EXHIBIT 10.07
UNICA CORPORATION
STOCK OPTION AGREEMENT
1. Grant of Option. Unica Corporation, with a principal place of business
at 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000 (the "Company"), hereby grants to
_______________ (the "Optionee"), an option, pursuant to the Company's
2003 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. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Plan or the
Agreement, as applicable.
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
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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.
ANY AND ALL SHARES OF COMMON STOCK ACQUIRED UPON EXERCISE OF
THE FOREGOING OPTIONS SHALL BE SUBJECT TO THE RESTRICTIONS ON
TRANSFER AND COMPANY REPURCHASE RIGHTS SET FORTH IN SECTION 9
BELOW.
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.
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 or Parent Corporation or Subsidiary.
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
or Parent Corporation or Subsidiary 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. 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. 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 or rejects such valuation, or chooses
to invoke the appraisal process set forth in Section 9(c)(i) below.
Unless the Company receives written notice from the Optionee that the
valuation is rejected, the valuation as set by the Board will be deemed
accepted by the Optionee as the "Fair Market Value" hereunder. 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. Nature of Grant. In accepting the grant, the Optionee acknowledges
that:
a) the Plan is established voluntarily by the Company, it is
discretionary in nature and it may be modified, amended,
suspended or terminated by the Company at any time, unless
otherwise provided in the Plan and this Agreement;
b) the grant of the options is voluntary and occasional and does
not create any contractual or other right to receive future
grants of options, or benefits in lieu of options, even if
options have been granted repeatedly in the past;
c) all decisions with respect to future option grants, if any,
will be at the sole discretion of the Company;
d) the Optionee's participation in the Plan shall not create a
right to employment with the Company or Parent Corporation or
Subsidiary and shall not interfere with the ability of the
Company or Parent Corporation or Subsidiary to terminate the
Optionee's employment or other service relationship at any
time with or without cause;
e) the Optionee is voluntarily participating in the Plan;
f) the option is an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to
the Company or Parent Corporation or Subsidiary, and which is
outside the scope of the Optionee's employment or service
contract, if any;
g) the options are not part of normal or expected compensation or
salary for any purposes, including, but not limited to,
calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service
awards, pension or retirement benefits or similar payments;
h) in the event that the Optionee is not an employee of the
Company, the option grant will not be interpreted to form an
employment contract or relationship with the Company; and
furthermore, the option grant will not be interpreted to form
an employment or service contract with the Company or Parent
Corporation or Subsidiary;
i) the future value of the underlying shares is unknown and
cannot be predicted with certainty;
j) if the underlying shares do not increase in value, the options
will have no value;
k) if the Optionee exercises the option and obtains shares, the
value of those shares acquired upon exercise may increase or
decrease in value, even below the option price;
l) in consideration of the grant of options, no claim or
entitlement to compensation or damages shall arise from
termination of the options or diminution in value of the
options or shares purchased through exercise of the options
resulting from termination of the Optionee's employment by or
service relationship with the Company or Parent Corporation or
Subsidiary (for any reason whatsoever and whether or not in
breach of local labor laws) and the Optionee irrevocably
releases the Company and/or Parent Corporation or Subsidiary
from any such claim that may arise; if, notwithstanding the
foregoing, any such claim is found by a court of competent
jurisdiction to have arisen, then, by signing this Agreement,
the Optionee shall be deemed irrevocably to have waived his or
her entitlement to pursue such claim; and
m) notwithstanding any terms or conditions of the Plan to the
contrary, in the event of involuntary termination of the
Optionee's employment (whether or not in breach of local labor
laws), the Optionee's right to receive options and vest in
options under the Plan, if any, will terminate effective as of
the date that he or she is no longer actively employed and
will not be extended by any notice period mandated under local
law (e.g., active employment would not include a period of
"garden leave" or similar period pursuant to local law);
furthermore, in the event of involuntary termination of
employment (whether or not in breach of local labor laws), the
Optionee's right to exercise the options after termination of
employment, if any, will be measured by the date of
termination of his or her active employment and will not be
extended by any notice period mandated under local law; the
Board of Directors shall have the exclusive discretion to
determine
when the Optionee is no longer actively employed for purposes
of his or her option grant.
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 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, as amended on March 20, 2001
by and among the Company and the other parties named therein, as the
same may be further 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 or her 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 Optionee
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 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 or her legal representative),
upon the occurrence of any of the events specified in Section
9(b)(ii) below (the "Repurchase Event"). The Company may
exercise its Repurchase Right for a period of ninety (90) days
beginning six (6) months after the later of the date the
Company receives notice of or otherwise becomes aware of a
Repurchase Event or the date of the exercise of this Option
(the "Repurchase Period"); provided, however, that the Company
may exercise its Repurchase Right at any time after the
Repurchase Event and prior to the end of the Repurchase Period
if the Company determines, in its sole discretion, after
consulting with the Company's auditors, that an earlier
exercise of its Repurchase Right will not have a material
impact on the Company's earnings for financial accounting
purposes. The Repurchase Right may be exercised 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 or Parent Corporation or
Subsidiary 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
or her service to the Company or Parent Corporation
or Subsidiary 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 following additional arbitration and
notice provisions:
(i) If the Optionee provides written notice that the
valuation is rejected, during the ten (10) day period
following Company's receipt of such 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 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. Such
arbitration shall be irrevocable and binding on both
parties.
(ii) In the case of any Shares purchased by the Optionee
(or his or her 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 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 or Parent Corporation or Subsidiary,
which remains uncured to the reasonable satisfaction of the
Company or Parent Corporation or Subsidiary 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 or Parent Corporation or
Subsidiary 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 or Parent
Corporation or Subsidiary as a consultant, advisor, director
or employee shall be "without Cause" as follows: (i) if, at
any time, the Company or Parent Corporation or Subsidiary
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 or her 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 or her
employment responsibilities immediately prior to his or 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 or her
legal representative) shall deliver to the Company
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 U.S. 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
or her position for Good Reason, as defined in this Section 11 below,
then all installments of 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 or her employment responsibilities immediately prior to
the Reorganization Event, or (ii) a reduction in base salary other than
an across the board reduction for all consultants, directors, advisers
or employees at Optionee's level (exclusive of bonuses and/or
commissions, vacation pay, leave pay, 401k contributions, stock
options, insurance benefits, fringe benefits or any other employee
benefit).
12. Responsibility for Taxes. Regardless of any action the Company or
Parent Corporation or Subsidiary takes with respect to any or all
income tax, social insurance, payroll tax, payment on account or other
tax-related withholding ("Tax-Related Items"), the Optionee
acknowledges that the ultimate liability for all Tax-Related Items
legally due by the Optionee is and remains his or her responsibility
and that the Company and/or Parent Corporation or Subsidiary (1) make
no representations or undertakings regarding the treatment of any
Tax-Related Items in connection with any aspect of the option grant,
including the grant, vesting or exercise of the option, the subsequent
sale of Shares acquired pursuant to such exercise and the receipt of
any dividends; and (2) do not commit to structure the terms of the
grant or any aspect of the option to reduce or eliminate the Optionee's
liability for Tax-Related Items.
Prior to exercise of the option, the Optionee shall pay or make
adequate arrangements satisfactory to the Company and/or Parent
Corporation or Subsidiary to satisfy all withholding and payment on
account obligations of the Company and/or Parent Corporation or
Subsidiary. In this regard, the Optionee authorizes the Company and/or
Parent Corporation or Subsidiary to withhold all applicable Tax-Related
Items legally payable by the Optionee from his or her wages or other
cash compensation paid to the Optionee by Company and/or Parent
Corporation or Subsidiary or from proceeds of the sale of the shares.
Alternatively, or in addition, if permissible under local law, the
Company may (1) sell or arrange for the sale of shares that the
Optionee acquires to meet the withholding obligation for Tax-Related
Items, and/or (2) withhold in shares, provided that the Company only
withholds the amount of shares necessary to satisfy the minimum
withholding amount. Finally, the Optionee shall pay to the Company or
Parent Corporation or Subsidiary any amount of Tax-Related Items that
the Company or Parent Corporation or Subsidiary may be required to
withhold as a result of the Optionee's participation in the Plan or the
Optionee's purchase of shares that cannot be satisfied by the means
previously described. The Company may refuse to honor the exercise and
refuse to deliver the Shares if the Optionee fails to comply with his
or her obligations in connection with the Tax-Related Items as
described in this section.
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 U.S. 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. DATA PRIVACY. THE OPTIONEE HEREBY EXPLICITLY AND UNAMBIGUOUSLY CONSENTS
TO THE COLLECTION, USE AND TRANSFER, IN ELECTRONIC OR OTHER FORM, OF
THE OPTIONEE'S PERSONAL DATA AS DESCRIBED IN THIS DOCUMENT BY AND
AMONG, AS APPLICABLE, THE PARENT CORPORATION OR SUBSIDIARY, AND THE
COMPANY FOR THE EXCLUSIVE PURPOSE OF IMPLEMENTING, ADMINISTERING AND
MANAGING THE OPTIONEE'S PARTICIPATION IN THE PLAN.
THE OPTIONEE UNDERSTANDS THAT THE COMPANY AND PARENT CORPORATION OR
SUBSIDIARY HOLD CERTAIN PERSONAL INFORMATION ABOUT THE OPTIONEE,
INCLUDING, BUT NOT LIMITED TO, THE OPTIONEE'S NAME, HOME ADDRESS AND
TELEPHONE NUMBER, DATE OF BIRTH, SOCIAL INSURANCE NUMBER OR OTHER
IDENTIFICATION NUMBER, SALARY, NATIONALITY, JOB TITLE, ANY SHARES OF
COMMON STOCK OR DIRECTORSHIPS HELD IN THE COMPANY, DETAILS OF ALL
OPTIONS OR ANY OTHER ENTITLEMENT TO SHARES OF STOCK AWARDED, CANCELED,
EXERCISED, VESTED, UNVESTED OR OUTSTANDING IN THE OPTIONEE'S FAVOR, FOR
THE PURPOSE OF IMPLEMENTING, ADMINISTERING AND MANAGING THE PLAN
("DATA"). THE OPTIONEE UNDERSTANDS THAT DATA MAY BE TRANSFERRED TO ANY
THIRD PARTIES ASSISTING IN THE IMPLEMENTATION, ADMINISTRATION AND
MANAGEMENT OF THE PLAN, THAT THESE RECIPIENTS MAY BE LOCATED IN THE
OPTIONEE'S COUNTRY OR ELSEWHERE, AND THAT THE RECIPIENT'S COUNTRY MAY
HAVE DIFFERENT DATA PRIVACY LAWS AND PROTECTIONS THAN THE OPTIONEE'S
COUNTRY. THE OPTIONEE UNDERSTANDS THAT HE OR SHE MAY REQUEST A LIST
WITH THE NAMES AND ADDRESSES OF ANY POTENTIAL RECIPIENTS OF THE DATA BY
CONTACTING HIS OR HER LOCAL HUMAN RESOURCES REPRESENTATIVE. THE
OPTIONEE AUTHORIZES THE RECIPIENTS TO RECEIVE, POSSESS, USE, RETAIN AND
TRANSFER THE DATA, IN ELECTRONIC OR OTHER FORM, FOR THE PURPOSES OF
IMPLEMENTING, ADMINISTERING AND MANAGING THE OPTIONEE'S PARTICIPATION
IN THE PLAN, INCLUDING ANY REQUISITE TRANSFER OF SUCH DATA AS MAY BE
REQUIRED TO A BROKER OR OTHER THIRD PARTY WITH WHOM THE OPTIONEE MAY
ELECT TO DEPOSIT ANY SHARES OF STOCK ACQUIRED UPON EXERCISE OF THE
OPTION. THE OPTIONEE UNDERSTANDS THAT DATA WILL BE HELD ONLY AS LONG AS
IS NECESSARY TO IMPLEMENT, ADMINISTER AND MANAGE THE OPTIONEE'S
PARTICIPATION IN THE PLAN. THE OPTIONEE UNDERSTANDS THAT HE OR SHE MAY,
AT ANY TIME, VIEW DATA, REQUEST ADDITIONAL INFORMATION ABOUT THE
STORAGE AND PROCESSING OF DATA, REQUIRE ANY NECESSARY AMENDMENTS TO
DATA OR REFUSE OR WITHDRAW THE CONSENTS HEREIN, IN ANY CASE WITHOUT
COST, BY CONTACTING IN WRITING HIS OR HER LOCAL HUMAN RESOURCES
REPRESENTATIVE. THE OPTIONEE UNDERSTANDS, HOWEVER, THAT REFUSING OR
WITHDRAWING HIS OR HER CONSENT MAY AFFECT HIS OR HER ABILITY TO
PARTICIPATE IN THE PLAN. FOR MORE INFORMATION ON THE CONSEQUENCES OF
THE
OPTIONEE'S REFUSAL TO CONSENT OR WITHDRAWAL OF CONSENT, THE OPTIONEE
UNDERSTANDS THAT HE OR SHE MAY CONTACT HIS OR HER LOCAL HUMAN RESOURCES
REPRESENTATIVE.
15. Governing Law. This option grant is governed by, and subject to, the
laws of the Commonwealth of Massachusetts, as provided in the Plan.
For purposes of litigating any dispute that arises under this grant or
the Agreement, the parties hereby submit to and consent to the
jurisdiction of the Commonweath of Massachusetts, agree that such
litigation shall be conducted in the courts of Middlesex County,
Massachusetts, or the federal courts for the United States for the
District of Massachusetts, where this grant is made and/or to be
performed.
16. Language. If the Optionee has received this or any other document
related to the Plan translated into a language other than English and
if the translated version is different than the English version, the
English version will control.
17. Severability. The provisions of this Agreement are severable and if any
one or more provisions are determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions shall
nevertheless be binding and enforceable.
18. 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) five (5) business days after being deposited
with the relevant postal service, if sent by registered or
certified mail, unless the receipt for delivery states a
different date or (iii) three (3) business days, if sent by
Federal Express or similar overnight courier, unless the
receipt for delivery states a different date.
c) Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to the option, the
Plan or future options that may be granted under the Plan by
electronic means, and the Optionee hereby consents to receive
such documents by electronic delivery.
d) By acceptance of this option the Optionee agrees to the terms
and conditions hereof.
e) Unica certifies and represents that the 2003 Stock Option Plan
dated July 23, 2003, is the current and effective version of
the Stock Option Plan.
Date of Grant: UNICA CORPORATION
By: ________________________________
Accepted and Agreed: Title:
Address:
_______________________________
Optionee
Address
In consideration for the Options granted under this Agreement, I hereby accept
and reaffirm, in its entirety, all terms of the Non Competition, Non-Disclosure
and Developments Agreement dated XXXX, including, but not limited to the
non-competition and non-solicitation terms contained in sections 1 and 2 of such
agreement.
Optionee Name
Signature Date
ADDENDUM A TO THE
STOCK OPTION AGREEMENT
UNDER THE UNICA CORPORATION
2003 STOCK OPTION PLAN
(CALIFORNIA PARTICIPANTS)
The Company has granted to the Optionee an option to purchase shares of
Common Stock pursuant to the Plan, subject to the terms and conditions set forth
in the option agreement of even date herewith and the Plan. Notwithstanding
anything set forth in the option agreement and the Plan, the Optionee and the
Company acknowledge that the following provisions (the "Addendum") shall apply
and that each such provision is a material condition of the Company's agreement
to issue the Option and sell the shares subject to the Option to the Optionee.
All capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Plan or the option agreement, as
applicable.
1. Exercisability and Option Term. Stock options shall become
exercisable at such time or times, whether or not in installments, as shall be
determined by the Committee and set forth in the option agreement evidencing
such Option; provided that with the exception of Options granted to officers,
directors, advisors or consultants of the Company or its Subsidiary, no Option
shall become exercisable at a rate less than twenty percent (20%) per year over
a period of five (5) years from the date of grant of such Option, subject to the
Optionee's continued employment or involvement with the Company or its
Subsidiary. Notwithstanding the foregoing, no Option shall be exercisable on or
after the tenth (10th) anniversary of the date of grant of such Option or, in
the case of a 10% Owner Optionee who is granted an Incentive Stock Option, such
Incentive Stock Option shall not be exercisable on or after the fifth (5th)
anniversary of the date of grant.
2. Termination of Service Relationship. In the event that an Optionee's
service relationship terminates, such Optionee may thereafter exercise his, her
or its option, to the extent that it was vested and exercisable on the date of
such termination, until the date specified below. Any portion of the Option that
is not exercisable on the date of termination of such service relationship shall
immediately expire and be null and void. Once any portion of the Option becomes
vested and exercisable, the Optionee's right to exercise such Option (or the
Optionee's representatives and legatees as applicable) in the event of a
termination of the Optionee's service relationship shall continue at least until
the earliest of: (i) the date which is: (A) six (6) months following the date on
which the Optionee's service relationship terminates due to death or Disability
(or such longer period of time as determined by the Committee and set forth in
the applicable option agreement), or (B) thirty (30) days following the date on
which the Optionee's service relationship terminates if the termination is due
to any other reason (or such longer period of time as determined by the
Committee and set forth in the applicable option agreement), or (ii) the
Expiration Date set forth in the option agreement; provided that notwithstanding
the foregoing, an option agreement may provide that if the Optionee's service
relationship is terminated for "Cause" (as defined in the option agreement), the
Option shall terminate immediately and be null and void upon the date of the
Optionee's termination and shall not
thereafter be exercisable. As used in this Addendum, the term "Disability" shall
mean the inability of the Optionee, in the opinion of a qualified physician
acceptable to the Company, to perform the major duties of the Optionee's
position with the Company or its Subsidiary because of the sickness or injury of
the Optionee.
3. Nontransferability of Options. No option shall be transferable by
the Optionee otherwise than by will or the laws of descent and distribution or
by instrument to an inter vivos or testamentary trust in which the options are
to be passed to beneficiaries upon the death of the trustor (settlor); provided
that a Non-Qualified Stock Option may provide in the applicable option agreement
that it is transferable by gift to "immediate family" as that term is defined in
17 C.F.R. 240.16a-1(e). Further, all options shall be exercisable, during the
Optionee's lifetime, only by the Optionee, or the Optionee's legal
representative or guardian in the event of the Optionee's incapacity.
4. Provision of Information. At least annually, each Optionee shall
receive financial statements of the Company; provided, however, the Company
shall not be required to provide such information to key employees whose duties
in connection with the Company assure them access to equivalent information.
5. Repurchase Rights. Shares of Common Stock issued pursuant to options
may be subject to one or more repurchase rights or other conditions and
restrictions as determined by the Committee and set forth in the applicable
option agreement. The Company shall have the right to assign to any person at
any time any repurchase right it may have, whether or not such right is then
exercisable. Any repurchase right for shares of Common Stock issued pursuant to
this Plan shall be at such purchase price as is set forth in the option
agreement; provided that: (i) the right to repurchase at the original purchase
price must lapse at a rate of at least twenty percent (20%) per year from the
date of grant of the option and must be exercised for cash or cancellation of
purchase money indebtedness for the shares within ninety (90) days of the
termination of employment (or, if later, within ninety (90) days of the exercise
of any Option); and (ii) the right to repurchase at no less than the Fair Market
Value of the shares to be repurchased (measured as of the date of termination of
employment), must be exercised for cash or cancellation of purchase money
indebtedness for such shares within ninety (90) days of the termination of
employment (or, if later, within ninety (90) days of the exercise of any Option)
and the right to repurchase must terminate when the Company's shares become
publicly traded. Notwithstanding the foregoing, options held by officers,
directors, advisors or consultants of the Company or its Subsidiary may be
subject to additional or greater restrictions.
[Signature Page Follows]
The foregoing Addendum is hereby accepted and the terms and conditions
thereof are hereby agreed to by the undersigned as of the Grant Date.
[___________________]
By: ______________________________
Name:
Title:
The foregoing Addendum is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of ________________________,
20___.
GRANTEE:
___________________________________
Name:
SPOUSE'S CONSENT
I acknowledge that I have read the foregoing Addendum and understand the
contents thereof.
________________________________
Name
