Exhibit d (4)
[Form of New Option Agreement Pursuant to 1999 Non-Qualified Stock Option Plan
for Key Employees]
FRONTSTEP, INC.
(FKA SYMIX SYSTEMS, INC.)
STOCK OPTION AGREEMENT
This Agreement, made and entered into as of ____________ by and between
Frontstep, Inc. (fka Symix Systems, Inc.), an Ohio corporation (sometimes
hereinafter called the "Company"), and _____________________________ (sometimes
hereinafter called the "Optionee"),
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has adopted the
Frontstep, Inc. (fka Symix Systems, Inc.) 1999 Non-Qualified Stock Option Plan
for Key Employees (sometimes hereinafter called the "Plan") and, pursuant to the
Plan, has appointed a Committee (sometimes hereinafter called the "Committee")
to administer the Plan; and
WHEREAS, pursuant to the Plan, the Committee has delegated to ▇▇▇▇▇▇▇▇
▇. ▇▇▇ ("▇▇▇") all of its authority with regard to selection for, participation
of, and the granting of options under the Plan to, persons not subject to
Section 16(a) and 16(b) of the Securities Exchange Act of 1934; and
WHEREAS, Fox has determined that an option to acquire Common Shares
under the Plan should be granted to the Optionee upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, the parties hereto make the following agreement, intending to
be legally bound hereby;
(1) GRANT OF OPTION. The Company hereby grants to the Optionee an
option (sometimes hereinafter called the "Option") to purchase ______ common
shares, no par value, of the Company (the "Common Shares").
(2) OPTION PRICE. The purchase price (sometimes hereinafter called the
"Option Price") to be paid by the Optionee to the Company upon the exercise of
the Option shall be _____________________ Dollars ($______) per Common Share.
(3) OPTION TERM AND CHANGE IN CONTROL.
(a) VESTING SCHEDULE.
The Optionee may exercise the Option, from time to time and
at any time, in accordance with the following vesting schedule and during the
period commencing on the date first above written and expiring at midnight on
the tenth (10th) anniversary of the date first above written (said period of
time sometimes hereinafter called the "Option Period"):
VESTING SCHEDULE
50% vested 100% vested
as of as of
--------------- ----------------
Total Number Number of Number of
of Shares Shares Shares
------------ --------- ---------
[Shares] [hlf1] [Shares]
Notwithstanding the foregoing, and subject to Paragraph 3(c) hereof, the Option
shall not vest with respect to any additional Common Shares on or after the date
on which the Optionee shall no longer be an employee of the Company for any
reason.
(b) CHANGE IN CONTROL.
(i) Anything contained in this Agreement or
elsewhere to the contrary notwithstanding, in the event of a Change in Control
(as defined below) of the Company, the Option granted hereunder shall become
fully exercisable as of the date of the Change in Control whether or not then
exercisable, subject to the limitation that any Option which has been
outstanding less than six months on the date of the Change in Control shall not
be afforded such treatment.
(ii) A "Change in Control" of the Company shall be
deemed to have occurred upon any one of the following events:
(A) the date any entity or person (including a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934),
other than a trustee or other fiduciary of securities held under an employee
benefit plan of the Company or any of its subsidiaries, becomes the beneficial
owner (within the meaning of Rule 16(a)(l) and/or Rule 16(a)(2) promulgated
under the Securities Exchange Act of 1934) of, or obtains voting control over,
any percentage of the outstanding Common Shares of the Company greater than or
equal to the percentage of outstanding common shares, no par value, of the
Company beneficially owned (as defined above) by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ on such date;
(B) the date the shareholders of the Company
approve a definitive agreement (1) to merge or consolidate the Company with or
into another corporation, in which the Company is not the continuing or
surviving corporation or pursuant to which any common shares, no par value, of
the Company would be converted into cash, securities or other property of
another corporation, other than a merger of the Company in which holders of
common shares, no par value, of the Company immediately prior to the merger have
the same proportionate ownership of common stock of the surviving corporation
immediately after the merger as such holders had in common shares, no par value,
of the Company immediately before the merger, or (2) to sell or otherwise
dispose of substantially all of the assets of the Company;
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(C) the date Fox tenders, or expresses his
intention to tender, to any person making a tender offer for common shares, no
par value, of the Company, all or any portion of the common shares, no par
value, of the Company beneficially owned by Fox;
(D) the date a change in a majority of the Board
of Directors of the Company occurs within a twelve-month period, unless the
nomination for election by the Company's shareholders of each new director was
approved by the vote of two-thirds of the directors then still in office who
were in office at the beginning of the twelve-month period or who were appointed
by directors who were in office at the beginning of the twelve month period;
(E) the date that Fox ceases to hold the office of
Chairman of the Board of the Company and to beneficially own (within the meaning
set forth in subparagraph (A) above) common shares, no par value, of the Company
representing at least 20 percent of the total voting power of the Company.
(c) AUTOMATIC VESTING OF OPTION UPON DEATH OR DISABILITY.
(i) Anything contained in this Agreement or elsewhere
to the contrary notwithstanding, in the event the Optionee dies or becomes
Disabled (as defined below), the Option granted hereunder shall become fully
exercisable as of the date of the Optionee's death or Disability, whether or not
then exercisable.
(ii) "Disability" shall mean that the Optionee has
become so permanently disabled that he is, has for a period of at least three
months, and probably will continue to be, unable to perform, in a reasonably
effective and full-time manner, the duties and responsibilities he performed for
the Company immediately prior to such permanent disability.
(4) EXERCISE OF OPTION: PAYMENT. The Option may be exercised prior
to its expiration only by:
(a) The Optionee; or
(b) If a fiduciary is appointed by a court to administer
the estate of the Optionee during his lifetime by reason of the physical or
mental disability of the Optionee, by such court-appointed fiduciary; or
(c) In case of the death of the Optionee prior to the
expiration of the Option, by the court-appointed fiduciary administering the
estate of the Optionee.
Any person entitled to exercise the Option may exercise the Option by giving
notice of such exercise to the Company stating the number of Common Shares
subject to the Option in respect of which it is being exercised, accompanied by
a check or cash in full payment of the total Option Price for such Common
Shares.
(5) ADJUSTMENT. In the event of any stock dividend, stock split,
stock combination, reclassification, recapitalization, merger, reorganization or
other change in respect
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of the common shares, no par value, of the Company prior
to the expiration of the Option, the Committee shall determine appropriate
adjustments, if any, to be made in number of Common Shares thereafter subject to
the Option and/or the Option Price therefor.
(6) DELIVERY OF SHARE CERTIFICATES. In case the Option is
exercised by the Optionee from time to time or at any time, the Company shall,
within a reasonable time after receipt of such notice (or, if counsel to the
Company shall require any securities and/or blue sky laws compliance prior to
such issuance, as promptly thereafter as is reasonably practicable), take all
such action as is necessary to request the transfer agent to have delivered
appropriate share certificates evidencing the Common Shares purchased upon such
exercise of the Option.
(7) TERMINATION OF OPTION. Anything contained in this Agreement or
elsewhere to the contrary notwithstanding, the Option (and all of the rights of
the Optionee under this Agreement) shall expire and terminate:
(a) Immediately upon the termination for cause of the
Optionee by the Company;
(b) On the ninetieth (90th) calendar day next following the
first date when the Optionee shall no longer be an employee of the Company for
reasons other than a for cause termination (but in no event after the expiration
of the Option Period), if the Optionee is an employee of the Company as of the
date first above written; or
(c) On the ninetieth (90th) calendar day next following the
date of death of the Optionee (but in no event after the expiration of the
Option Period).
(8) RESTRICTIONS ON TRANSFER OF SHARES. Anything contained in this
Agreement or elsewhere to the contrary notwithstanding:
(a) The Option shall not be exercisable for the purchase of
any Common Shares subject thereto except for:
(i) Common Shares subject thereto which at the time of
such exercise and purchase are registered under the Securities Act of 1933, as
amended (the "Act"), or which, upon the completion of such exercise, would be
issued in a transaction exempt from registration under the Act; and
(ii) Common Shares subject thereto which at the time of
such exercise and purchase are exempt or are the subject matter of an exempt
transaction, are registered by description, by coordination, or by
qualification, or at such time are the subject matter of a transaction which has
been registered by description, all in accordance with Chapter 1707 of the Ohio
Revised Code, as amended; and
(iii) Common Shares subject thereto in respect of which
the laws of any state applicable to such exercise and purchase have been
satisfied.
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(b) If any Common Shares subject to the Option are sold and
transferred upon the exercise thereof to a person who (at the time of such
exercise and transfer or at any time thereafter) controls, is controlled by or
is under common control with the Company, or are sold and transferred in
reliance upon an exemption claimed in respect of the Act, then upon such sale
and transfer:
(i) such Common Shares shall not be transferable by the
holder thereof, and neither the Company nor its transfer agent or registrar, if
any, shall be required to register or otherwise to give effect to any transfer
thereof and may prevent any such transfer, unless the Company shall have
received an opinion from its counsel to the effect that any such transfer would
not violate the Act and the applicable laws of any state; and
(ii) the Company shall cause each share certificate
evidencing such Common Shares to bear a legend reflecting applicable
restrictions on the transfer thereof.
(c) Nothing contained in this Agreement or elsewhere shall
be construed to require the Company to take any action whatsoever to eliminate
the restrictions imposed by this paragraph (8) of this Agreement upon the
exercise of the Option or upon the transfer of Common Shares purchased upon the
exercise of the Option.
(9) CONFIDENTIALITY AND NON-SOLICITATION.
(a) Optionee hereby acknowledges that Optionee has or in
the future may have access to the Company's trade secrets and proprietary or
confidential information developed or acquired by or licensed to the Company,
including, but not limited to, information regarding the Company's operations,
customers or prospects, computer software products, and research and development
information, as such trade secrets and proprietary or confidential information
may exist from time to time ("Confidential Information"). As consideration for
the Option granted to Optionee hereunder, Optionee will not, at any time during
Optionee's employment with the Company, in whole or in part, disclose or cause
any other person to disclose the Confidential Information to any other person or
entity (except the Company and/or its subsidiaries) under any circumstances,
except to the extent required by the Company and/or its subsidiary in connection
with the performance of Optionee's duties as an employee of the Company or such
subsidiary. In addition, Optionee will not, during the term of Optionee's
employment with the Company and/or its subsidiary and for a period of one (1)
year thereafter, solicit or assist any other person or entity in soliciting any
employee of the Company and/or its subsidiary to terminate the employee's
employment with the Company or such subsidiary under any circumstances.
(b) Optionee acknowledges that if there is a breach of any
provision of this paragraph 9 by Optionee, the Company will suffer irreparable
harm in that monetary damages would be inadequate to compensate the Company for
such a breach. In the event of a breach or threatened breach of any such
provisions by Optionee, in addition to such monetary and other relief as may be
available, Optionee agrees that the Company will be entitled to injunctive
relief as may be necessary to restrain any breach or further breach of such
provisions by Optionee, without showing or proving any actual damages or loss
sustained by the Company or notice to Optionee.
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(10) NOTICES AND PAYMENTS. All payments required or permitted to be
made under the provisions of this Agreement, and all notices and other
communications required or permitted to be given or delivered under this
Agreement to the Company or to the Optionee, which notices or communications
must be in writing, shall be deemed to have been given if delivered by hand, or
mailed by first-class mail (postage prepaid), addressed as follows:
(a) If to the Company, to:
Frontstep, Inc.
ATTN.: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) If to the Optionee, to the address of the Optionee
set forth at the conclusion of this Agreement.
The Company or the Optionee may, by notice given to the other in accordance with
this Agreement, designate a different address for making payments required or
permitted to be made, and for the giving of notices or other communications, to
the party designating such new address. Any payment, notice or other
communication required or permitted to be given in accordance with this
Agreement shall be deemed to have been given when placed in the U.S. Mail,
addressed and mailed as provided in this Agreement.
(11) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without regards to
principles of conflict of laws.
(12) RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies of the
Company and of the Optionee enumerated in this Agreement shall be cumulative
and, except as expressly provided otherwise in this Agreement, none shall
exclude any other rights or remedies allowed at law or in equity, and each of
said rights or remedies may be exercised and enforced concurrently.
(13) DUPLICATE ORIGINALS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be a duplicate original, but
all of which, taken together, shall be deemed to constitute a single instrument.
(14) CAPTIONS. The captions contained in this Agreement are
included only for convenience of reference and do not define, limit, explain or
modify this Agreement or its interpretation, construction or meaning and are in
no way to be construed as a part of this Agreement.
(15) SEVERABILITY. If any provision of this Agreement or the
application of any provision thereof to any person or any circumstance shall be
determined to be invalid or unenforceable, then such determination shall not
affect any other provision of this Agreement or the application of said
provision to any other person or circumstance, all of which other provisions
shall remain in full force and effect, and it is the intention of each party to
this Agreement that if any provision of this Agreement is susceptible of two or
more constructions, one of which would render the provision enforceable and
other or others of which would render
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the provision unenforceable, then the provision shall have the meaning which
renders it enforceable.
(16) NUMBER AND GENDER. When used in this Agreement, the number and
gender of each pronoun shall be construed to be such number and gender as the
context, circumstances or its antecedent may require.
(17) ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the Company and the Optionee in respect of the subject matter
of this Agreement, and this Agreement supersedes all prior and contemporaneous
Agreements between any party hereto in connection with the subject matter of
this Agreement. No officer, employee or other servant or agent of the Company,
and no servant or agent of the Optionee, is authorized to make any
representation, warranty or other promise not contained in this Agreement. No
change, termination or attempted waiver of any of the provisions of this
Agreement shall be binding upon any party hereto unless contained in a writing
signed by the party to be charged.
(18) NON-TRANSFERABLE; SUCCESSORS AND ASSIGNS. The Option shall not
be transferable by the Optionee other than by will or by the laws of descent and
distribution and the Option may not be exercised during the lifetime of the
Optionee except by him or by his court-appointed fiduciary. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns
(including successive, as well as immediate, successors and assigns) of the
Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed on the date first above written.
Company: Optionee:
FRONTSTEP, INC. [NAME2]
(FKA SYMIX SYSTEMS, INC.)
By: By:
-------------------------------- --------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇ [Name]
Chairman of the Board
[Address 1]
Social Security No.: [SSN]
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