EXHIBIT 10.2
Stock Option Agreement
Onyx Software Corporation
I. OPTION GRANT. ONYX SOFTWARE CORPORATION, a Washington corporation (the
"Company") hereby grants a nonqualified stock option to purchase a total
of 500,000 shares of Common Stock of the Company, par value $0.01 per
share, (the "Common Stock") as of April 4, 2001 (the "Grant Date") to
XXXXX XXXXX (the "Optionee"), subject in all respects to the terms and
provisions of this Stock Option Agreement (the "Option"). This Option
shall be governed by, and construed in accordance with, the laws of the
state of Washington without regard for principles of conflict of laws.
II. VESTING SCHEDULE. The Vesting Initiation Date shall be April 4, 2001.
This Option shall vest and become exercisable as to 25% of the total
number of shares of Common Stock covered by this Option on the one year
anniversary of the Vesting Initiation Date and an additional 2.0833% of
the shares covered by the Option shall vest each month thereafter, with
the result that the Option shall be fully vested and exercisable four
years after the Vesting Initiation Date. Notwithstanding the foregoing, if
Optionee's employment with the Company terminates in a Qualifying
Termination (as defined in the Employment Agreement by and between the
Company and Optionee entered into as of the 14th day of March, 2001 (the
"Employment Agreement")), this Option shall, immediately upon such
Qualifying Termination, become fully vested and become exercisable
pursuant to the terms of Subsection 12(d) of the Employment Agreement.
III. PRICE. The Option exercise price per share (the "Exercise Price") as
determined by the Board of Directors (the "Board") of the Company is
$3.03. The Exercise Price shall be paid by delivery of cash or, subject to
the discretion of the Board, by delivery of an approved equivalent to
cash.
IV. PURCHASE FOR INVESTMENT. This Option may not be exercised if the issuance
of shares of Common Stock pursuant to an exercise would constitute a
violation of any applicable federal or state securities or other law or
valid regulation. Any other provision of this Option notwithstanding, the
obligation of the Company to issue shares pursuant to an exercise of the
Option shall be subject to all applicable laws, rules and regulations and
such approval by any regulatory body as may be required. The Company
reserves the right to restrict, in whole or in part, the delivery of
shares prior to the satisfaction of all legal requirements relating to the
issuance of such shares, to their registration, qualification or listing
or to an exemption from registration, qualification or listing.
V. NON-ASSIGNABILITY. The Option may not be transferred or hypothecated in
any manner and shall only be exercisable by the Optionee or his legal
representative. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors, and assigns of the Optionee.
VI. EXERCISE.
A. This Option shall be exercisable, to the extent of the number of
shares purchasable by Optionee at the date of termination, only (a)
within one year after
such termination if the Optionee's termination is coincident with the
Optionee's death or Disability (as defined in the Employment
Agreement) or (b) within ninety days after the date that Optionee
ceases to be an employee, director, officer, consultant, agent,
advisor or independent contractor of the Company or a subsidiary if
termination of the Optionee's employment or services is for any reason
other than death, Disability, or a Qualifying Termination, but in no
event later than the remaining Term of the Option or (c) within one
hundred twenty (120) days after the date that Optionee ceases to be an
employee, director, officer, consultant, agent, advisor or independent
contractor of the Company or a subsidiary if termination of the
Optionee's employment or services results from a Qualifying
Termination, but in no event later than the remaining Term of the
Option. Notwithstanding the foregoing provisions of Subsection
V.I.A.(c) above, in the event that such options are not exercisable
within any portion of such 120 day period, by reason of applicable
securities laws, the rules of any stock exchange on which the shares
are listed, any agreement with an underwriter, or any agreement with
or policy of the Corporation, the 120-day period shall be
correspondingly extended, provided that in no event shall extension
continue later than the remaining Term of the Option. Any portion of
this Option exercisable at the time of the Optionee's death may be
exercised, to the extent of the number of shares purchasable by the
Optionee at the date of the Optionee's death, by the personal
representative of the Optionee's estate or the person(s) to whom the
Optionee's rights under the Option have passed by will or the
applicable laws of descent and distribution, at any time or from time
to time within one year after the date of death, but in no event later
than the remaining Term of the Option.
B. This Option may not be exercised more than ten (10) years from the
date hereof (the "Term"), and may be exercised during the Term only in
accordance with the terms and provisions set forth herein.
C. In the event that Optionee's employment terminates in a Qualifying
Termination within two years of a Corporate Transaction (as defined
below) involving the Company, this Option shall immediately accelerate
so as to become fully vested and exercisable. A "Corporate
Transaction" means any of the following events: (a) consummation of
any merger or consolidation of the Company in which the Company is not
the continuing or surviving corporation, or pursuant to which shares
of the Common Stock are converted into cash, securities or other
property, if following such merger or consolidation the holders of the
Company's outstanding voting securities immediately prior to such
merger or consolidation own less than a majority of the outstanding
voting securities of the surviving corporation; (b) consummation of
any sale, lease, exchange or other transfer in one transaction or a
series of related transactions of all or substantially all of the
Company's assets other than a transfer of the Company's assets to a
majority-owned subsidiary corporation of the Company; or (c) approval
by the holders of the Common Stock of any plan or proposal for the
liquidation or dissolution of the Company. Ownership of voting
securities shall take into account and shall include ownership as
determined by applying Rule 13d-3(d)(1)(i) (as in effect on the date
hereof) under the Securities and Exchange Act of 1934, as amended. The
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accelerated vesting of the Option pursuant to this Section VI(C) or
pursuant to the Employment Agreement shall not be adversely altered or
rendered null and void, without Optionee's express written consent,
even if such accelerated vesting would preclude a Corporate
Transaction or other transaction involving the Company from qualifying
for financial accounting treatment of such transaction as a pooling of
interests under APB Opinion No. 16.
D. This Option may be exercised for all or part of the shares eligible
for exercise by presenting a written notice (the "Notice") to the
Company that this Option is exercised in strict accordance with the
terms and provisions of this Option. The Company shall determine
whether or not the Notice complies with the terms and provisions of
this Option. Such Notice shall identify this Option, state the number
of shares as to which the Option is exercised and be signed by the
Optionee. Delivery of the cash or cash equivalent in payment for the
shares to be purchased pursuant to the exercise of this Option shall
accompany the Notice. The Letter of Investment, representations and
such other documentation required by Section IV hereof shall also
accompany the Notice. If the Optionee is deceased, the Notice shall be
signed, and if the Optionee is Disabled, it may be signed, by the
Optionee's legal representatives or beneficiaries, and in all
instances shall be accompanied by evidence satisfactory to the Company
and its transfer agent of the right of such person or persons to
exercise this Option.
E. The Optionee shall make arrangements satisfactory to the Company for
the satisfaction of any withholding tax obligations that arise in
connection with his Option. The Company shall not be required to issue
any shares of Common Stock until such obligations are satisfied.
VII. MARKET STANDOFF. In connection with any underwritten public offering by
the Company of its equity securities pursuant to an effective registration
statement filed under the Securities Act, Optionee shall not sell, make
any short sale of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or otherwise agree
to engage in any of the foregoing transactions with respect to, any shares
issued pursuant to this Option without the prior written consent of the
Company or its underwriters. Such limitations shall be in effect for such
period of time as may be requested by the Company or such underwriters and
agreed to by the Company's officers and directors with respect to their
shares; provided, however, that in no event shall such period exceed 180
days. Holders of shares issued pursuant to this Option shall be subject to
the market standoff provisions of this paragraph only if the other
officers and directors of the Company are also subject to similar
arrangements. In the event of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other
change affecting the outstanding Common Stock effected as a class without
the Company's receipt of consideration, then any new, substituted or
additional securities distributed with respect to the purchased shares
shall be immediately subject to the provisions of this Section VII., to
the same extent the purchased shares are at such time covered by such
provisions. In order to enforce the limitations of this Section VII., the
Company may impose stop-transfer instructions with respect to the
purchased shares until the end of the applicable standoff period.
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VIII. EFFECT OF CHANGE IN COMMON STOCK SUBJECT TO OPTION. If the outstanding
shares of Common Stock shall at any time be changed or exchanged by
declaration of a stock dividend, split-up, combination of shares, or
recapitalization, the number and kind of shares subject to this Option,
and the Exercise Price, shall be appropriately and equitably adjusted so
as to maintain the proportionate number of shares subject to this Option
and the Exercise Price in relation to the change in stock; provided,
however, that no adjustment shall be made by reason of the distribution of
subscription rights on outstanding stock.
IX. AMENDMENT OR ALTERATION. The Board may amend or alter this Option, except
that no amendment or alteration shall be made which would impair the
rights of the Optionee hereunder, without his consent, and, except
further, this Option shall be subject to the requirement that, if, at any
time the Board shall determine, in its discretion, that the listing,
registration or qualification of the stock issuable or transferable upon
exercise thereof upon any securities exchange or under any state or
federal law or the consent or approval of any governmental regulatory body
is necessary or desirable as a condition of, or in connection with, the
granting of this Option or the issue, transfer, or purchase of shares
hereunder, this Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent, or approval shall have
been effected or obtained free of any conditions not acceptable to the
Board.
X. OPTION NOT A SERVICE CONTRACT. This Option is not an employment contract
and nothing in this Option shall be construed as giving Optionee any right
to be retained in the employ of the Company or limit the Company's right
to terminate the employment or services of Optionee .
XI. NO RIGHTS AS A SHAREHOLDER. The Optionee, or a transferee of the
Optionee, shall have no rights as a shareholder with respect to any Common
Stock covered by the Option until such person becomes entitled to receive
such Common Stock by filing a Notice and paying the Exercise Price
pursuant to the terms of this Option.
ONYX SOFTWARE CORPORATION
By: /s/ Xxxxx Xxxx
-----------------------
Chief Executive Officer
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If the following acknowledgment and acceptance is not executed within ten (10)
days of the effective date of this Option, it shall lapse and be treated for all
purposes as if it were never granted.
The Optionee acknowledges and represents that he is familiar with and
understands the terms and provisions of this Option. The Optionee hereby
accepts this Option subject to all the terms and provisions contained herein.
The Optionee hereby agrees to accept as binding, conclusive, and final all
decisions and interpretations of the Board upon any questions arising under the
Option.
Dated: 4/7/01
WITNESS: OPTIONEE:
/s/ Xxxxx X. Xxxxx
-------------------------------- ---------------------------------------
Xxxxx Xxxxx
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