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EXHIBIT 10.13
Nonqualified Stock Option Agreement
STOCK OPTION AGREEMENT
Agreement (the "Option Agreement") dated this fourth day of October,
2000 (the "Date of Grant"), between Infinium Software, Inc., a Massachusetts
corporation (the "Company"), and Xxxx X. Xxxxx (the "Participant"), an employee
of the Company with a residence address at 00 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000.
1. GRANT OF OPTION. The Company hereby grants to the Participant a
non-qualified stock option to purchase, in whole or in part and from time to
time, on the terms herein provided, a total of 200,000 shares of common stock of
the Company ("Common Stock") at $2.25 per share. This option is granted pursuant
to and subject to the provisions of the Company's 1995 Stock Plan, as amended
(the "Plan") attached hereto as Exhibit A. Capitalized terms used herein but not
defined herein have the meanings given them in the Plan.
2. TIME LIMITS. Except as otherwise provided in this Section, in
Section 6 hereof (relating to the death of the Participant), in Section 7 hereof
(relating to the disability of the Participant) and in Section 8 hereof
(relating to other termination of employment of the Participant), and subject to
the provisions of subparagraph C of paragraph 8 of the Plan (relating to the
minimum number of shares exercisable at any one time), this option shall be
exercisable as follows:
A. 50,000 of the shares shall vest on December 22, 2000, and
B. One-eighteenth (1/18) of the remaining shares shall vest on a
monthly pro-rata basis during the period from January 22, 2001
through June 22, 2002.
C. The vesting of the shares shall be accelerated if (i) the Board
of Directors of the Company determines, in good faith, that the
Participant has successfully completed his project for the
Company prior to June 22, 2002, (ii) the Participant is
terminated in connection with a "Change in Control" " (as defined
in Exhibit B to this Agreement), (iii) the Participant is
terminated by the Company, not for "cause", in connection with
the hiring of a new CEO or President for the Company, (iv)
following a Change in Control, the Participant and the
Compensation Committee of the Board of Directors (excluding new
directors from the Change in Control) agree that there is a
significant change in the Participant's responsibilities,
including a significant change in the senior managers or officers
reporting to him.
This option may be exercised to any extent until June 22, 2003.
3. EXERCISE OF OPTION. This option (or any part or installment
hereof) shall be exercised by giving written notice to the Company at its
principal office address, or to such transfer agent as the Company shall
designate. Such notice shall identify the option agreement under which the
option is being exercised and specify the number of shares as to which the
option is being exercised, accompanied by full payment of the purchase price
therefor.
4. PAYMENT FOR AND DELIVERY OF STOCK. The shares of Common Stock
purchased upon any exercise of this option shall be paid for in full at the time
of such exercise. The option price may be paid in United States dollars in cash
or by check.
5. NON-TRANSFERABILITY OF OPTION. This option may not be transferred
by the Participant otherwise than by will, by the laws of descent and
distribution or, in the case of Non-Qualified Options only, pursuant to a valid
domestic relations order. Except as set forth in the previous sentence, during
the lifetime of the Participant this option may be exercised only by him or her.
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6. DEATH. If the Participant ceases to be employed by the Company
and all Related Corporations by reason of his or her death, then, effective on
such date, all of the Participant's unvested stock options in the Company will
become immediately vested and this option may be exercised by the estate,
personal representative or beneficiary who has acquired the stock options by
will or by the laws of descent and distribution, until the earlier of (i) the
specified expiration date of the stock options or (ii) 180 days from the date of
the Participant's death.
7. DISABILITY. If the Participant ceases to be employed by the
Company and all Related Corporations by reason of his or her disability, the
Participant shall have the right to exercise any ISO held by him or her
hereunder on the date of termination of employment, for the number of shares for
which he or she could have exercised it on that date, until the earlier of (i)
the specified expiration date of the ISO or (ii) 180 days from the date of the
termination of the Participant's employment. For the purposes of this Agreement,
the term "disability" shall mean "permanent and total disability" as defined in
Section 22(e) of the Code.
8. TERMINATION OF EMPLOYMENT. (a) If the Participant ceases to be
employed by the Company and all Related Corporations other than by reason of
death, disability as defined above or cause, no further installments of his or
her stock options shall become exercisable, and his or her options shall
terminate on the earlier of (i) ninety (90) days after the date of termination
of employment or (ii) June 22, 2003, except as expressly provided below.
(b) If the Participant is terminated for cause by the Company, this
option may be exercised following such termination of employment only to the
extent, if any, approved by the Committee.
(c) If the Participant's options shall have been accelerated in
accordance with the third bullet of Section 2 above, then the Participant's
options shall be exercisable until, and his options shall terminate on June 22,
2003.
Transfer from the employ of the Company to the employ of a Related Corporation,
from the employ of a Related Corporation to the employ of the Company, or from
the employ of one Related Corporation to the employ of another Related
Corporation shall not be deemed a termination of employment for purposes of this
option.
9. CHANGES IN STOCK. In the event of a stock dividend, stock split
or other change in corporate structure or capitalization affecting the Common
Stock, the Committee shall make appropriate adjustments in (i) the number and
kind of shares of stock remaining subject to the option at the time of such
change and (ii) the option price. The Committee's determination shall be binding
on all persons concerned. If the Company is to be consolidated with or acquired
by another entity in a merger or other reorganization in which the holders of
the outstanding voting stock of the Company immediately preceding the
consummation of such event, shall, immediately following such event, hold, as a
group, less than a majority of the voting securities of the surviving or
successor entity, or in the event of a sale of all or substantially all of the
Company's assets or otherwise (each, an "Acquisition"), the Committee or the
board of directors of an entity assuming the obligations of the Company
hereunder (the "Successor Board"), shall, as to the option, either (i) make
appropriate provision for the continuation of the option by substituting on an
equitable basis for the shares then subject to the option either (a) the
consideration payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition, (b) shares of stock of the surviving or
successor corporation or (c) such other securities as the Successor Board deems
appropriate, the fair market value of which shall not materially exceed the fair
market value of the shares of Common Stock subject to the option immediately
preceding the Acquisition; or (ii) upon written notice to the Participant,
provided that the options shall be exercised, to the extent then exercisable or
to be exercisable as a result of the Acquisition, within a specified number of
days of the date of such notice, at the end of which period the option shall
terminate; or (iii) terminate the option in exchange for a cash payment equal to
the excess of the Fair Market Value of the shares subject to the option (to the
extent then exercisable or to be exercisable as a result of the Acquisition)
over the exercise price thereof.
10. RESERVATION OF SHARES. The Company shall at all times during the
term of the option granted hereby reserve and keep available such number of
shares of the Common Stock as will be sufficient to satisfy the requirements of
the option granted hereby.
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11. RESTRICTIONS ON DISPOSITION. All shares acquired by the
Participant pursuant to the option granted hereby shall be subject to all
restrictions set forth in the Company's by-laws and in any applicable agreements
between or among the Participant, other shareholders and/or the Company. In
addition, the Participant hereby agrees that all shares acquired pursuant to the
option granted hereby, regardless of when acquired, may not be pledged, sold,
assigned or in any other manner transferred, except with the prior written
consent of the Company (such consent being in the sole discretion of the
Company), and shall continue to be held by the Participant, or, in the case of
the Participant's death, by his executor or administrator or the person or
persons to whom the option or the shares acquired pursuant to the option
was/were transferred by will or the applicable laws of descent and distribution,
for a minimum period extending until the earlier to occur of (a) the end of the
six month period succeeding the completion of an initial public offering of
securities of the Company or (b) the end of the two year period succeeding the
later to occur of (i) the date of Participant's termination of employment with
the Company or any of its subsidiaries or affiliates or (ii) the date on which
such shares are acquired pursuant to this option.
12. NO RIGHT TO EMPLOYMENT. The grant of this option does not confer
upon the Participant any right to continued employment with the Company, nor
does it interfere in any way with the right of the Company to terminate the
employment of the Participant at any time.
13. COMMUNICATIONS. Any communication or notice required or permitted
to be given under this Agreement shall be delivered in hand, if to the Company,
to its Secretary at 00 Xxxxxxxxxxxxxx Xxx, Xxxxxxxxxxxx Xxxx, Xxxxxxx, XX 00000,
and, if to the Participant, at the address set forth on the first page of this
Agreement or such other address, in each case, as the addressee shall last have
furnished to the communicating party.
14. MISCELLANEOUS. This option granted hereunder shall be construed
under and governed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Infinium Software, Inc. has caused this Agreement
to be executed by its duly authorized officer and the Participant has hereunto
set his or her hand, both as of the Date of Grant set forth above.
INFINIUM SOFTWARE, INC. PARTICIPANT
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Xxxxxx X. Xxxxxxxxx
Print Name:
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EXHIBIT B
A "Change in Control" shall mean:
(1) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) 50% or more of either (x) the then-outstanding
shares of common stock of the Company (the "Outstanding
Company Common Stock") or (y) the combined voting power
of the then-outstanding securities of the Company
entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities");
PROVIDED, HOWEVER, that for purposes of this subsection
(i), the following acquisitions shall not constitute a
Change in Control Event: (A) any acquisition directly
from the Company (excluding an acquisition pursuant to
the exercise, conversion or exchange of any security
exercisable for, convertible into or exchangeable for
common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging
such security acquired such security directly from the
Company or an underwriter or agent of the Company), (B)
any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (C)
any acquisition by any corporation pursuant to a
Business Combination (as defined below) which complies
with clauses (x) and (y) of subsection (iii) of this
definition; or
(2) such time as the Continuing Directors (as defined
below) do not constitute a majority of the Board (or,
if applicable, the Board of Directors of a successor
corporation to the Company), where the term "Continuing
Director" means at any date a member of the Board (x)
who was a member of the Board on the date this
Severance Agreement was signed or (y) who was nominated
or elected subsequent to such date by at least a
majority of the directors who were Continuing Directors
at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at
least a majority of the directors who were Continuing
Directors at the time of such nomination or election;
PROVIDED, HOWEVER, that there shall be excluded from
this clause (y) any individual whose initial assumption
of office occurred as a result of an actual or
threatened election contest with respect to the
election or removal of directors or other actual or
threatened solicitation of proxies or consents, by or
on behalf of a person other than the Board; or
(3) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share
exchange involving the Company or a sale or other
disposition of all or substantially all of the assets
of the Company (a "Business Combination"), unless,
immediately following such Business Combination, each
of the following two conditions is satisfied: (x) all
or substantially all of the individuals and entities
who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
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more than 50% of the then-outstanding shares of common
stock and the combined voting power of the
then-outstanding securities entitled to vote generally
in the election of directors, respectively, of the
resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns
the Company or substantially all of the Company's
assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation
is referred to herein as the "Acquiring Corporation")
in substantially the same proportions as their
ownership of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, respectively,
immediately prior to such Business Combination and (y)
no Person (excluding the Acquiring Corporation or any
employee benefit plan (or related trust) maintained or
sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly,
50% or more of the then-outstanding shares of common
stock of the Acquiring Corporation, or of the combined
voting power of the then-outstanding securities of such
corporation entitled to vote generally in the election
of directors (except to the extent that such ownership
existed prior to the Business Combination).
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