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Exhibit 10.15
STOCK OPTION AGREEMENT (the "Agreement"), dated as of September 30,
1997, between MOBIUS MANAGEMENT SYSTEMS, INC. (the "Company"), a New York
corporation, and Xxxxxx Xxxxxxxxxx (the "Optionee"), an employee of the Company.
The Company's Board of Directors has determined that the objectives
of the Company's 1996 Stock Incentive Plan (the "Plan") will be furthered by
granting to the Optionee a stock option pursuant to the Plan. Capitalized terms
used herein without definition shall have the meaning as described thereto in
the Plan.
In consideration of the foregoing and of the mutual undertakings set
forth in this Agreement, the Company and the Optionee hereby agree as follows:
SECTION 1 Grant of Option
The Company hereby grants to the Optionee a stock option (the
"Option") to purchase 1,000 shares ("the Shares") of Class A Non-Voting common
stock of the Company ("Common Stock") at a purchase price of $694.44 per share
(the "Exercise Price"). It is intended that the Option not qualify as an
"incentive stock option" as defined in section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
SECTION 2 Exercisability
Subject to the further terms of this Agreement, the Option shall
become exercisable immediately upon the date hereof. Unless earlier terminated
pursuant to the provisions of the Plan, the unexercised portion of the Option
shall expire and cease to be exercisable at 12:01 a.m. on the 5th anniversary of
the date of this Agreement.
SECTION 3 Method of Exercise
The Option or any part thereof may be exercised only by the giving
of written notice to the Company on such form and in such manner as the
Committee shall prescribe. Such written notice must be accompanied by payment of
the full purchase price for the number of shares being purchased. Such payment
may be made by one or a combination of the following methods: (a) by certified
or official bank check (or the equivalent thereof acceptable to the Company);
(b) with the consent of the Company, by delivery of shares of Common Stock
acquired prior to the option exercise date and having a Fair Market Value on the
exercise date equal to part or all of the purchase price; or (c) by such other
method as the Company may authorize. Pursuant to Section 3.2 of the Plan, it
shall be a condition precedent to the issuance of Shares upon exercise of the
Option that the Optionee shall remit to the Company an amount sufficient to
satisfy all applicable withholding tax requirements. The date of exercise of the
Option shall be the date on which written notice of exercise is hand delivered
to the Company, during normal business hours, at its address as provided in
Section 11 of this Agreement, or, if mailed, the date on which it is postmarked,
provided such notice is actually received.
SECTION 4 Death
If the Optionee dies during the period in which the Option is
exercisable, the Option shall be exercisable only until the earlier of the
expiration date of the Option (specified in Section 2 of this Agreement) or 90
days after the Optionee's death.
SECTION 1
SECTION 2 Forfeiture of Option Gains
If at any time within one year after the exercise of all or any
portion of the Option the Optionee engages in any activity determined in the
sole discretion of the Board to be in competition with any activity of the
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Company, or otherwise contrary or harmful to the interests of the Company
(including, but not limited to accepting employment with or serving as a
consultant, adviser or in any other capacity to, an entity that is in
competition with the Company), then any option gain realized by the Optionee
from exercising such option shall, upon notice from the Company, be paid by the
Optionee to the Company. For purposes of this Section, "option gain" means the
excess of the Fair Market Value of a share of Common Stock on the date of
exercise of the Option over the option exercise price, multiplied by the number
of shares with respect to which the Option was exercised, without regard to any
subsequent decrease or increase in the Fair Market Value of such shares. The
Company shall have the right to offset such option gain against any amounts
otherwise owed to the Optionee by the Company (whether as wages, vacation pay,
or pursuant to any benefit plan or other compensatory arrangement).
SECTION 3 Investment Representations
The Optionee hereby represents and warrants to and agrees with the
Company as follows:
SECTION 3.1 Acquisition of Shares for Own Account. The Optionee will
acquire the Shares, if at all, pursuant to this Agreement with the Optionee's
own funds, and not with the funds of anyone else. The Shares will be acquired,
if at all, for the Optionee's own account, not as a nominee or agent and not for
the account of any other person or firm. No one else has or will have on any
exercise of the Option or any portion thereof any interest, beneficial or
otherwise, in any of the Shares to be acquired on such exercise. The Optionee is
not, and prior to any exercise of the Option will not be, obligated to transfer
any of the Shares or any interest therein to anyone else and the Optionee does
not and will not have any agreement or understandings to do so. The Optionee
does not, and on any exercise of the Option will not, intend to subdivide the
Optionee's acquisition of any Shares with anyone.
SECTION 3.2 Agreement to Refrain from Resales. The Optionee
agrees that, notwithstanding any provision hereof or in the Plan to the
contrary, the Optionee shall in no event make any disposition of all or any part
of or interest in the Shares and that such Shares shall not be encumbered,
pledged, hypothecated, sold or transferred by the Optionee nor shall the
Optionee receive any consideration for such Shares or for any interest therein
from any person, unless and until prior to any proposed transfer, encumbrance,
disposition, pledge, hypothecation or sale of any Shares, either (1) a
registration statement on form S-1 or S-8 (or any other form replacing such form
or appropriate for the purpose under the Securities Act of 1933, as amended)
with respect to such shares proposed to be transferred or otherwise disposed of
shall be then effective or (2) (i) the Optionee shall have notified the Company
of the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, (ii) the
Optionee shall have furnished the Company with an opinion of counsel in form and
substance satisfactory to the Company to the effect that such disposition will
not require registration of any such Shares under the Act or qualification of
any such shares under any other securities law, (iii) such opinion of counsel
shall have been concurred in by counsel for the Company and (iv) the Company
shall have advised the Optionee of such concurrence.
SECTION 3.3 Shares May Be "Restricted Securities";
Certificates Representing Shares May Be Legended
The Optionee understands and agrees that:
SECTION 3.3.1 the Shares, if and when issued, may be
"restricted securities," as that term is defined in Rule 144 under the Act, and,
accordingly, the Optionee may be required to hold the Shares indefinitely unless
they are registered under the Act or an exemption from such registration is
available;
SECTION 3.3.2 the Company is not under any obligation to
register the Shares under the Act or to comply with any exemption thereunder;
and
SECTION 3.3.3 certificates representing any Shares
received by the Optionee on exercise of the Option may bear a legend on the face
thereof (or on the reverse thereof with a reference to such legend on the face
thereof) substantially in the form set forth below, which legend restricts the
sale, transfer or disposition of the Shares otherwise than in accordance with
this Agreement, as well as such
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other legend as the Company may deem appropriate referencing the transfer
restrictions included in the shareholders' agreement provided for in Section
7.1.2:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
ENCUMBERED, PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION AND CONCURRED IN BY
THE CORPORATION'S COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR SUCH TRANSACTION COMPLIES WITH RULES PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION UNDER SAID ACT. IN ADDITION, SALE,
TRANSFER, ENCUMBRANCE, HYPOTHECATION, GIFT OR OTHER DISPOSITION OR
ALIENATION OF SUCH SHARES OR ANY INTEREST THEREIN IS RESTRICTED BY AND
SUBJECT TO A STOCK OPTION AGREEMENT DATED __________ A COPY OF WHICH MAY
BE INSPECTED AT THE PRINCIPAL OFFICE OF THE CORPORATION AND ALL OF THE
PROVISIONS OF WHICH ARE INCORPORATED BY REFERENCE IN THIS CERTIFICATE.
SECTION 4 Exercise Prior to Initial Public Offering
Notwithstanding any other provision to the contrary contained
herein, in the event that prior to the exercise, in whole or in part, of the
Option, the Company has not completed an underwritten public offering of at
least $30,000,000 of Common Stock, where at least $10,000,000 of the proceeds
from such offering are received by the Company, the following terms and
provisions shall apply:
SECTION 4.1 Prior to the Optionee's exercise of the Option,
and as a condition precedent to such exercise and the issuance of any Shares,
the Company may require the Optionee to:
SECTION 4.1.1 confirm to the Company, in such form as
the Company may specify, the representations and warranties of the Optionee set
forth in Section 6 above or to make similar or additional representations,
warranties and agreements with respect to such Shares.
SECTION 4.1.2 execute and deliver to the Company an
appropriate counterpart to a shareholders' agreement with the Company, which
agreement shall include such terms and provisions as the Company in its
discretion deems necessary or desirable to restrict the Optionee's right to
transfer such Shares, including, without limitation, a right of first refusal
exercisable by the Company or its shareholders on the transfer of the Shares
received by the Optionee, a right to repurchase the Shares upon the Optionee's
termination of employment at the Exercise Price if such termination was for
cause or at Fair Market Value if such termination was for a reason other than
for cause.
SECTION 5 Nonassignability
The Option shall not be assignable or transferable, voluntarily or
involuntarily, other than by will or by the laws of descent and distribution.
The Option shall be exercisable during the life of the Optionee only by the
Optionee or the Optionee's legal representative.
SECTION 6 Right of Discharge Reserved
Nothing in this Agreement shall confer upon the Optionee the right
to continue in the employ of the Company or affect any right which the Company
may have to terminate such employment.
SECTION 7 421(b) Disqualifying Disposition Notice
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With respect to the transfer or other disposition of Shares issued
pursuant to the exercise of any "incentive stock options" granted hereunder, the
Optionee shall notify the Company of any such transfer of disposition made under
the circumstances described in Section 421(b) of the Code (relating to certain
disqualifying dispositions). Such notice shall be delivered to the Company in
accordance with the provisions of Section 12 below within 10 days of such
transfer or other disposition.
SECTION 8 Plan Provisions to Prevail
This Agreement is subject to all of the terms and provisions of the
Plan. Without limiting the generality of the foregoing, by entering into this
Agreement the Optionee agrees that no member of the Board or the Committee nor
any employee of the Company or any of its subsidiaries shall be liable for any
action or determination made in good faith with respect to the Plan or this
Agreement. In the event that there is any inconsistency between the provisions
of this Agreement and of the Plan, the provisions of the Plan shall govern.
SECTION 9 Notices
Any notice to be given to the Company hereunder shall be in writing
and shall be addressed to Mobius Management Systems, Inc., Xxx Xxxxxx Xxxxx, Xxx
Xxxxxxxx, Xxx Xxxx 00000, or at such other address as the Company may hereafter
designate to the Optionee by notice as provided in this Section 11. Any notice
to be given to the Optionee hereunder shall be addressed to the Optionee at the
address set forth beneath his signature hereto, or at such other address as the
Optionee may hereafter designate to the Company by notice as provided herein. A
notice shall be deemed to have been duly given when personally delivered or, if
mailed by registered or certified mail to the party entitled to receive it, five
days after the date the notice was so mailed.
SECTION 10 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and assigns of the Company and, to the extent
consistent with Section 4.1 of this Agreement and with the Plan, the heirs and
personal representatives of the Optionee.
SECTION 11 Governing Law
This Agreement shall be interpreted, construed and administered in
accordance with the laws of the State of New York as they apply to contracts
made, delivered and performed entirely within such state.
SECTION 12 Severability
If any provision of this Agreement (including any provision of the
Plan that is incorporated herein by reference) shall hereafter be held to be
invalid, unenforceable or illegal in whole or in part, in any jurisdiction under
any circumstances for any reason, (i) such provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal while preserving the intent of the parties as expressed in, and the
benefits to the parties provided by, this Agreement and the Plan or (ii) if such
provision cannot be so reformed, such provision shall be severed from this
Agreement and an equitable adjustment shall be made to this Agreement
(including, without limitation, addition of necessary further provisions to this
Agreement) so as to give effect to the intent as so expressed and the benefits
so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement or the Plan.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first written above.
MOBIUS MANAGEMENT SYSTEMS, INC.
ATTEST: By: /s/ E. Xxxxx Xxxxxx
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Name: E. Xxxxx Xxxxxx
Title: Chief Financial Officer
OPTIONEE: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Address: 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
