

 

Regular Termination

 

If your Service terminates for any reason except death or Disability, then this Option will expire at the close of business at Company headquarters on the date three months after your Service termination date. The Company determines when your Service terminates, as well as the effect of such termination, for this purpose.

 

 

 

Death

 

If you die before your Service terminates, then this Option will expire at the close of business at Company headquarters on the date 12 months after the date of death.

 

 

 

Disability

 

If your Service terminates because of your Disability, then this Option will expire at the close of business at Company headquarters on the date 12 months after your termination date.

 

 

 

Leaves of Absence and Part-Time Work

 

For purposes of this Option, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing and if continued crediting of Service is required by the terms of the leave or by applicable law. However, your Service terminates when the approved leave ends, unless you immediately return to active work. In addition, the provisions set forth in Section 2.1(aaa) shall govern the treatment of any leave period.

 

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Notwithstanding the foregoing, if you go on a leave of absence, then the vesting schedule specified in the Grant Notice may be adjusted in accordance with the Company’s leave of absence policy or the terms of your leave. If you commence working on a part-time basis, then the vesting schedule specified in the Grant Notice may be adjusted in accordance with the Company’s part-time work policy or the terms of an agreement between you and the Company pertaining to your part-time schedule.

 

 

 

Restrictions on Exercise

 

The Company will not permit you to exercise this Option if the issuance of shares at that time would violate any law or regulation.

 

 

 

Notice of Exercise

 

When you wish to exercise this Option, you must notify the Company by filing the proper exercise form as described below. Your notice must specify how many shares you wish to purchase. Your notice must also specify how your shares should be registered. The notice will be effective when the Company receives it.

 

 

 

 

 

If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.

 

 

 

Method of Exercise

 

Exercise of this Option shall be by means of electronic or written notice (the “Exercise Notice”) in a form authorized by the Company. An electronic Exercise Notice must be digitally signed or authenticated by you in such manner as required by the notice and transmitted to the Company or an authorized representative of the Company (including a third-party administrator designated by the Company). In the event that you are not authorized or are unable to provide an electronic Exercise Notice, the Option shall be exercised by a written Exercise Notice addressed to the Company, which shall be signed by you and delivered in person, by certified or registered mail, return receipt requested, by confirmed facsimile transmission, or by such other means as the Company may permit, to the Company, or an authorized representative of the Company (including a third-party administrator designated by the Company). Each Exercise Notice, whether electronic or written, must state your election to exercise the Option, the number of whole shares of Stock for which the Option is being exercised and such other representations and agreements as to your investment intent with respect to such shares as may be required pursuant to the provisions of this Option Agreement. Further, each Exercise Notice must be received by the Company prior to the termination of the Option as set forth above and must be accompanied by full payment of the aggregate Exercise Price for the number of shares of Stock being purchased. The Option shall be deemed to be exercised upon receipt by the Company of such electronic or written Exercise Notice and the aggregate Exercise Price.

     

Payment of Exercise Price

 

Except as otherwise provided below, payment of the aggregate Exercise Price for the number of shares of Stock for which the Option is being exercised shall be made (i) in cash, by check or in cash equivalent; (ii) if permitted by the Company and subject to the limitations contained below, by means of (1) a Cashless Exercise, (2) a Net-Exercise, or (3) a Stock Tender Exercise; or (iii) by any combination of the foregoing.

     
   

The Company reserves, at any and all times, the right, in the Company’s sole and absolute discretion, to establish, decline to approve or terminate any program or procedure providing for payment of the Exercise Price through any of the means described below, notwithstanding that such program or procedures may be available to others:

     
   

(i)     Cashless Exercise. A Cashless Exercise means the delivery of a properly executed Exercise Notice together with irrevocable instructions to a broker in a form acceptable to the Company providing for the assignment to the Company of the proceeds of a sale or loan with respect to shares of Stock acquired upon the exercise of the Option in an amount not less than the aggregate Exercise Price for such shares (including, without limitation, through an exercise complying with the provisions of Regulation T as promulgated from time to time by the Board of Governors of the Federal Reserve System).

 

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(ii)    Net-Exercise. A “Net-Exercise” means the delivery of a properly executed Exercise Notice electing a procedure pursuant to which (1) the Company will reduce the number of shares otherwise issuable to the Participant upon the exercise of the Option by the largest whole number of shares having a Fair Market Value that does not exceed the aggregate Exercise Price for the shares with respect to which the Option is exercised, and (2) you shall pay to the Company in cash the remaining balance of such aggregate Exercise Price not satisfied by such reduction in the number of whole shares to be issued. Following a Net-Exercise, the number of shares remaining subject to the Option, if any, shall be reduced by the sum of (1) the net number of shares issued to you upon such exercise, and (2) the number of shares deducted by the Company for payment of the aggregate Exercise Price.

     
   

(iii)    Stock Tender Exercise. A “Stock Tender Exercise” means the delivery of a properly executed Exercise Notice accompanied by (1) your tender to the Company, or attestation to the ownership, in a form acceptable to the Company of whole shares of Stock having a Fair Market Value that does not exceed the aggregate Exercise Price for the shares with respect to which the Option is exercised, and (2) your payment to the Company in cash of the remaining balance of such aggregate Exercise Price not satisfied by such shares’ Fair Market Value. A Stock Tender Exercise shall not be permitted if it would constitute a violation of the provisions of any law, regulation or agreement restricting the redemption of the Company’s stock. If required by the Company, the Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock unless such shares either have been owned by the Participant for a period of time required by the Company (and not used for another option exercise by attestation during such period) or were not acquired, directly or indirectly, from the Company.

     

Withholding Taxes and Stock Withholding

 

At the time the Option is exercised, in whole or in part, or at any time thereafter as requested by a Participating Company, you hereby authorize withholding from payroll and any other amounts payable to you, and you otherwise agree to make adequate provision for (including by means of a Cashless Exercise to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax (including any social insurance) withholding obligations of the Participating Company Group, if any, which arise in connection with the Option or subsequent sale of shares (“Tax Obligations”). The Company shall have no obligation to deliver shares of Stock until the Tax Obligations of the Participating Company Group have been satisfied by you. You acknowledge and agree that the ultimate liability for all Tax Obligations is and remains your responsibility and that the Company (a) makes no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the option and (b) does not commit to structure the terms of the grant or any other aspect of the option to reduce or eliminate your liability for Tax Obligations.

     
   

In addition, the Company shall have the right, but not the obligation, to require you to satisfy all or any portion of a Participating Company’s tax withholding obligations upon exercise of the Option by deducting from the shares of Stock otherwise issuable to you upon such exercise a number of whole shares having a fair market value, as determined by the Company as of the date of exercise, not in excess of the amount of such tax withholding obligations determined by the applicable minimum statutory withholding rates. 

 

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Restrictions on Resale

 

You agree not to sell any Option shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify.

     

Transfer of Option

 

Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will or a beneficiary designation.

     
   

Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from your former spouse, nor is the Company obligated to recognize your former spouse’s interest in your Option in any other way.

     

Service and Employment Conditions

 

In accepting the option, you acknowledge and agree as follows:

 

Any notice period mandated under applicable law shall not be treated as Service for the purpose of determining the vesting of the Option; and your right to vesting of shares in settlement of the Option after termination of Service, if any, will be measured by the date of termination of your active Service and will not be extended by any notice period mandated under applicable law. Subject to the foregoing and the provisions herein, the Company, in its sole discretion, shall determine whether your Service has terminated and the effective date of such termination.

 

 

The grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of options, or benefits in lieu of options, even if options have been granted repeatedly in the past.

 

 

All decisions with respect to future option grants, if any, will be at the sole discretion of the Company.

 

 

Your receipt of the Option shall not create a right to further Service with the Company or any of its parents or subsidiaries and shall not interfere with the ability of the Company or its parents or subsidiaries to terminate your Service at any time, with or without cause, subject to applicable law.

 

 

You are voluntarily participating in the Option.

 

 

The Option is an extraordinary item that does not constitute compensation of any kind for Service of any kind rendered to the Company or any parent or subsidiary, and which is outside the scope of your employment contract, if any.

 

 

The Option is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.

 

 

The Option grant will not be interpreted to form an employment contract or relationship with any subsidiary or parent of the Company.

 

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The future value of the underlying shares of stock is unknown and cannot be predicted with certainty. The value of the shares of stock may increase or decrease.

 

 

No claim or entitlement to compensation or damages arises from termination of the Option or diminution in value of the option or shares and you irrevocably release the Company and its parents and subsidiaries from any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Option Agreement, you shall be deemed irrevocably to have waived your entitlement to pursue such a claim.

 

Data Privacy Consent

 

You understand and agree that the Company and its parent(s) or subsidiaries may collect, where permissible under applicable law, certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all options granted under this Agreement or any other entitlement to shares of stock awarded, canceled, vested, unvested or outstanding in your favor (“Data”), for the exclusive purpose of implementing, administering and managing the Option. You understand and agree that Company may transfer your Data to the United States, which is not considered by the European Commission to have data protection laws equivalent to the laws in your country. You understand and agree that the Company will transfer your Data to its designated broker, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Option. You understand and agree that the recipients of the Data may be located in the United States or elsewhere, and that a recipient’s country of operation (e.g., the United States) may have different data privacy laws that the European Commission or your jurisdiction does not consider to be equivalent to the protections in your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the Company, the Company’s designated broker and any other possible recipients which may assist the Company with implementing, administering and managing this Option to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Option. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Option. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that your providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your employment status or career with the Company or its parent(s) or subsidiaries will not be adversely affected; the only adverse consequence of refusing or withdrawing your consent is that the Company would not be able to grant you options or other equity awards, or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Option but will have no further detrimental impact on you whatsoever. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative. You understand that you have the right to access, and to request a copy of, the Data held about you. You also understand that you have the right to discontinue the collection, processing, or use of your Data, or supplement, correct, or request deletion of your Data. To exercise your rights, you may contact your local human resources representative. You hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of your personal data as described in this Option Agreement and any other Option materials by and among, as applicable, the Company and its parent(s) or subsidiaries for the exclusive purpose of implementing, administering and managing your Options under the Grant Notice and this Option Agreement. You understand that your consent will be sought and obtained for any processing or transfer of your data for any purpose other than as described in this Option Agreement and Grant Notice.

 

 

 

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Stockholder Rights

 

You, or your estate or heirs, have no rights as a stockholder of the Company until you have exercised this Option by giving the required notice to the Company and paying the exercise price. No adjustments are made for dividends or other rights if the applicable record date occurs before you exercise this Option, except as described in the Applicable Plan Provisions.

     

Adjustments

 

In the event of a stock split, a stock dividend or a similar change in Company stock, the number of shares covered by this Option and the exercise price per share may be adjusted as described in the Applicable Plan Provisions.

     

Applicable Law

 

This Option Agreement will be interpreted and enforced under the laws of the State of Delaware (without regard to their choice-of-law provisions) except as required under mandatory provisions of local law.

     

French Legal Notices

 

Securities Disclaimer. Your grant of the Option is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Directive as implemented in France.

 

Language Consent. In accepting the grant of the Grant Notice and Option Agreement which provide for the terms and conditions of the Option, the Optionee confirms that he or she has read and understood the documents relating to the Option (the Grant Notice, Applicable Plan Provisions, and Option Agreement), which were provided in the English language. the Optionee accepts the terms of these documents accordingly.

 

Consentement Relatif à la Langue Utilisée

 

En acceptant cette attribution gratuite d’actions et ce contrat qui contient les termes et conditions de cette attribution gratuite d’actions, l’employé confirme ainsi avoir lu et compris les documents relatifs à cette attribution (le Contrat d’Attribution) qui lui ont été communiqués en langue anglaise. L’employé en accepte les termes en connaissance de cause.
     

The Plan and Other Agreements

 

The portions of the Plan constituting Applicable Plan Provisions are incorporated in this Option Agreement by reference. 

 

Except with respect to any written service, employment, or severance arrangement specifically referencing the accelerated vesting of equity awards, this Option Agreement and the Applicable Plan Provisions constitute the entire understanding between you and the Company regarding this Option. Except as set forth in the preceding sentence, any prior agreements, commitments or negotiations concerning this Option are superseded. This Option Agreement may be amended only by another written agreement between the parties. 

 

By signing the Grant Notice, you agree to all of the terms and conditions of this Option Agreement, the Grant Notice and the Applicable Plan Provisions.

 

8

Exhibit 4.9

 

DETERMINE, INC.

NOTICE OF GRANT OF RESTRICTED STOCK UNITS

(Non-Plan Inducement Award)

 

Determine, Inc. (the Company) has granted to the Participant an award of certain restricted stock units (the Award), each of which represents the right to receive on the applicable Settlement Date one (1) share of Stock, subject to the terms and conditions of this Notice of Grant of Restricted Stock Units (the “Grant Notice”) and the Restricted Stock Units Agreement (the “Agreement”) attached to and incorporated into this Grant Notice. The Award has not been granted pursuant to the Determine, Inc. 2015 Equity Incentive Plan or any other stock-based compensation plan of the Company in reliance on NASDAQ Marketplace Rule 5635(c).

 

Participant:

Gérard Dahan

Employee ID:   

 
   

Date of Grant:

November 14, 2017

   

Total Number of Units:

20,000, subject to adjustment as provided by the Restricted Stock Units Agreement.

   

Settlement Date:

As soon as practicable on or after the date on which a Unit becomes a Vested Unit, but no later than March 15th of the calendar year following the year in which the Unit becomes a Vested Unit..

   

Vesting Commencement Date:

September 25, 2017

   

Performance Period:

Initial date of employment through March 31, 2018.

   

Vested Units:

Except as provided in the Restricted Stock Units Agreement and provided that the Participant’s Service has not terminated prior to the applicable date, the Total Number of Units shall vest if, and only if, Participant develops a sales pipeline with a value of $25,000,000 as measured by the Company in its discretion during the Performance Period.

   

Superseding Agreement:

 

French Tax Status:

None

 

Participant’s restricted stock units are not intended to be tax qualified under French tax laws including, without limitation, under Articles L. 225-197-1 to L. 225-197-6 of the French Commercial Code.

 

By their signatures below or by electronic acceptance or authentication in a form authorized by the Company, the Company and the Participant agree that the Award is governed by this Grant Notice and by the provisions of the Agreement, which is made a part of this document. The Participant represents that the Participant has read and is familiar with the provisions of the Agreement, and hereby accepts the Award subject to all terms and conditions.

 

Determine, Inc.

 

By: ___________________

Name: _________________

Title: __________________

 

Participant

_______________

Signature

_______________

Date

_____________________________

Address

 

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DETERMINE, INC.

RESTRICTED STOCK UNITS AGREEMENT

(Non-Plan Inducement Award)

 

Determine, Inc. has granted to the Participant named in the Grant Notice to which this Agreement is attached an Award consisting of Restricted Stock Units subject to the terms and conditions set forth in the Grant Notice and this Agreement. The Award has not been granted pursuant to the Determine, Inc. 2015 Equity Incentive Plan or any other stock-based compensation plan of the Company in reliance on NASDAQ Marketplace Rule 5635(c). By signing the Grant Notice, the Participant: (a) acknowledges receipt of and represents that the Participant has read and is familiar with the Grant Notice, this Agreement, and a prospectus for the Award prepared in connection with the registration with the Securities and Exchange Commission of the shares issuable pursuant to the Award (the Award Prospectus), (b) accepts the Award subject to all of the terms and conditions of the Grant Notice and this Agreement and (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Grant Notice or this Agreement.

 

1.     Definitions and Construction.

 

1.1     Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Grant Notice.

 

(a)     Affiliate means (i) a parent entity, other than a Parent Corporation, that directly, or indirectly through one or more intermediary entities, controls the Company or (ii) a subsidiary entity, other than a Subsidiary Corporation, that is controlled by the Company directly or indirectly through one or more intermediary entities. For this purpose, the terms “parent,” “subsidiary,” “control” and “controlled by” shall have the meanings assigned such terms for the purposes of registration of securities on Form S-8 under the Securities Act.

 

(b)     Change in Control means the occurrence of any one or a combination of the following:

 

(i)     any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total Fair Market Value or total combined voting power of the Company’s then-outstanding securities entitled to vote generally in the election of directors; provided, however, that a Change in Control shall not be deemed to have occurred if such degree of beneficial ownership results from any of the following: (A) an acquisition by any person who on the date immediately prior to the Transaction is the beneficial owner of more than fifty percent (50%) of such voting power, (B) any acquisition directly from the Company, including, without limitation, pursuant to or in connection with a public offering of securities, (C) any acquisition by the Company, (D) any acquisition by a trustee or other fiduciary under an employee benefit plan of a Participating Company or (E) any acquisition by an entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the voting securities of the Company; or

 

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(ii)     an Ownership Change Event or series of related Ownership Change Events (collectively, a Transaction) in which the stockholders of the Company immediately before the Transaction do not retain immediately after the Transaction direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding securities entitled to vote generally in the election of directors or, in the case of an Ownership Change Event described in Section 1.1(h), the entity to which the assets of the Company were transferred (the Transferee), as the case may be; or

 

(iii)     approval by the stockholders of a plan of complete liquidation or dissolution of the Company;

 

provided, however, that a Change in Control shall be deemed not to include a transaction described in subsections (i) or (ii) of this Section1.1(b) in which a majority of the members of the board of directors of the continuing, surviving or successor entity, or parent thereof, immediately after such transaction is comprised of Incumbent Directors.

 

For purposes of the preceding sentence, indirect beneficial ownership shall include, without limitation, an interest resulting from ownership of the voting securities of one or more corporations or other business entities which own the Company or the Transferee, as the case may be, either directly or through one or more subsidiary corporations or other business entities. The Committee shall determine whether multiple acquisitions of the voting securities of the Company and/or multiple Ownership Change Events are related and to be treated in the aggregate as a single Change in Control, and its determination shall be final, binding and conclusive.

 

(a)     Code means the Internal Revenue Code of 1986, as amended, and any applicable regulations promulgated thereunder.

 

(b)     “Committee means the Compensation Committee and such other committee or subcommittee of the Board of Directors of the Company (the “Board”), if any, duly appointed to administer the Award and having such powers in each instance as shall be specified by the Board. If, at any time, there is no committee of the Board then authorized or properly constituted to administer the Award, the Board shall exercise all of the powers of the Committee granted herein, and, in any event, the Board may in its discretion exercise any or all of such powers.

 

(c)     Company means Determine, Inc., a Delaware corporation, or any successor corporation thereto.

 

(d)     Dividend Equivalent Units mean additional Restricted Stock Units credited pursuant to the Dividend Equivalent Right described in Section 3.3.

 

(e)     Exchange Act means the Securities Exchange Act of 1934, as amended.

 

(f)     Fair Market Value means, as of any date, the value of a share of Stock or other property as determined by the Committee, in its discretion, or by the Company, in its discretion, if such determination is expressly allocated to the Company herein, subject to the following:

 

(i)     Except as otherwise determined by the Committee, if, on such date, the Stock is listed or quoted on a national or regional securities exchange or quotation system, the Fair Market Value of a share of Stock shall be the closing price of a share of Stock as quoted on the national or regional securities exchange or quotation system constituting the primary market for the Stock, as reported in The Wall Street Journal or such other source as the Company deems reliable. If the relevant date does not fall on a day on which the Stock has traded on such securities exchange or quotation system, the date on which the Fair Market Value shall be established shall be the last day on which the Stock was so traded or quoted prior to the relevant date, or such other appropriate day as shall be determined by the Committee, in its discretion.

 

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(ii)     Notwithstanding the foregoing, the Committee may, in its discretion, determine the Fair Market Value of a share of Stock on the basis of the opening, closing, or average of the high and low sale prices of a share of Stock on such date or the preceding trading day, the actual sale price of a share of Stock received by the Participant, any other reasonable basis using actual transactions in the Stock as reported on a national or regional securities exchange or quotation system, or on any other basis consistent with the requirements of Section 409A. The Committee may vary its method of determination of the Fair Market Value as provided in this Section for different purposes under the Agreement to the extent consistent with the requirements of Section 409A.

 

(iii)     If, on such date, the Stock is not listed or quoted on a national or regional securities exchange or quotation system, the Fair Market Value of a share of Stock shall be as determined by the Committee in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse, and in a manner consistent with the requirements of Section 409A.

 

(g)     Incumbent Director means a director who either (i) is a member of the Board as of the Effective Date or (ii) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but excluding a director who was elected or nominated in connection with an actual or threatened proxy contest relating to the election of directors of the Company).

 

(h)     “Ownership Change Event means the occurrence of any of the following with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the stockholders of the Company of securities of the Company representing more than fifty percent (50%) of the total combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; (ii) a merger or consolidation in which the Company is a party; or (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company (other than a sale, exchange or transfer to one or more subsidiaries of the Company).

 

(i)     Parent Corporation means any present or future “parent corporation” of the Company, as defined in Section 424(e) of the Code.

 

(j)     Participating Company means the Company or any Parent Corporation, Subsidiary Corporation or Affiliate.

 

(k)     Participating Company Group means, at any point in time, the Company and all other entities collectively which are then Participating Companies.

 

(l)     Section 409A means Section 409A of the Code.

 

(m)     Section 409A Deferred Compensation means compensation provided pursuant to the Award that constitutes nonqualified deferred compensation within the meaning of Section 409A.

 

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(n)     Service means the Participant’s employment or service with the Participating Company Group, whether as an employee, a director or a consultant. Unless otherwise provided by the Committee, the Participant’s Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders such Service or a change in the Participating Company for which the Participant renders such Service, provided that there is no interruption or termination of the Participant’s Service. Furthermore, the Participant’s Service shall not be deemed to have been interrupted or terminated if the Participant takes any military leave, sick leave, or other bona fide leave of absence approved by the Company. However, unless otherwise provided by the Committee, if any such leave taken by the Participant exceeds ninety (90) days, then on the ninety-first (91st) day following the commencement of such leave the Participant’s Service shall be deemed to have terminated, unless the Participant’s right to return to Service is guaranteed by statute or contract. Notwithstanding the foregoing, unless otherwise designated by the Company or required by law, an unpaid leave of absence shall not be treated as Service for purposes of determining vesting under the Participant’s Award Agreement. The Participant’s Service shall be deemed to have terminated either upon an actual termination of Service or upon the business entity for which the Participant performs Service ceasing to be a Participating Company. Subject to the foregoing, the Company, in its discretion, shall determine whether the Participant’s Service has terminated and the effective date of such termination.

 

(o)     Stock means the common stock of the Company, as adjusted from time to time in accordance with Section 9.

 

(p)     Subsidiary Corporation means any present or future “subsidiary corporation” of the Company, as defined in Section 424(f) of the Code.

 

(q)     Trading Compliance Policy means the written policy of the Company pertaining to the purchase, sale, transfer or other disposition of the Company’s equity securities by directors, officers, employees or other service providers who may possess material, nonpublic information regarding the Company or its securities.

 

(r)     Units means the Restricted Stock Units originally granted pursuant to the Award and the Dividend Equivalent Units credited pursuant to the Award, as both shall be adjusted from time to time pursuant to Section 9.

 

1.2      Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

 

2.     Administration.

 

All questions of interpretation concerning the Grant Notice and this Agreement shall be determined by the Committee. All such determinations by the Committee shall be final, binding and conclusive upon all persons having an interest in the Award, unless fraudulent or made in bad faith. Any and all actions, decisions and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Award or other agreement thereunder (other than determining questions of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon all persons having an interest in the Award. Any officer of the Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. The Committee shall have the full and final power and authority, in its discretion:

 

(a)     to determine the Fair Market Value of shares of Stock or other property;

 

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(b)     to determine whether the Award will be settled in shares of Stock, cash, other property or in any combination thereof;

 

(c)     to amend, modify, extend, cancel or renew the Award or to waive any restrictions or conditions applicable to the Award or any shares acquired pursuant thereto;

 

(d)     to accelerate, continue, extend or defer the exercisability or vesting of the Award or any shares acquired pursuant thereto, including with respect to the period following the Participant’s termination of Service; and

 

(e)     to correct any defect, supply any omission or reconcile any inconsistency herein and to make all other determinations and take such other actions with respect to the Award as the Committee may deem advisable to the extent not inconsistent with the provisions herein or applicable law.

 

3.     The Award.

 

3.1     Grant of Units. On the Date of Grant, the Participant shall acquire, subject to the provisions of this Agreement, the Total Number of Units set forth in the Grant Notice, subject to adjustment as provided in Section 3.3 and Section 9. Each Unit represents a right to receive on a date determined in accordance with the Grant Notice and this Agreement one (1) share of Stock.

 

3.2     No Monetary Payment Required. The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the Units or shares of Stock issued upon settlement of the Units, the consideration for which shall be past services actually rendered or future services to be rendered to a Participating Company or for its benefit. Notwithstanding the foregoing, if required by applicable law, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the shares of Stock issued upon settlement of the Units.

 

3.3     Dividend Equivalent Units. This Agreement also constitutes the award of a Dividend Equivalent Right to the Participant. On the date that the Company pays a cash dividend to holders of Stock generally, the Participant shall be credited with a number of additional whole Dividend Equivalent Units determined by dividing (a) the product of (i) the dollar amount of the cash dividend paid per share of Stock on such date and (ii) the sum of the Total Number of Units and the number of Dividend Equivalent Units previously credited to the Participant pursuant to the Award and which have not been settled or forfeited pursuant to the Company Reacquisition Right (as defined below) as of such date, by (b) the Fair Market Value per share of Stock on such date. Any resulting fractional Dividend Equivalent Unit shall be rounded to the nearest whole number. Such additional Dividend Equivalent Units shall be subject to the same terms and conditions and shall be settled or forfeited in the same manner and at the same time as the Restricted Stock Units originally subject to the Award with respect to which they have been credited.

 

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4.     Vesting of Units.

 

Units acquired pursuant to this Agreement shall become Vested Units as provided in the Grant Notice. Dividend Equivalent Units shall become Vested Units at the same time as the Restricted Stock Units originally subject to the Award with respect to which they have been credited. For purposes of determining the number of Vested Units following an Ownership Change Event, credited Service shall include all Service with any corporation which is a Participating Company at the time the Service is rendered, whether or not such corporation is a Participating Company both before and after the Ownership Change Event.

 

5.     Company Reacquisition Right.

 

5.1     Grant of Company Reacquisition Right. Except to the extent otherwise provided by the Superseding Agreement, if any, in the event that the Participant’s Service terminates for any reason or no reason, with or without cause, the Participant shall forfeit and the Company shall automatically reacquire all Units which are not, as of the time of such termination, Vested Units (“Unvested Units”), and the Participant shall not be entitled to any payment therefor (the “Company Reacquisition Right”).

 

5.2     Ownership Change Event, Non-Cash Dividends, Distributions and Adjustments. Upon the occurrence of an Ownership Change Event, a dividend or distribution to the stockholders of the Company paid in shares of Stock or other property, or any other adjustment upon a change in the capital structure of the Company as described in Section 9, any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends paid on Stock pursuant to the Company’s dividend policy, which shall be treated in accordance with Section 3.3) to which the Participant is entitled by reason of the Participant’s ownership of Unvested Units shall be immediately subject to the Company Reacquisition Right and included in the terms “Units” and “Unvested Units” for all purposes of the Company Reacquisition Right with the same force and effect as the Unvested Units immediately prior to the Ownership Change Event, dividend, distribution or adjustment, as the case may be. For purposes of determining the number of Vested Units following an Ownership Change Event, dividend, distribution or adjustment, credited Service shall include all Service with any corporation which is a Participating Company at the time the Service is rendered, whether or not such corporation is a Participating Company both before and after any such event.

 

6.     Settlement of the Award.

 

6.1     Issuance of Shares of Stock. Subject to the provisions of Section 6.3 below, the Company shall issue to the Participant on the Settlement Date with respect to each Vested Unit to be settled on such date one (1) share of Stock. Shares of Stock issued in settlement of Units shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Section 6.3, Section 7, 12 or the Company’s Trading Compliance Policy.

 

6.2     Beneficial Ownership of Shares; Certificate Registration. The Participant hereby authorizes the Company, in its sole discretion, to deposit any or all shares acquired by the Participant pursuant to the settlement of the Award with the Company’s transfer agent, including any successor transfer agent, to be held in book entry form, or to deposit such shares for the benefit of the Participant with any broker with which the Participant has an account relationship of which the Company has notice. Except as provided by the foregoing, a certificate for the shares acquired by the Participant shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant.

 

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6.3     Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and issuance of shares of Stock upon settlement of the Award shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance of any shares subject to the Award shall relieve the Company of any liability in respect of the failure to issue such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of the Award, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.

 

6.4     Fractional Shares. The Company shall not be required to issue fractional shares upon the settlement of the Award.

 

7.     Tax Withholding.

 

7.1     In General. At the time the Grant Notice is executed, or at any time thereafter as requested by a Participating Company, the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax (including any social insurance) withholding obligations of the Participating Company, if any, which arise in connection with the Award, the vesting of Units or the issuance of shares of Stock in settlement thereof. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Participating Company have been satisfied by the Participant. Participant acknowledges and agrees that the ultimate tax liability for all tax obligations is and remains Participant’s responsibility and that the Participating Company (a) makes no representations or undertakings regarding the treatment of any tax obligations in connection with any aspect of the Award and (b) does not commit to structure the terms of the grant or any other aspect of the Award to reduce or eliminate Participant’s tax obligations.

 

7.2     Assignment of Sale Proceeds. Subject to compliance with applicable law and the Company’s Trading Compliance Policy, if permitted by the Company, the Participant may satisfy the Participating Company’s tax withholding obligations in accordance with procedures established by the Company providing for delivery by the Participant to the Company or a broker approved by the Company of properly executed instructions, in a form approved by the Company, providing for the assignment to the Company of the proceeds of a sale with respect to some or all of the shares being acquired upon settlement of Units.

 

7.3     Withholding in Shares. The Company shall have the right, but not the obligation, to require the Participant to satisfy all or any portion of a Participating Company’s tax withholding obligations by deducting from the shares of Stock otherwise deliverable to the Participant in settlement of the Award a number of whole shares having a fair market value, as determined by the Company as of the date on which the tax withholding obligations arise, not in excess of the amount of such tax withholding obligations determined by the applicable minimum statutory withholding rates.

 

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8.

Change in Control.

 

8.1     Effect of Change in Control on Units. In the event of a Change in Control, the surviving, continuing, successor, or purchasing entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent of the Participant, assume or continue in full force and effect the Company’s rights and obligations under all or any portion of the outstanding Units or substitute for all or any portion of the outstanding Units substantially equivalent rights with respect to the Acquiror’s stock. For purposes of this Section, a Unit shall be deemed assumed if, following the Change in Control, the Unit confers the right to receive, subject to the terms and conditions of the this Agreement, the consideration (whether stock, cash, other securities or property or a combination thereof) to which a holder of a share of Stock on the effective date of the Change in Control was entitled (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Stock); provided, however, that if such consideration is not solely common stock of the Acquiror, the Committee may, with the consent of the Acquiror, provide for the consideration to be received upon settlement of the Unit to consist solely of common stock of the Acquiror equal in Fair Market Value to the per share consideration received by holders of Stock pursuant to the Change in Control. Notwithstanding the foregoing, to the extent that Units subject to the Award are not assumed, substituted for, or otherwise continued by the Acquiror in connection with the Change in Control, then the vesting of such Units shall accelerate in full and be settled immediately prior to, but conditioned upon, the consummation of the Change in Control.

 

8.2     Federal Excise Tax Under Section 4999 of the Code.

 

(a)     Excess Parachute Payment. In the event that any acceleration of vesting pursuant to the Award and any other payment or benefit received or to be received by the Participant would subject the Participant to any excise tax pursuant to Section 4999 of the Code due to the characterization of such acceleration of vesting, payment or benefit as an “excess parachute payment” under Section 280G of the Code, the Participant may elect to reduce the amount of any acceleration of vesting called for under the Award in order to avoid such characterization.

 

(b)     Determination by Independent Accountants. To aid the Participant in making any election called for under Section 8.2(a), no later than the date of the occurrence of any event that might reasonably be anticipated to result in an “excess parachute payment” to the Participant as described in Section 8.2(a), the Company shall request a determination in writing by independent public accountants selected by the Company (the Accountants). As soon as practicable thereafter, the Accountants shall determine and report to the Company and the Participant the amount of such acceleration of vesting, payments and benefits which would produce the greatest after-tax benefit to the Participant. For the purposes of such determination, the Accountants may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Participant shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make their required determination. The Company shall bear all fees and expenses the Accountants charge in connection with their services contemplated by this Section 8.2(b).

 

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9.     Adjustments for Changes in Capital Structure.

 

Subject to any required action by the stockholders of the Company and the requirements of Section 409A of the Code to the extent applicable, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (other than regular, periodic cash dividends paid on Stock pursuant to the Company’s dividend policy) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number of Units subject to the Award and/or the number and kind of shares or other property to be issued in settlement of the Award, in order to prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” Any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends paid on Stock pursuant to the Company’s dividend policy, which shall be treated in accordance with Section 3.3) to which the Participant is entitled by reason of ownership of Units acquired pursuant to this Award will be immediately subject to the provisions of this Award on the same basis as all Units originally acquired hereunder. Any fractional Unit or share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number. Such adjustments shall be determined by the Committee, and its determination shall be final, binding and conclusive.

 

10.     Rights as a Stockholder, Director, Employee or Consultant.

 

The Participant shall have no rights as a stockholder with respect to any shares which may be issued in settlement of this Award until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date the shares are issued, except as provided in Section 3.3 and Section 9. If the Participant is an employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant’s employment is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant’s Service at any time, subject to applicable law.

 

11.     Legends.

 

The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section.

 

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12.     Compliance with Section 409A.

 

It is intended that any election, payment or benefit which is made or provided pursuant to or in connection with this Award that may result in Section 409A Deferred Compensation shall comply in all respects with the applicable requirements of Section 409A (including applicable regulations or other administrative guidance thereunder, as determined by the Committee in good faith) to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A, the following shall apply:

 

12.1     Separation from Service; Required Delay in Payment to Specified Employee. Notwithstanding anything set forth herein to the contrary, no amount payable pursuant to this Agreement on account of the Participant’s termination of Service which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the Section 409A Regulations) shall be paid unless and until the Participant has incurred a “separation from service” within the meaning of the Section 409A Regulations. Furthermore, to the extent that the Participant is a “specified employee” within the meaning of the Section 409A Regulations as of the date of the Participant’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of the Participant’s separation from service shall be paid to the Participant before the date (the Delayed Payment Date) which is first day of the seventh month after the date of the Participant’s separation from service or, if earlier, the date of the Participant’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date.

 

12.2     Other Changes in Time of Payment. Neither the Participant nor the Company shall take any action to accelerate or delay the payment of any benefits which constitute a “deferral of compensation” within the meaning of Section 409A Regulations in any manner which would not be in compliance with the Section 409A Regulations.

 

12.3     Amendments to Comply with Section 409A; Indemnification. Notwithstanding any other provision of this Agreement to the contrary, the Company is authorized to amend this Agreement, to void or amend any election made by the Participant under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by the Company, in its discretion, to be necessary or appropriate to comply with the Section 409A Regulations without prior notice to or consent of the Participant. The Participant hereby releases and holds harmless the Company, its directors, officers and stockholders from any and all claims that may arise from or relate to any tax liability, penalties, interest, costs, fees or other liability incurred by the Participant in connection with the Award, including as a result of the application of Section 409A.

 

12.4     Advice of Independent Tax Advisor. The Company has not obtained a tax ruling or other confirmation from the Internal Revenue Service with regard to the application of Section 409A to the Award, and the Company does not represent or warrant that this Agreement will avoid adverse tax consequences to the Participant, including as a result of the application of Section 409A to the Award. The Participant hereby acknowledges that he or she has been advised to seek the advice of his or her own independent tax advisor prior to entering into this Agreement and is not relying upon any representations of the Company or any of its agents as to the effect of or the advisability of entering into this Agreement.

 

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13.     Miscellaneous Provisions.

 

13.1     Termination or Amendment. The Committee may terminate or amend this Agreement at any time; provided, however, that except as provided in Section 8 in connection with a Change in Control, no such termination or amendment may adversely affect the Participant’s rights under this Agreement without the consent of the Participant unless such termination or amendment is necessary to comply with applicable law or government regulation, including, but not limited to, Section 409A. No amendment or addition to this Agreement shall be effective unless in writing.

 

13.2     Nontransferability of the Award. Prior to the issuance of shares of Stock on the applicable Settlement Date, neither this Award nor any Units subject to this Award shall be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to the Award shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s guardian or legal representative.

 

13.3     Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

 

13.4     Binding Effect. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant’s heirs, executors, administrators, successors and assigns.

 

13.5     Delivery of Documents and Notices. Any document relating to the Award or any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail address, if any, provided for the Participant by a Participating Company, or upon deposit in the U.S. Post Office or foreign postal service, by registered or certified mail, or with a nationally recognized overnight courier service, with postage and fees prepaid, addressed to the other party at the address of such party set forth in the Grant Notice or at such other address as such party may designate in writing from time to time to the other party.

 

(a)     Description of Electronic Delivery. The Award documents, which may include but do not necessarily include: the Grant Notice, this Agreement, the Award Prospectus, and any reports of the Company provided generally to the Company’s stockholders, may be delivered to the Participant electronically. In addition, if permitted by the Company, the Participant may deliver electronically the Grant Notice to the Company or to such third party involved in administering the Award as the Company may designate from time to time. Such means of electronic delivery may include but do not necessarily include the delivery of a link to a Company intranet or the Internet site of a third party involved in administering the Award, the delivery of the document via e-mail or such other means of electronic delivery specified by the Company.

 

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(b)     Consent to Electronic Delivery. The Participant acknowledges that the Participant has read Section 13.5(a) of this Agreement and consents to the electronic delivery of the Award documents and, if permitted by the Company, the delivery of the Grant Notice, as described in Section 13.5(a). The Participant acknowledges that he or she may receive from the Company a paper copy of any documents delivered electronically at no cost to the Participant by contacting the Company by telephone or in writing. The Participant further acknowledges that the Participant will be provided with a paper copy of any documents if the attempted electronic delivery of such documents fails. Similarly, the Participant understands that the Participant must provide the Company or any designated third party administrator with a paper copy of any documents if the attempted electronic delivery of such documents fails. The Participant may revoke his or her consent to the electronic delivery of documents described in Section 13.5(a) or may change the electronic mail address to which such documents are to be delivered (if Participant has provided an electronic mail address) at any time by notifying the Company of such revoked consent or revised e-mail address by telephone, postal service or electronic mail. Finally, the Participant understands that he or she is not required to consent to electronic delivery of documents described in Section 13.5(a).

 

13.6     Service and Employment Conditions. In accepting the Award, Participant acknowledges and agrees as follows:

 

(a)     Any notice period mandated under applicable law shall not be treated as Service for purpose of the Award; and Participant’s right to vesting of the Award after termination of Service, if any, will be measured by the date of termination of Participant’s active Service and will not be extended by any notice period mandated under applicable law. Subject to the foregoing and the provisions herein, the Participating Company, in its sole discretion, shall determine whether Participant’s Service has terminated and the effective date of such termination.

 

(b)     The grant of the Award is voluntary and occasional and does not create any contractual or other right to receive future awards, or benefits in lieu of awards, even if awards have been granted repeatedly in the past.

 

(c)     All decisions with respect to future awards, if any, will be at the sole discretion of the Participating Company.

 

(d)     Participant’s receipt of the Award shall not create a right to further Service with the Participating Company and shall not interfere with the ability of the Participating Company to terminate Participant’s Service at any time, with or without cause, subject to applicable law.

 

(e)     Participant is voluntarily participating in the Award.

 

(f)     The Award is an extraordinary item that does not constitute compensation of any kind for Service of any kind rendered to the Participating Company and which is outside the scope of Participant’s employment contract, if any.

 

(g)     The Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.

 

(h)     The Award grant will not be interpreted to form an employment contract or relationship with any Participating Company.

 

(i)     The future value of the underlying shares of Stock is unknown and cannot be predicted with certainty. The value of the shares of Stock may increase or decrease.

 

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(j)     No claim or entitlement to compensation or damages arises from termination of the Award or diminution in value of the Award or shares and Participant irrevocably releases the Participating Company from any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Agreement and Grant Notice, Participant shall be deemed irrevocably to have waived Participant’s entitlement to pursue such a claim.

 

13.7     Data Privacy Consent. Participant understands and agrees that the Participating Company may collect, where permissible under applicable law, certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares or directorships held in the Participating Company, details of all options granted under this Agreement or any other entitlement to shares of stock awarded, canceled, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Award.  Participant understands and agrees that Company may transfer Participant’s Data to the United States, which is not considered by the European Commission to have data protection laws equivalent to the laws in Participant’s country.  Participant understand and agree that the Participating Company will transfer Participant’s Data to its designated broker, or such other stock plan service provider as may be selected by the Participating Company in the future, which is assisting the Participating Company with the implementation, administration and management of the Award.  Participant understands and agrees that the recipients of the Data may be located in the United States or elsewhere, and that a recipient’s country of operation (e.g., the United States) may have different data privacy laws that the European Commission or Participant’s jurisdiction does not consider to be equivalent to the protections in Participant’s country.  Participant understands that Participant may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative.  Participant authorize the Participating Company, the Participating Company’s designated broker and any other possible recipients which may assist the Participating Company with implementing, administering and managing the Award to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Award.  Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Award.  Participant understands that Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing Participant’s local human resources representative. Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis. If Participant does not consent, or if Participant later seeks to revoke his or her consent, Participant’s employment status or career with the Participating Company will not be adversely affected; the only adverse consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant other equity awards, or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Award but will have no further detrimental impact on Participant whatsoever.  For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understand that he or she  may contact Participant’s local human resources representative. Participant understands that Participant has the right to access, and to request a copy of, the Data held about Participant.  Participant also understand that Participant has the right to discontinue the collection, processing, or use of Participant’s Data, or supplement, correct, or request deletion of Participant’s Data. To exercise Participant’s rights, Participant may contact his or her local human resources representative.  Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Award by and among, as applicable, the Participating Company for the exclusive purpose of implementing, administering and managing Participant’s Award under the Grant Notice and this Agreement. Participant understands that Participant’s consent will be sought and obtained for any processing or transfer of Participant’s data for any purpose other than as described in this Agreement and Grant Notice. 

 

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13.8     French Legal Notices. Participant’s grant of the Award is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Directive as implemented in France.

 

(a)     Securities Disclaimer. Participant’s grant of the Award is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Directive as implemented in France.

 

(b)     Language Consent. In accepting the Grant Notice and this Agreement which provide for the terms and conditions of the Award, the Participant confirms that he or she has read and understood the documents relating to the Award (the Grant Notice and this Agreement), which were provided in the English language. the Participant accepts the terms of these documents accordingly.

 

(c)     Consentement Relatif à la Langue Utilisée. En acceptant cette attribution gratuite d’actions et ce contrat qui contient les termes et conditions de cette attribution gratuite d’actions, l’employé confirme ainsi avoir lu et compris les documents relatifs à cette attribution (le Contrat d’Attribution) qui lui ont été communiqués en langue anglaise. L’employé en accepte les termes en connaissance de cause.

 

13.9     Integrated Agreement. The Grant Notice and this Agreement, together with the Superseding Agreement, if any, shall constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter. To the extent contemplated herein or therein, the provisions of the Grant Notice and this Agreement shall survive any settlement of the Award and shall remain in full force and effect.

 

13.10     Applicable Law. This Agreement shall be governed by the laws of the State of Delaware (without regard to their choice-of-law provisions) except as required under mandatory provisions of local law.

 

13.11     Counterparts. The Grant Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

By signing the Grant Notice, Participant agrees to all of the terms and conditions of this Agreement and the Grant Notice.

 

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Exhibit 5.1

 

DLA Piper LLP (US)

2000 University Avenue

East Palo Alto, California 94303-2214

T 650.833.2000

F 650.833.2001

www.dlapiper.com

 

November 13, 2017

 

 

Determine, Inc.

615 West Carmel Drive, Suite 100

Carmel, IN 46032

 

RE: REGISTRATION STATEMENT ON FORM S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Determine, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a registration statement on Form S-8 (the “Registration Statement”) relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 220,000 shares of common stock, par value $0.0001 per share, of the Company, plus an indeterminate number of shares of stock that may be issued upon stock splits, stock dividends or similar transactions in accordance with Rule 416 of the Securities Act, (collectively, the “Shares”), which may be issued upon the exercise of the Company’s Non-Plan Stock Option Agreement, to be entered into on or about November 14, 2017, with Gérard Dahan (the “Option”) and upon the settlement of the Company’s Non-Plan Restricted Stock Units Agreement, to be entered into on or about November 14, 2017, with Gérard Dahan (the “RSUs”).

 

In connection with the foregoing, we have reviewed the Company’s Certificate of Incorporation, Amended and Restated Bylaws and such other charter documents and have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies.

 

Based on such examination, we are of the opinion that (i) the Shares have been duly and validly authorized and reserved for issuance, and (ii) the Shares, when issued upon exercise of the Option against payment therefor in accordance with the terms and conditions of the Option, and when issued upon settlement of the RSUs in accordance with the terms and conditions of the RSUs, will be validly issued, fully paid and nonassessable.

 

We express no opinion as to any matter other than as expressly set forth above, and no opinion, other than the opinion given herein, may be inferred or implied herefrom. We undertake no, and hereby disclaim, any obligation to advise the Company or anyone else of any change in any matter set forth herein.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, as originally filed or as subsequently amended. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

 

 

Very truly yours,

/s/ DLA Piper LLP (US)

 

Exhibit 23.1

 

 

 

Consent of Registered Public Accounting Firm

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8, and in the Registration Statements (Form S-3 Nos. 333-220631, 333-207910, 333-207841, 333-203355, 333-202579, 333-198148, 333-198149, 333-194246 and 333-189855 and Form S-8 Nos. 333-220573, 333-207912, 333-207911, 333-200709, 333-200708, 333-160486, 333-151686, 333-148041, 333-126306, 333-122708, 333-116449, 333-103622, 333-64246, 333-56576, and 333-32666) of our report dated June 12, 2017 with respect to the consolidated financial statements of Determine, Inc., included in the Annual Report on Form 10-K for the two-year period ended March 31, 2017.

 

 

 

/s/ Armanino LLP

San Francisco, California

November 13, 2017

 

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SEC Filings