EXHIBIT 10.43(b)
MANUGISTICS GROUP, INC.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
This Stock Option Agreement, dated as of December 1, 1999 is by and between
Manugistics Group, Inc., a Delaware corporation (the "Company"), and Xxxx Xxxxx,
an individual residing at 000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000 (the
"Employee").
BACKGROUND
Employee was employed by the Company as its Chief Executive Officer and
President pursuant to the terms of that certain letter agreement dated April 25,
1999 between Employee and the Company (the "Employment Letter"). In order to
provide the Employee with a direct proprietary interest in the future success of
the Company and to encourage the Employee to achieve maximum performance with
the Company, the Company agreed as provided in the Employment Letter, to grant
to the Employee an option to purchase 500,000 shares of Common Stock of the
Company (the "Additional Option"), on the terms and subject to the conditions
set forth therein. The Employment Letter provides that all compensation and
benefits provided thereunder will conform to the Company's standard policies,
practices and plans, and that the Compensation Committee of the Board of
Directors shall make the final determination with regard to any interpretation
relating to elements of the Employee's compensation package. The Compensation
Committee has determined that, under the terms of the Employment Letter, as
interpreted in light of the company's policies and practices, the Employee is
entitled to receive the Additional Option as of the date hereof and that such
Additional Option shall be exercisable at a price of Eighteen and Five-Eighths
Dollars ($18.625) per share.
NOW, THEREFORE, in view of the foregoing, and in consideration of the
promises herein
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contained, and each intending to be legally bound hereby, the parties agree as
follows:
1. Grant of Option; Payment of Exercise Price.
a. The Company hereby grants to the Employee the right and option to
purchase under the terms and conditions set forth below, 500,000 shares of the
Company's common stock, (the "Shares"), at a price of Eighteen and Five-Eighths
Dollars ($18.625) per share (the "Purchase Price") payable as set forth below
(the "Option").
b. The Option may be exercised, in whole or in part as to a minimum of 50
shares or if fewer, the total number of shares subject to the Option, by giving
written notice of exercise to the Company specifying the number of Shares to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price, plus any required federal, state and/or local withholding taxes, in cash,
or in shares of common stock of the Company already owned by the Employee with
such shares valued at their Fair Market Value. For such purposes, "Fair Market
Value" shall be defined as the closing price of the common stock of the Company
on the day immediately preceding the exercise date as reported on the Nasdaq
System. The Employee may also simultaneously exercise the Option (or a part
thereof) and sell all or part of the Shares thereby acquired pursuant to any
arrangement then in effect between any broker and the Company, and to use the
proceeds from such sale to pay the exercise price and withholding taxes.
2. Terms and Exercise of Option.
a. The Option shall have a term of ten years from the date hereof, and
shall vest in forty-eight equal monthly installments over the four year period
beginning on the date hereof (the "Vesting Period"). The Option may only be
exercised during the ten year term hereof and only
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to the extent it is vested.
b. In the event of a Change in Control of the Company (defined below), (i)
if the Employee's responsibilities are not affected, fifty percent (50%) of the
outstanding Option shall immediately vest, and (ii) if the Employee's
responsibilities are significantly diminished or the Employee is constructively
terminated (i.e., the Employee's responsibilities no longer consist of those
reasonably associated with the position of Chief Executive Officer and
President) one hundred percent (100%) of the outstanding Option shall
immediately vest, in each instance as of the effective date of such Change in
Control, without regard to the Vesting Period. A Change in Control shall be
deemed to have occurred at such time as fifty one percent (51%) of the Company's
voting stock shall have been acquired by any person and/or its affiliates in a
single transaction or a series of related transactions.
c. In the event the Employee's employment with the Company is terminated
without cause by the Company, vesting of the Option shall accelerate for the six
monthly installments immediately following such date of termination of
employment, and any remaining portion of the Option which is not vested or
accelerated as of such date of termination, shall terminate.
d. In the event the Employee's employment with the Company is terminated by
the Company for cause or voluntarily by the Employee, any portion of the Option
not vested as of such date of termination of employment shall terminate. For
purposes hereof, "cause" shall mean (i) substantial and continued failure by the
Employee to perform his duties as President and Chief Executive Officer which
results, or could reasonably be expected to result, in material harm to the
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business or reputation of the Company, which failure is not cured (if curable)
by the Employee within fifteen (15) days after written notice of such failure is
delivered to the Employee by the Company, (ii) gross misconduct including,
without limitation, embezzlement, fraud, or misappropriation, or (iii) the
commission of a felony.
e. In no event may this Option be exercised after the expiration of the ten
year term hereof. Except as provided in this Paragraph 2(e), no portion of this
Option may be exercised unless the Employee is employed by the Company at the
time of exercise, and may only be exercised by the following persons, under the
following conditions, and in all cases subject to all provisions of this Option
Agreement, and all applicable laws, rules and regulations: (i) by the Employee,
(ii) by the Employee's permitted transferees as provided below in Paragraph
2(f), (iii) if the Employee shall become disabled or die, and shall not have
fully exercised the Option, by the Employee or by the executors or
administrators of the Employee or by any person or persons who shall have
acquired the Option directly from the Employee by bequest or inheritance, but
only within one year of the date of death or disability, (iv) by the Employee in
the event that the Employee's employment with the Company is terminated without
cause by the Company, but only within three months after such date of
termination of employment; or (v) by the Employee in the event that the
Employee's employment with the Company is terminated voluntarily by the Employee
or with cause by the Company, but only within one month after such date of
termination of employment. Notwithstanding the foregoing, the Option may be
exercised only to the extent that the Option is vested pursuant to Paragraphs
2(a), 2(b), 2(c) or 2(d) of this Agreement at the date of the Employee's
disability, death or termination of employment.
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f. Except as provided herein, no part of this Option, and no right or
interest therein, shall be (i) assignable, alienable or transferable by the
Employee, except by will or the laws of descent and distribution, or (ii)
subject to any obligation, or the lien or claims of any creditor, of the
Employee, or (iii) subject to any lien, encumbrance or claim of any party made
in respect of or through the Employee, however arising. During the lifetime of
the Employee, this Option is exercisable only by, and the Shares issued upon the
exercise of this Option will be issued only to the Employee, his permitted
transferees, or his legal representative. Notwithstanding the foregoing, the
Employee may transfer all or a portion of this Option; provided, that in no
event shall any transfer be made to any person or persons other than the
Employee's parents, spouse or other life partner, children or grandchildren,
siblings, or children of siblings, or a trust for the exclusive benefit of one
or more such persons, which transfer must be made as a gift and without any
consideration, or pursuant to a qualified domestic relations order. All other
transfers and any retransfer by any permitted transferee are prohibited and any
such purported transfer shall be null and void. This Option and the Employee
shall continue to be subject to the same terms and conditions as were in effect
immediately prior to such permitted transfer. The Employee shall remain
responsible to the Company for the payment of all withholding taxes incurred as
a result of any exercise of this Option. In no event shall any permitted
transfer of this Option create any right in any party in respect of this Option,
other than the right of the permitted transferee to exercise this Option to the
extent the Employee could have exercised this Option had such transfer not
occurred.
3. Recapitalization; Anti-Dilution Protection.
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a. Subject to any required action by the stockholders of the Company, the
number of Shares which may be purchased at any time under the Option, and the
price per share therefor, shall be proportionately adjusted for any increase or
decrease in the number of outstanding shares of the common stock of the Company
resulting from a subdivision or consolidation of shares or the payment of a
stock dividend (but only on the common stock) or any other increase or decrease
in the number of such shares effected without receipt of consideration by the
Company, such that, upon exercise of the Option from time to time thereafter,
the Employee shall be entitled to receive such number of Shares as he would have
received had the Option been exercised prior to such action.
b. If the Board of Directors of the Company, during the twelve month period
beginning on April 27, 1999, directs management of the Company to obtain
additional equity capital (other than through the Company's employee benefit
plans), the Company will provide to the Employee (provided Employee is then an
employee of the Company) anti-dilution protection for this Option with respect
to common stock or Convertible Securities (defined below) issued in
consideration for the first Fifteen Million Dollars ($15,000,000) of such
additional equity capital obtained. The anti-dilution protection shall be in the
form of additional options granted to Employee upon the closing date of the
investment of such additional equity capital, (i) priced at the Fair Market
Value of the common stock of the Company on the day immediately preceding such
closing date, (ii) subject to terms and conditions similar to the terms and
conditions of this Option and (iii) equal to the number of shares of common
stock necessary, which when added to the Option for 500,000 shares issued
hereunder, to cause the percentage of outstanding common
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stock of the Company represented by the sum of the Option and such additional
options, to be equal to the percentage that the Option represented on the date
of this Option Agreement, adjusted for any other issuances of common stock for
which anti-dilution protection is not granted hereunder. Vesting of such
additional options shall be in accordance with the original grant of this Option
(i.e., monthly over the remaining Vesting Period). In the event the securities
issued in consideration for the additional equity capital are in the form of
securities convertible into common stock ("Convertible Securities"), the number
of additional options granted hereunder shall be determined as if the conversion
rights attached to such Convertible Securities were immediately exercised;
however, the additional options issued as a result of the issuance of the
Convertible Securities shall only be exercisable pro rata to the extent and at
such time as the conversion rights attached to such Convertible Securities are
actually exercised. The condition to exercise contained in the immediately
preceding sentence hereof shall be applied in addition to, and separately from,
the requirement that the options must be vested in order to be exercisable.
4. Consolidation; Merger; Dissolution and Conversion.
a. Subject to any required action by the shareholders of the Company, if
the Company shall be the surviving corporation in any merger or consolidation,
while any part of this Option remains unexercised, such unexercised part of this
Option shall pertain to and apply to the securities to which a holder of the
number of Shares subject hereto would have been entitled (i.e., the Employee
shall be entitled to purchase such number of securities as he would have
received had this Option been exercised prior to such merger or consolidation).
b. Subject to ss.2(b) above, in the event of a dissolution or liquidation
of the
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Company or a merger or consolidation in which the Company is not the surviving
corporation, the Employee shall, in such event, have the right, immediately
prior to such dissolution, liquidation, merger or consolidation, to exercise
this Option in whole or in part without regard to the installment provisions of
Paragraph 2(a) above, unless this Option is assumed by the surviving or
acquiring corporation, or its parent.
c. In the event of a change in the Common Stock of the Company as presently
constituted, which is limited to a change of all of its authorized shares with
par value into the same number of shares with a different par value or without
par value, the shares resulting from any such change shall be deemed to be
Shares within the meaning of this Option.
5. Notice of Exercise. The Option shall be exercisable upon the Employee
giving (a) written notice to the Company of such exercise specifying the number
of Shares to be purchased, (b) payment of the Purchase Price of the Shares being
purchased and any applicable withholding taxes as provided in Paragraph 1(b)
above, and, subject to applicable federal and state securities laws, shall be
effective upon actual receipt of the foregoing (a) and (b).
6. Failure to Exercise. If the Employee fails to exercise any part of the
Option in accordance with the terms of this Agreement within the period set
forth in Paragraph 2(a) above, then such part and all rights attached thereto
shall automatically and immediately terminate without notice. This Agreement
does not impose any obligation on the Employee to exercise the Option or any
part hereof nor does it modify the other terms of Employee's employment set
forth in the Employment Letter. The Employee shall have no rights as a
stockholder of the Company with respect to the Shares covered by the Option
unless and except to the extent that the Option shall
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have been validly exercised.
7. Notices. Any and all notices or other writings, which are required to be
served, or which may be served under the provisions of this Agreement, shall be
in writing, and shall be sufficiently served if delivered personally or mailed
by registered or certified mail (return receipt requested), postage prepaid, to
the parties at the addresses set forth on the first page of this Agreement, or
at such other address for a party as shall be specified by like notice;
provided, that notices of a change of address shall be effective only upon
receipt thereof. If mailed as aforesaid, three (3) days after the date of
mailing shall be the date notice shall be deemed to have been received.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings and
discussions, whether written or oral between the parties and may be amended only
by a written document signed by the parties hereto.
9. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Delaware, without reference to principles of conflicts
of laws.
10. Headings. The headings and captions contained herein are for
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
11. Corporate Action. No provision of this Option shall be construed to
prevent the Company from taking any corporate action deemed by the Company to be
appropriate or in its best interest, whether or not such action could have an
adverse effect on this Option, and neither the Employee or the Employee's
estate, personal representative, beneficiary or permitted transferee
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shall have any claim against the Company as a result of taking such action.
IN WITNESS WHEREOF, the patties hereto have executed this Option on the day
and year first above written. MANUGISTICS GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: SR V.P. & General Counsel
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EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxx Xxxxx
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