EXHIBIT 10.05
UNICA CORPORATION
STOCK OPTION AGREEMENT
1. Grant of Option. Unica Corporation, a Massachusetts corporation (the
"Company"), hereby grants to _______________ (the "Optionee"), an
option, pursuant to the Company's Amended and Restated 1993 Stock
Option Plan (the "Plan"), to purchase an aggregate of __________ shares
of Common Stock, par value $.01 per share ("Common Stock"), of the
Company at a price of $_____ per share, purchasable as set forth in and
subject to the terms and conditions of this Agreement and the Plan.
2. Exercise of Option and Provisions for Termination.
a) Vesting Schedule. Except as otherwise provided in this
Agreement, this option may be exercised prior to the _____
anniversary date of the date of grant (hereinafter the
"Expiration Date"), on a cumulative basis as described below,
in installments as to not more than the number of shares and
during the respective installment periods set forth below:
Total Number of Shares
Exercise Period Exercisable
--------------- -----------
The right of exercise shall be cumulative so that if the
option is not exercised to the maximum extent permissible
during any exercise period it shall be exercisable, in whole
or in part, with respect to all shares not so purchased, at
any time prior to the Expiration Date or the earlier
termination of this option. This option may not be exercised
at any time after the Expiration Date.
b) Exercise Procedure. Subject to the conditions set forth in the
Agreement, this option shall be exercised by the Optionee's
delivery of written notice of exercise to the Treasurer of the
Company, specifying the number of shares to be purchased and
the purchase price to be paid therefore and accompanied by
payment in full in accordance with Section 3. Such exercise
shall be effective upon receipt by the Treasurer of the
Company of such written notice together with the required
payment. The Optionee may purchase less than the number of
shares covered hereby, provided that no partial exercise of
this option may be for any fractional share. In connection
with any such exercise, the Company may require Optionee to
make an election pursuant to Section 83(b) of the Internal
Revenue Code.
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c) Continuous Service Required. Except as otherwise provided in
this Section 2, this option may not be exercised unless ninety
(90) days prior to exercising this option, the Optionee was
and has been at all times since that date of grant of this
option, a consultant, director, adviser or employee of the
Company.
d) Exercise Period Upon Death or Disability. If the Optionee dies
or becomes disabled (within the meaning of Section 22(e)(3) of
the Code) prior to the Expiration Date, while he or she is a
consultant, adviser, director and/or employee of the Company
this option shall be exercisable, within the period of one
year following the date of death or disability of the Optionee
(but in no event after the Expiration Date) by the Optionee or
by the person to whom this option is transferred by will or
the laws of descent and distribution, provided that this
option shall be exercisable by the Optionee only to the extent
it was exercisable on the date of his or her death or
disability. Except as otherwise indicated by the context, the
term "Optionee", as used in this option, shall be deemed to
include the estate of the Optionee, or any person who acquires
the right to exercise this option by bequest or inheritance or
otherwise by reason of the death of the Optionee.
3. Payment of Purchase Price.
a) Method of Payment. Payment of the purchase price for shares
purchased upon exercise of this option shall be made by
delivery to the Company of cash or a check to the order of the
Company in an amount equal to the purchase price of such
shares, or, if approved by Company in its sole discretion, by
delivery to the Company of shares of Common Stock of the
Company then owned by the Optionee having a fair market value
equal in amount to the purchase price of such shares, or by
any combination of such methods of payment.
b) Valuation of Shares Tendered in Payment of Purchase Price. For
the purposes hereof, the fair market value of any share of the
Company's Common Stock which may be delivered to the Company
in exercise of this option shall be determined in good faith
by the Board of Directors of the Company. The Company shall
promptly notify the Optionee of the Board's determination of
fair market value and the Optionee shall notify the Company
within ten (10) days whether he accepts such valuation, in
which case such valuation shall be the "Fair Market Value"
hereunder, or chooses to invoke the appraisal process set
forth in this Section 3(b). During the ten (10) day period
following the Optionee's notice, each of the Company and the
Optionee shall choose an appraiser and the two appraisers
shall select a third appraiser, or if they are unable to agree
on a third appraiser, then the appraisers shall request the
American Arbitration Association to appoint a qualified
appraiser, and the appointment by the American Arbitration
Association shall be binding on the parties. All appraisers
selected hereunder shall be disinterested parties who are
experienced in the appraisal of closely held businesses and
businesses engaged in activities similar to those conducted by
the
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Company. The appraisers shall value the Company as a going
concern. The appraisers shall be directed to issue a written
report describing the method of valuation in reasonable
detail, and to produce such valuation in thirty (30) days from
the date on which he or she obtains from the Company what he
or she deems to be sufficient data from which to make the
appraisal, but in no event later than forty-five (45) days
after the appointment of the appraisers, unless a longer
period is agreed to in writing by the Company and the
Optionee. The average of the two closest appraised values
shall be the "Fair Market Value" per share which shall be
conclusive and binding on the parties. The costs of the
appraisal shall be borne equally by the parties unless the
Company's initial determination of fair market value is less
than the appraised fair market value by ten (10%) percent or
more, in which case, the Company shall bear the costs of the
appraisal.
c) Delivery of Shares Tendered in Payment of Purchase Price. If
the Company permits the Optionee to exercise options by
delivery of shares of Common Stock of the Company, the
certificate or certificates representing the shares of Common
Stock of the Company to be delivered shall be duly executed in
blank by the Optionee or shall be accompanied by a stock power
duly executed in blank suitable for purposes of transferring
such shares to the Company. Fractional shares of Common Stock
of the Company will not be accepted in payment of the purchase
price of shares acquired upon exercise of this option.
4. Delivery of Shares. The Company shall, upon payment of the option price
for the number of shares purchased and paid for, make prompt delivery
of such shares to the Optionee, provided that if any law or regulation
requires the Company to take any action with respect to such shares
before the issuance thereof, then the date of delivery of such shares
shall be extended for the period necessary to complete such action. No
shares shall be issued and delivered upon the exercise of any option
unless and until, in the opinion of counsel for the Company, any
applicable registration requirements of the Securities Act of 1933, any
applicable listing requirements of any national securities exchange on
which stock of the same class is then listed, and any other
requirements of law or of any regulatory bodies having jurisdiction
over such issuance and delivery, shall have been fully complied with.
5. Non-transferability of Option. Except as provided in paragraph (d) of
section 2, this option is personal and no rights granted hereunder may
be transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) nor shall any such rights be subject
to execution, attachment or similar process.
6. No Special Rights. Nothing contained in the Plan or this option shall
be construed or deemed by any person under any circumstances to bind
the Company to continue its relationship with the Optionee for the
period within which this option may be exercised.
7. Rights as a Stockholder. The Optionee shall have no rights as a
stockholder with respect to any shares which may be purchased by
exercise of this option unless and until such
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option is properly exercised in accordance with section 2(b). Except as
otherwise expressly provided in the Plan, no adjustment shall be made
for dividends or other rights until such option is properly exercised.
8. Stockholders Agreement. The Optionee agrees that upon the exercise of
this option, the Optionee will enter into a certain Stockholders
Agreement dated as of November 24, 1999 by and among the Company and
the other parties named therein, as the same may be amended (the
"Stockholders Agreement"), by executing a Joinder Agreement in
substantially the form attached thereto. Notwithstanding anything to
the contrary, the rights of the Company set forth under Section 9 of
this Agreement shall take precedence over any rights set forth in
Section 2 of the Stockholders Agreement. A copy of the Stockholders
Agreement will be provided to the Optionee at the time this option is
exercised or, at the request of the Optionee, prior to such exercise.
9. Restrictions on Transfer. The Optionee or his respective agent,
representative, executor, administrator or other legal representative
shall not Transfer any of the shares of Common Stock of the Company
resulting from the exercise of this option ("Shares"), except as
specifically provided in this Section 9. These restrictions shall apply
to any new, additional or different securities the Optionee may become
entitled to receive with respect to such Shares by virtue of a stock
split or stock dividend or any other change in the corporate or capital
structure of the Company. For purposes of this Agreement, "Transfer"
shall mean any voluntary or involuntary disposition including but not
limited to any sale, exchange, assignment, pledge or grant of a
security interest.
a) Company's Right of First Refusal. If at any time during the
period when the Optionee is serving as a consultant, adviser,
director or an employee of the Company desires to sell any of
the Shares pursuant to a bona fide third party offer, then the
Optionee shall first offer those Shares to the Company by
delivering written notice to the Treasurer of the Company,
informing the Company of his intent to sell, which notice
shall be accompanied by a copy of the offer received and the
name and address of the offeror. The Company shall have the
right to purchase any or all of such Shares at the lesser of
the price per share contained in such third party offer or the
Fair Market Value per share. In the event that the Company has
not exercised its purchase option within thirty (30) days
after its receipt of the Optionee's notice of intent to sell
by sending written notice of its intention to purchase some or
all of such Shares to the Optionee, then the Optionee may sell
such Shares to such third party, provided, however, that such
sale may be made only if it is made strictly in accordance
with the terms of the bona fide third party offer and further
provided that it is completed within thirty (30) days after
the expiration of the Company's purchase option. If such sale
is not so completed in accordance with the terms of the
preceding sentence, then the Shares shall again become subject
to all of the terms of this paragraph. As a condition
precedent to the validity and completion of any such sale to a
third party, the purchaser shall be required to execute a
stockholders agreement containing such restrictions on
transfer and required resale provisions as are
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contained in this Section 9, including the repurchase option
in favor of the Company.
b) Company's Right of Repurchase.
(i) Right of Repurchase. The Company shall have the
assignable right (the "Repurchase Right") to
repurchase all of the Shares held by the Optionee (or
his legal representative), upon the occurrence of any
of the events specified in Section 9(b)(ii) below
(the "Repurchase Event"). The Repurchase Right may be
exercised by the Company for a period of ninety (90)
days after the date the Company receives notice of or
otherwise becomes aware of such event (the
"Repurchase Period") at a price per share equal to
(i) in the case of an event specified in Section
9(b)(ii)(A) or (B) below, the greater of the Fair
Market Value and the average purchase price paid for
such Shares by the Optionee, and (ii) in the case of
an event specified in Section 9(b)(ii)(C), the
greater of fifty (50%) percent of the Fair Market
Value and the average purchase price paid for such
Shares by the Optionee.
(ii) Company's Right to Exercise Repurchase Right. The
Company or its assignee shall have the Repurchase
Right in the event that any of the following events
shall occur:
(A) The Optionee is or becomes
Financially Impaired (as defined in
Section 9(d) hereof);
(B) Within one (1) year after the
Optionee ceases to serve the Company
in the capacity of a consultant,
advisor, director or employee, the
Optionee provides such services to
any entity which competes directly
with the business being conducted by
the Company at the time the Optionee
ceases providing such services to
the Company; or
(C) The termination of the Optionee with
respect to his service to the
Company as a consultant, adviser,
director or employee, as the case
may be, for Cause, (as defined in
Section 9(e) hereof).
c) Determination of Fair Market Value. At the time the Company
elects to exercise its right to purchase shares, the Company
shall promptly notify the Optionee of the Board's
determination of fair market value. The Optionee may then
choose to invoke the additional arbitration and notice
provisions as set forth in Section 3(b) contained herein. In
the case of any Shares purchased by the Optionee (or his legal
representative) pursuant to Section 2(d) hereof during the
relevant one (1) year period, the rights granted to the
Company hereunder shall, with respect to
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such Shares, run for the 180 day period beginning on the date
such Shares are purchased.
d) Definition of Financially Impaired. "Financially Impaired"
means (i) the filing of a voluntary or involuntary proceeding
in bankruptcy or receivership in a court of competent
jurisdiction or appointment of a trustee or receiver as a
result of a proceeding in a court of competent jurisdiction
and the continuance of such proceeding for a period of ninety
(90) days without dismissal, or (ii) the entry into any
arrangement, composition or reorganization for the benefit of
creditors.
e) Definition of Cause. "Cause" means (i) the Optionee's failure
to actively participate in the normal operations of the
Company's advisory board if the Optionee is a member thereof,
and/or failure to perform in any material respect in
accordance with any material provision of any consulting,
advising or employment agreement entered into between the
Optionee and the Company, which remains uncured to the
reasonable satisfaction of the Company within twenty (20) days
after the Company's delivery to the Optionee of written notice
of such failure, setting forth the details with reasonable
specificity, (ii) the Optionee's breach of any of the material
terms or conditions contained in any confidentiality or
noncompetition agreement entered into for the benefit of the
Company, (iii) the Optionee's gross dereliction of duty, which
remains uncured to the reasonable satisfaction of the Company
within twenty (20) days after the Company's delivery to the
Optionee of written notice of such dereliction, setting forth
the details with reasonable specificity or (iv) the Optionee's
commission of intentional misconduct or a knowing violation of
law if such act in either event results in material injury to
the Company. A termination of the Optionee's relationship with
the Company as a consultant, advisor, director or employee
shall be "without Cause" as follows: (i) if, at any time, the
Company terminates the Optionee's services as a consultant,
advisor, director or employee for any reason other than those
specified in the definition of "Cause" above, or (ii) if the
Optionee resigned his duties as a consultant, advisor,
director or employee, because the Company requires the
Optionee to relocate more than 100 miles from the office from
which the Optionee is required to perform the majority of
his/her employment responsibilities immediately prior to
his/her resignation, or (iii) the Optionee's resignation.
f) Payment for Shares. The payment for Shares purchased hereunder
by the Company from the Optionee shall be made either in cash
or by a promissory note, in a form reasonably acceptable to
the Optionee, providing for payment over a period of not
greater than five years and containing an interest rate equal
to the Base Rate charged by BankBoston N.A. Any purchase of
Shares by the Company shall take place at a "Closing" to be
held as soon as practicable, but no later than thirty (30)
days after the date the Company notifies the Optionee that it
is exercising its right under paragraph (a) or (b) above, as
the case may be. At the Closing, the Optionee (or his legal
representative) shall deliver to the Company
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certificates for the Shares to be purchased, duly endorsed in
blank and the Company shall make payment for such Shares as
provided above.
g) Legend. All Shares shall be endorsed with the following legend
at the time of issuance:
"This certificate and the shares represented hereby are
subject to restrictions on transfer as set forth in a certain
Stock Option Agreement. No sale, transfer, assignment or other
disposition of this certificate or the shares represented
hereby shall be valid unless made in accordance with the terms
and conditions of such Agreement, a copy of which is on file
and is available for examination at the principal office of
the Company."
h) Expiration of Restrictions on Transfer. The restrictions
contained in this Section 9 shall terminate at the time of
either (i) a distribution to the public of shares of Common
Stock of the Company pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended,
or any successor statute in an amount exceeding $2 million
dollars, (ii) a vote of the stockholders of the Company
approving the transfer or sale of all, or substantially all,
of the assets of the Company to another entity or a merger or
consolidation of the Company with another entity where such
entity is the surviving entity or (iii) the transfer of more
than 50% of the outstanding voting stock of the Company in a
single transaction or related series of transactions.
10. Recapitalization. In the event that the outstanding shares of Common
Stock of the Company are changed into or exchanged for a different
number or kind of shares or other securities of the Company by reason
of any recapitalization, reclassification, stock split, stock dividend,
combination or subdivision, appropriate adjustment shall be made in the
number and kind of shares to which this option shall be exercisable.
Such adjustment to this option shall be made without change in the
total price applicable to the unexercised portion of this option, and a
corresponding adjustment in the option price per share shall be made.
11. Reorganization. In case the Company is merged or consolidated with
another corporation and the Company is not the surviving corporation
(other than any merger or consolidation in which the holders of the
capital stock of the Company immediately prior to such transaction
entitled to vote for the election of directors hold a majority of the
capital stock entitled to vote for the election of directors of the
surviving or resulting corporation or other entity), or in case all or
substantially all of the assets or more than fifty percent (50%) of the
outstanding voting stock of the Company is acquired by any other
corporation, person or entity, or in case of a liquidation of the
Company (each a "Reorganization Event"), then, prior to the Expiration
Date or termination of this option, and within twelve (12) months
following such Reorganization Event, if the Optionee is terminated
without Cause, as defined in Section 9(e), or the Optionee resigns
his/her position for Good Reason, as defined in this Section 11 below,
then all installments of
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this option set forth in Section 2 which would have become vested and
exercisable within the twelve (12) months following such Reorganization
Event shall become immediately vested and exercisable. For the purposes
of this Section 11 only, "Good Reason" shall mean (i) a requirement of
the Optionee to relocate more than 100 miles from the office from which
the Optionee is required to perform the majority of his/her employment
responsibilities immediately prior to the Reorganization Event, or (ii)
a reduction in base salary (exclusive of bonuses and/or commissions,
vacation pay, leave pay, 401k contributions, stock options, insurance
benefits, fringe benefits or any other employee benefit).
12. Withholding Taxes. The Company's obligation to deliver Shares shall be
subject to the Optionee's satisfaction of all applicable contractual or
legal tax obligations, including without limitation, federal, state and
local income and employment tax withholding requirements.
13. Investment Representations.
The Optionee represents, warrants and covenants that:
a) Any Shares purchased hereunder shall be acquired for the
Optionee's account for investment only, and not with a view
to, or for sale in connection with, any distribution of the
shares in violation of any laws or regulations, including but
not limited to the Securities Act of 1933 (the "Securities
Act"), or any rule or regulation under the Securities Act.
b) The Optionee has had such opportunity as he or she has deemed
adequate to obtain from representatives of the Company such
information as is necessary to permit the Optionee to evaluate
the merits and risks of his or her investment in the Company.
c) The Optionee is able to bear the economic risk of holding the
Shares for any required holding periods.
14. Miscellaneous.
a) Except as provided herein, this option may not be amended or
otherwise modified unless evidenced in writing and signed by
the Company and the Optionee.
b) Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally
or sent by Federal Express or similar overnight courier or by
registered or certified mail, postage prepaid, addressed in
any event to the parties at their respective addresses set
forth beneath their names below, or to such other address of
which the parties have given notice in accordance with this
Section 14(b). Such notices or other communications shall be
deemed received (i) on the date delivered, if delivered
personally, (ii) three (3)
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business days after being deposited with the U.S. Post Office,
if sent by registered or certified mail, unless the receipt
for delivery states a different date or (iii) on the next
business day, if sent by Federal Express or similar overnight
courier, unless the receipt for delivery states a different
date.
c) This option shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, USA.
d) By acceptance of this option the Optionee agrees to the terms
and conditions hereof.
e) Unica certifies and represents that the Amended and Restated
1993 Stock Option Plan dated May 8, 1997, as amended, is the
current and effective version of the Stock Option Plan.
Date of Grant: UNICA CORPORATION
By: ______________________________
Accepted and Agreed: Title:
Address:
________________________________
Optionee
Address
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