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Exhibit 10.17
MOBIUS MANAGEMENT SYSTEMS, INC.
1996 STOCK INCENTIVE PLAN
GRANTEE STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (the "Agreement"), dated as of December 30, 1997,
between MOBIUS MANAGEMENT SYSTEMS, INC. (the "Company"), a Delaware corporation,
and Xxxxxx Xxxxxxxxxx, (the "Grantee").
Pursuant to the terms of the Company's 1996 Stock Incentive Plan (the
"Plan") and the Stock Option Agreement dated November 6, 1996 between the
Grantee and the Company (the "Option Agreement"), Grantee has been granted a
stock option (the "Option") to purchase 4,000 shares of Class A Non-Voting
common stock of the Company (the "Shares") at a price per share of $125.00 (the
"Exercise Price"). Grantee has informed the Company that he/she wishes to
exercise such option for the purchase of 800 Shares pursuant to the terms of the
Plan and the Option Agreement.
Section 7 of the Option Agreement requires the Grantee to enter into this
Agreement prior to, and as a condition of, Grantee's exercise of the Option for
the purchase of the Shares.
In consideration of the foregoing and the exercise of the Option, and such
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Grantee represents, covenants and agrees as follows:
1. Confirmation of Option Agreement. Grantee hereby confirms and reaffirms
as of the date hereof the representations, warranties, covenants and agreements
set forth in the Option Agreement. Without limiting the foregoing, Optionee
hereby confirms and reaffirms as of the date hereof the representations and
understandings set forth in sections 6.1, 6.2 and 6.3 of the Option Agreement.
2. Transfer Restrictions.
2.1 Grantee shall not, so long as this Agreement is in effect,
directly or indirectly, sell, pledge, give, bequeath, transfer, assign or in any
other way whatsoever encumber or dispose of (hereinafter collectively called
"transfer") any of the Shares (or any interest therein), or any stock
certificate or certificates representing the Shares, except as permitted by this
Agreement or as may be consented to in writing by the Company.
2.2 Notwithstanding anything to the contrary contained in this
Agreement, Grantee is under no restrictions as to the transfer of Shares, during
Grantee's lifetime, to Grantee's Permitted Transferees (as defined herein),
provided that each such Permitted Transferee shall first (1) execute a
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written consent to be bound by all the provisions of this Agreement and (ii)
give a duplicate original of such consent to the Company. The Permitted
Transferees shall consist of Grantee's spouse and adult lineal descendants, the
adult spouses of such lineal descendants, trusts for the benefit of Grantee's
minor or adult lineal descendants, or trusts of which Grantee is the trustee or
sole beneficiary. In the event of any transfer by the Grantee to a Permitted
Transferee of all or any part of the Shares (or in the event of any subsequent
transfer by any such Permitted Transferee of such Shares), such Permitted
Transferees shall receive and hold said Shares subject to the terms of this
Agreement and the rights and obligations hereunder of the Grantee as though said
shares were still owned by the Grantee. There shall be no further transfer of
such Shares by a Permitted Transferee except between and among such Permitted
Transferee, the Grantee and the other Permitted Transferees of the Grantee, or
except as permitted by this Agreement.
2.3 Following the termination of this Agreement pursuant to an
underwritten public offering, as provided for in Section 6, grantee shall not,
directly or indirectly, for such period as the underwriters in that offering
reasonably request, except with the prior consent of the underwriters: (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of or otherwise dispose of or transfer any Shares (which term shall
include shares of the Company's common stock into which the Shares may have been
converted) or any securities convertible into or exchangeable or exercisable for
Shares, whether now owned or hereafter acquired or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequences of ownership of the Shares,
whether any such swap or transaction is to be settled by delivery of the Shares
or other securities, in cash or otherwise. This Section 2.3 shall survive the
termination of this Agreement.
3. Right of First Refusal.
3.1 If the Grantee desires to sell all or any part of the Shares and
the Grantee shall have received a bona fide arm's length written offer, which is
unconditional and irrevocable except as hereinafter provided (hereinafter called
the "Bona Fide Offer"), for the purchase of such shares from a party who is not
a Permitted Transferee of the Grantee (hereinafter called the "Outside Party"),
the Grantee shall give 45 days notice in writing (hereinafter called the "Option
Notice") to the Company setting forth such desire to sell such Shares, which
notice shall be accompanied by a photocopy of the original executed Bona Fide
Offer, shall set forth at least the name and address of the Outside Party, the
number of Shares being sold and the price and terms of such offer and shall be
accompanied by written evidence proving to the satisfaction of
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the Board of Directors of the Company that the Outside Party is capable of
performing and has committed the funds necessary to perform the Bona Fide Offer
in accordance with its terms. On or before the 45th day after the day on which
the Option Notice was given, the Company may send a written counter-notice to
Grantee whereunder the Company shall elect one of the following choices:
(a) the Company consents to the sale by the Grantee to the
Outside Party, in which event, such sale may proceed pursuant to the terms of
the Bona Fide Offer; or
(b) that the Company elects to purchase all of the shares of
the Grantee for which the Bona Fide Offer was made, at the same price per share
and upon the same terms and conditions as contained in the Bona Fide Offer, in
which event the Company shall be obligated to purchase and the Grantee shall be
obligated to sell such shares before the 30th day after the day on which the
counternotice was given at the same price per share and upon the same terms and
conditions as contained in the Bona Fide Offer, including, among other things,
time and manner of payment.
If the Company fails to give a timely counter-notice electing either choice (a)
or (b), the Company shall be deemed to have elected choice (a) and to have
consented to the sale by the Grantee to the Outside Party.
4. Right of Repurchase. If at anytime during the term of this Agreement
the Grantee no longer is employed by the Company (other than by reason of death
or disability):
4.1 If Grantee has been terminated by the Company for cause, the
Company may, at its option exercisable within 180 days of such termination,
repurchase all the Shares from the Grantee at a price per share equal to the
Exercise Price. Company shall provide Grantee with written notice within such
180 day period of its election to so repurchase the Shares, and shall repurchase
such shares within 30 days of the date of such notice.
4.2 If Grantee is no longer employed by the Company (other than by
reason of termination for cause), the Company may, at its option exercisable
within 180 days of such termination of employment, repurchase all the Shares
from the Grantee at a price per share equal to the fair market value of such
share at the time of such repurchase. Company shall provide the Grantee with
written notice within such 180 day period of its election to so repurchase the
Shares, and shall repurchase such shares within 30 days of the date of such
notice.
5. Legend on Certificates. The following statement shall be inscribed on
all certificates representing the Shares so long as this Agreement is in effect:
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"The common stock represented by this certificate is subject to a certain
Shareholders Agreement dated December 30,1997, by and among the Company and
Xxxxxx Xxxxxxxxxx, as amended, a copy of which is on file at the principal
office of the Company, and any sale, pledge, gift, bequest, transfer,
assignment, encumbrance or other disposition of this certificate in violation of
the Shareholders Agreement shall be invalid."
SECTION 6. Term. This Agreement (other than Section 2.3) shall terminate
upon the consummation by the Company of an underwritten public offering of at
least $30,000,000 of common stock, where at least $10,000,000 of the proceeds
from such offering are received by the Company.
SECTION 7. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and the successors and assigns of
the Company and, to the extent consistent with this Agreement, the heirs and
personal representatives of the Grantee.
SECTION 8. Governing Law. This Agreement shall be interpreted, construed
and administered in accordance with the laws of the State of New York as they
apply to contracts made, delivered and performed entirely within such state.
SECTION 9. Notices. Any notice to be given to the Company hereunder shall
be in writing and shall be addressed to Mobius Management Systems, Inc., Xxx
Xxxxxx Xxxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000, or at such other address as the
Company may hereafter designate to the Optionee by notice as provided in this
Section 9. Any notice to be given to the Optionee hereunder shall be addressed
to the Optionee at the address set forth beneath his signature hereto, or at
such other address as the Optionee may hereafter designate to the Company by
notice as provided herein. A notice shall be deemed to have been duly given when
personally delivered or, if mailed by registered or certified mail to the party
entitled to receive it, five days after the date the notice was so mailed.
THE REST OF THIS PAGE IS BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
MOBIUS MANAGEMENT SYSTEMS, INC.
/s/ E. Xxxxx Xxxxxx
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ATTEST: __________ Name: E. Xxxxx Xxxxxx
Title: Chief Financial Officer
GRANTEE
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
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