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EXHIBIT 10.6 - FORM OF NONQUALIFIED OPTION AWARD AGREEMENT;
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
NONQUALIFIED OPTION AWARD AGREEMENT
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
This Non-Employee Director Option Award Agreement is by and between
SalesLogix Corporation (the "Company") and the grantee whose name and signature
is set forth on the final page of this Agreement (the "Director").
WHEREAS, pursuant to the Company's 1999 Non-Employee Director Stock Option
Plan (the "Plan") on (the "Grant Date"), the Director was
automatically granted an option (the "Option") to purchase the number of shares
of the Company's Common Stock, $0.001 par value set forth on the final page of
this Agreement (the "Stock"), at the price per share set forth on the final page
of this Agreement, subject to execution and delivery by the Director of this
Agreement; and
WHEREAS, the Director desires to accept the Option on the terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Governing Terms. The Option is subject to the terms and conditions of
the Plan and the terms and conditions as set forth in this Award Agreement
(collectively the "Agreement"). The terms of the Plan are incorporated by
reference in this Award Agreement and govern the granting, holding and exercise
of the Option as though set forth herein in full. The Director acknowledges that
he or she has received and reviewed a copy of the Plan. All capitalized terms
used in this Award Agreement and not otherwise defined herein shall have the
meanings expressly assigned thereto in the Plan.
2. Exercise Procedure. The Director may exercise the Option only by
delivery to the Company (in care of its Secretary) at the principal offices of
the Company, presently located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, written, irrevocable notice of exercise in the form
attached to this Agreement as Exhibit B, specifying the number of shares with
respect to which the Option is being exercised, together with payment of the
exercise price for those shares in cash or by check. Any other form of exercise
or tender may be refused by the Company, acting through the Board or otherwise,
in its discretion.
3. Governing Law. The Plan and this Option granted to the Director
thereunder are governed by, and shall be interpreted according to, the laws of
the State of Arizona without giving effect to the principles of conflicts of
law.
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4. Further Assurances. Each party hereto agrees to do all such things and
take all such actions, and to make, execute and deliver such other documents and
instruments, as shall be reasonably requested to carry out the provisions,
intent and purpose of this Agreement.
5. Representations and Warranties. The Director hereby represents and
warrants to the Company that receipt of this Option is not contrary to any
policy or agreement of my employer(s).
BECAUSE THE TAX EFFECT MAY VARY DEPENDING ON THE DIRECTOR'S INDIVIDUAL
CIRCUMSTANCES, AND THE TAX LAWS MAY CHANGE FROM TIME TO TIME, IT IS STRONGLY
RECOMMENDED THAT THE DIRECTOR CONSULT WITH TAX COUNSEL OR A TAX ADVISOR IN ORDER
TO REALIZE ANY AVAILABLE TAX BENEFITS, OR ADDRESS ANY POTENTIAL ADVERSE TAX
CONSEQUENCES, ASSOCIATED WITH THIS OPTION.
THIS AWARD AGREEMENT ONLY GRANTS THE OPTIONS DESCRIBED ABOVE AND NOTHING
IN THE PLAN OR THIS AWARD AGREEMENT SHALL MAKE THE DIRECTOR AN EMPLOYEE OR AGENT
OF THE COMPANY FOR ANY PURPOSE WHATSOEVER, NOR CONFER UPON DIRECTOR ANY RIGHT TO
CONTINUE AS A MEMBER OF THE BOARD OF DIRECTORS OF THE COMPANY OR SHALL AFFECT
ANY RIGHT OF THE COMPANY, ITS BOARD, OR STOCKHOLDERS TO TERMINATE THE SERVICE OF
DIRECTOR WITH OR WITHOUT CAUSE.
Number of Option Shares granted: <>
Exercise price per share: <>
SALESLOGIX CORPORATION
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
Date: _______________________________
_____________________________________
<>
Date: _______________________________
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EXHIBIT "A"
SALESLOGIX CORPORATION
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. PURPOSE
(a) The purpose of the SalesLogix Corporation Non-Employee Director Stock
Option Plan (the "Plan") is to provide a means by which each director of
SalesLogix Corporation, a Delaware corporation (the "Company"), who is not
otherwise an employee of the Company or of any subsidiary of the Company (each
such person being hereafter referred to as a "Non-Employee Director") will be
given an opportunity to purchase Common Stock of the Company ("Common Stock"),
to assist in attracting and retaining the services of such persons as members of
the Board of Directors, to further align their interests with the stockholders
and to provide compensation for such persons for serving on the Board.
(b) Options issued under the Plan shall not be incentive stock options
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. ADMINISTRATION AND EFFECTIVE DATE
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates administration to a
committee, as provided in Section 2(b).
(b) The Board may from time to time delegate administration of the Plan to
a committee composed of not fewer than two (2) members of the Board (the
"Committee"). If administration is delegated to a Committee, the Committee shall
have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board.
(c) The Plan shall be effective on the consummation of the offering
described in the Company's initial Registration Statement on Form S-1 under the
Securities Act of 1933 covering shares of Common Stock in an underwritten public
offering, or the date on which the Plan is approved by the stockholders of the
Company, whichever is later (the "Effective Date"), and shall continue until
terminated in accordance with Section 11.
3. SHARES SUBJECT TO THE PLAN
(a) Options to purchase Common Stock shall be automatically granted to
Non-Employee Directors in accordance with this Plan. Options granted hereunder
to purchase Common Stock shall be hereinafter referred to as an "Option" or
"Options." Subject to the provisions of Section 10, the maximum aggregate number
of shares of Common Stock reserved and available for granting of Options
hereunder shall be 200,000 shares of Common Stock, plus an annual increase to be
added automatically at the conclusion of each annual meeting of the Company's
stockholders equal to (i) the aggregate number of shares determined by
multiplying
Ex. A - 1
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the total number of Non-Employee Directors then in office by 12,500,
or (ii) a lesser amount determined by the Board; provided, however, that any
shares from any increases in previous years that are not actually issued shall
be added to the aggregate number of Shares available for issuance under the
Plan.
(b) If any Option shall for any reason expire or otherwise terminate
without having been exercised in full, the stock not purchased under such Option
shall again become available for issuance under the Plan. Any shares of stock
tendered to or withheld by the Company as payment of the exercise price of an
Option or for withholding taxes in connection with such exercise shall again
become available for issuance under the Plan.
(c) Common Stock subject to the Plan may be authorized and unissued shares
or treasury shares.
4. ELIGIBILITY
Options shall be granted only pursuant to the express terms of this Plan
to Non-Employee Directors of the Company who have advised the Company in writing
that the receipt of such Option is not contrary to any policy or agreement of
such Non-Employee Director's employer.
5. NON-DISCRETIONARY GRANTS
(a) Each person who is a Non-Employee Director on the Effective Date, and
each person who is after the Effective Date elected for the first time to be a
Non-Employee Director of the Company shall, upon the Effective Date or the date
of his or her initial designation to be a Non-Employee Director, as the case may
be, be automatically granted an Option to purchase [12,500] shares of Common
Stock on the terms and conditions set forth herein.
(b) Beginning on the date of the Company's first annual meeting of
stockholders in the year following the Effective Date and on each annual meeting
of stockholders thereafter so long as the Plan remains in effect, each
Non-Employee Director shall be automatically granted an Option to purchase
[12,500] shares of Common Stock on the terms and conditions set forth herein,
provided such Non-Employee Director remains a director immediately after such
annual meeting, unless such Non-Employee Director has elected not to receive
such Option by written notice delivered to the Board prior to the date of such
annual meeting.
6. OPTION PROVISIONS
Each Option shall be subject to the following terms and conditions:
(a) No Option shall be exercisable after the expiration of ten (10) years
from the date it was granted.
(b) An Option shall vest (i.e., become exercisable) with respect to each
optionee in sixteen (16) equal quarterly installments on the three, six, nine
and twelve month anniversaries of the date of grant of the Option, provided that
the optionee has, during the entire period prior to such vesting date,
continuously served as a Non-Employee Director of the Company, whereupon
Ex. A - 2
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such Option shall become fully exercisable in accordance with its terms with
respect to that installment of shares.
(c) The exercise price of each Option shall be one hundred percent (100%)
of the Fair Market Value of the Common Stock on the date such Option is granted.
The "Fair Market Value" shall mean, as of any date, the value of Common Stock
determined by the Board in good faith using such methods or procedures as may be
established from time to time by the Board. Unless otherwise determined by the
Board, the Fair Market Value of Common Stock as of any date shall be the mean
between the bid and asked quotations for the Common Stock on that date as
reported by the National Association of Securities Dealers Automated Quotation
System (NASDAQ) or, if there are no bid or asked quotations on such date, the
mean between the bid and asked quotations on the next preceding date for which
quotations are available. If the Common Stock is subsequently listed and traded
upon a recognized securities exchange or shall be quoted on a recognized
national market system, the Fair Market Value shall be the closing price on such
date or, if no closing price is so reported for that date, the closing price on
the next preceding date for which a closing price was reported.
(d) (i) In the event the optionee ceases to be a member of the Board for
any reason other than death or disability, any then unexercised Options
granted to such optionee shall, to the extent not then exercisable
pursuant to Section 6(b) above, be immediately terminated and become void,
and any Options which are then so exercisable but have not been exercised
at the time the optionee so ceases to be a member of the Board may be
exercised, only to the extent they are then exercisable, by the optionee
during the period ending on the earlier of (A) three (3) months from the
date the optionee so ceases to be a member of the Board or (B) the
expiration of the Option.
(ii) In the event that the optionee ceases to be a member of the
Board by reason of disability or death, any then unexercised Options
granted to such optionee shall, to the extent not then exercisable
pursuant to Section 6(b) above, be immediately terminated and become void,
and any Options which are then so exercisable but have not been exercised
at the time the optionee so ceases to be a member of the Board may be
exercised, only to the extent they are then exercisable, by the optionee
(or by the optionee's personal representative, heir or legatee, in the
event of death) during the period ending on the earlier of (A) six (6)
months from the date the optionee so ceases to be a member of the Board or
(B) the expiration date of the Option.
(e) Notwithstanding anything herein to the contrary, the right to exercise
Options granted hereunder shall be subject to the following limitations:
(i) Options may not be exercised unless the optionee, at the time he
exercises the Option, is a member of the Board, except as provided in
Sections 6(d)(i) and (ii) above.
(ii) No fractional shares may be purchased under Options granted
hereunder.
(f) Options may be exercised by giving written notice to the Company by
registered/certified mail, return receipt requested, postage prepaid or in
person addressed to the
Ex. A - 3
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Secretary, specifying the number of shares being purchased, accompanied by
payment of the full option price of the shares being purchased. Payment of the
option exercise price may be:
(i) in cash or by bank-certified, cashier's, or personal check;
(ii) by surrender of (or attestation to the ownership of) Common
Stock valued at Fair Market Value on the date new Common Stock is
purchased under the Plan; provided, however, that such surrender or
attestation shall not be permitted if such action would cause the Company
to recognize compensation expense (or additional compensation expense)
with respect to the Award for financial reporting purposes;
(iii) provided that a public market for the Common Stock then
exists: (A) through a "same day sale" commitment from the optionee and a
broker-dealer that is a member of the National Association of Securities
Dealers (a "NASD Dealer") whereby the optionee irrevocably elects to
exercise the Option and to sell a portion of the Common Stock so purchased
to pay for the exercise price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Common Stock to forward the exercise price
directly to the Company; (B) through a "margin" commitment from the
optionee and a NASD Dealer whereby the optionee irrevocably elects to
exercise the Option and to pledge the Common Stock so purchased to the
NASD Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the exercise price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Common Stock to forward the
exercise price directly to the Company; or (C) through any other "cashless
exercise" procedure approved by the Board; or
(iv) by any combination of the above, or any other method of payment
acceptable to the Board.
(g) Notwithstanding anything herein to the contrary, shares shall not be
issued with respect to an Option unless the exercise of such Option and the
issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the rules and
regulations promulgated thereunder and the requirements of any stock exchange or
quotation service upon which the shares may then be listed or quoted and shall
be further subject to the approval of counsel for the Company with respect to
such compliance.
As a condition to the exercise of an Option, the Company may require the
optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned applicable
provisions of law.
(h) No right or interest of an optionee in any Option may be pledged,
encumbered, or hypothecated to or in favor of any party other than the Company,
or shall be subject to any lien, obligation, or liability of such optionee to
any other party other than the Company. Except as otherwise provided below, no
Option shall be assignable or transferable by an optionee other
Ex. A - 4
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than by will or the laws of descent and distribution or, pursuant to a qualified
domestic relations order as defined in Section 414(p)(1)(A) of the Code or Title
I of the Employee Retirement Income Security Act, or the rules thereunder. The
Board may allow an optionee to assign or otherwise transfer all or a portion of
the rights represented by the Option to specified individuals or classes of
individuals, or to a trust benefiting such individuals or classes of
individuals, subject to such restrictions, limitations, or conditions as the
Board deems appropriate.
(i) The Company shall have the authority and the right to deduct or
withhold, or require an optionee to remit to the Company, an amount sufficient
to satisfy federal, state, and local taxes required by law to be withheld with
respect to any taxable event arising as a result of this Plan. With respect to
withholding required upon any taxable event relating to the issuance of Common
Stock under the Plan, optionees may elect (the "Election"), on or prior to the
date of such taxable event, to satisfy the withholding requirement, in whole or
in part, by having the Company withhold shares of Common Stock having a Fair
Market Value on the date of withholding equal to the amount to be withheld for
tax purposes. The Board may disapprove any Election or may suspend or terminate
the right to make Elections. An Election is irrevocable. The Board may, at the
time any Award is granted, require that any and all applicable tax withholding
requirements be satisfied by the withholding of shares of Common Stock as set
forth above.
7. COVENANTS OF THE COMPANY
During the terms of the Options granted under the Plan, the Company shall
keep available at all times the number of shares of Common Stock required to
satisfy such Options.
8. USE OF PROCEEDS FROM STOCK
Proceeds from the sale of Common Stock pursuant to Options granted under
the Plan shall constitute general funds of the Company.
9. NO RIGHTS TO SHARES OR DIRECTORSHIP
(a) Neither an optionee nor any person to whom an Option is transferred
under Section 6(h) shall be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any shares subject to such Option unless and
until such person has satisfied all requirements for exercise of the Option
pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant thereto
shall confer upon any Non-Employee Director any right to continue as a member of
the Board of Directors of the Company or shall affect any right of the Company,
its Board, or stockholders to terminate the service of any Non-Employee Director
with or without cause.
10. ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE
(a) General; Adjustments. In the event of a subdivision of the outstanding
Common Stock, a declaration of a dividend payable in Common Stock, a declaration
of a dividend payable in a form other than Common Stock in an amount that has a
material effect on the price of the Common Stock, a combination or consolidation
of the outstanding Common Stock (by
Ex. A - 5
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classification or otherwise) into a lesser number of shares of Common Stock, a
recapitalization, a spin-off or a similar occurrence, the Board shall make such
adjustments as it, in its sole discretion, deems appropriate in one or more of
(i) the number of shares of Common Stock available for future Options under
Section 3, (ii) the number and kind of shares of stock covered by each
outstanding Option or (iii) the exercise price under each outstanding Option.
Except as provided in this Section, an optionee shall have no rights by reason
of any issue by the Company of stock of any class or securities convertible into
stock of any class, any subdivision or consolidation of shares of stock of any
class, the payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously exercised,
Options shall terminate immediately prior to the dissolution or liquidation of
the Company.
(c) Acceleration; Change in Control. In its sole discretion, the Board may
waive or accelerate vesting of Options, or waive or extend expiration dates
(other than the final expiration date set forth in Section 6(a) above). In
addition, vesting shall automatically be deemed waived on the date which is
thirty (30) days prior to a "Change in Control". For purposes of this Agreement,
"Change of Control" means each of the following:
(i) Any transaction, or series of transactions, whereby any person
(as that term is used in Section 13 and 14(d)(2) of the Exchange Act,
excluding affiliates of the Company as of the effective date of such
transaction, is or becomes the beneficial owner (as that term is used in
Section 13(d) of the Exchange Act) directly or indirectly, of securities
of the Company representing fifty percent (50%) or more of the combined
voting power of the Company's then outstanding securities;
(ii) Any merger, consolidation, or liquidation of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which Common Stock would be converted into cash, securities,
or other property, other than a merger or consolidation with a wholly
owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change
in the stockholders of the Company and all then outstanding Options are
assumed by the successor corporation, which assumption shall be binding on
all optionees; or
(iii) The sale, transfer, or other disposition of all or
substantially all of the assets of the Company.
11. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN
(a) Amendments. With the approval of the Board, at any time and from time
to time, the Board may terminate, amend, or modify the Plan. However, without
approval of the stockholders of the Company (if required in accordance with the
Code, the Exchange Act, the rules and regulations thereunder or other applicable
law and rules), no such termination, amendment, or modification may:
(i) Materially increase the total number of shares of Common Stock
that may be issued under the Plan, except as provided in Section 10(a);
Ex. A - 6
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(ii) Materially modify the eligibility requirements for
participation in the Plan;
or
(iii) Materially increase the benefits accruing to optionees under
the Plan.
Any such termination, amendment, or modification shall comply with such other
requirements as may be required by the Code, by the rules under Section 16 of
the Exchange Act, by any national securities exchange or system on which the
Stock is listed or reported, or by a regulatory body having jurisdiction.
(b) Awards Previously Granted. No termination, amendment, or modification
of the Plan shall adversely affect in any material way any Option previously
granted under the Plan, without the written consent of the optionee.
12. MISCELLANEOUS
(a) Unfunded Status of Awards. The Plan is intended to be an "unfunded"
plan for incentive compensation. With respect to any payments not yet made to an
optionee pursuant to an Option, nothing contained in the Plan or any instrument
issued thereunder shall give the optionee any rights that are greater than those
of a general creditor of the Company.
(b) Securities Law Compliance. With respect to any person who is, on the
relevant date, obligated to file reports under Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Section 16 or its successors under the Exchange Act. To the extent
any provision of the Plan or any instrument issued thereunder or any action by
the Board fails to so comply, it shall be void to the extent required by law and
voidable as deemed advisable by the Board.
(c) Governing Law. The Plan and all instruments issued thereunder shall be
construed in accordance with and governed by the laws of the State of Arizona
without giving effect to the principles of conflicts of law.
(d) Nonexclusivity of the Plan. Neither the adoption of the Plan nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations upon the right and authority of the Board
to adopt such other incentive compensation arrangements (which arrangements may
be applicable either generally to a class or classes of individuals or
specifically to a particular individual or individuals) as the Board in its
discretion determines desirable, including, without limitation, the granting to
directors of stock options or other rights otherwise than under the Plan.
Ex. A - 7
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EXHIBIT "B"
NOTICE OF EXERCISE OF OPTION
TO PURCHASE SHARES OF
SALESLOGIX CORPORATION
AND RECORD OF STOCK TRANSFER
The undersigned hereby exercises the Option granted to it by SalesLogix
Corporation (the "Company") under the 1999 Non-Employee Director Stock Option
Plan (the "Plan"), subject to all the terms and provisions referred to in the
Plan, and notifies the Company of the undersigned's desire to purchase _______
shares of Common Stock of the Company which were offered to the undersigned
pursuant to said Option. Enclosed is (a) the undersigned's check in the sum of
$_______ in full payment for such shares.
The undersigned represents that he, she or it has read and fully
understand the Plan. The undersigned agrees to indemnify the Company and its
subsidiaries, together with their respective officers and directors, against any
and all liabilities, losses, damages and expenses (including reasonable attorney
fees) arising from or in connection with any disposition of the shares hereby
being acquired, or any interest therein, in violation of applicable securities
laws or regulations.
Dated:_______________
________________________________
Print Name:_____________________
Ex. B - 1
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Receipt is hereby acknowledged of the delivery to the undersigned by
SalesLogix Corporation on _______ of stock certificates for _______ shares of
Common Stock purchased by the undersigned pursuant to the terms and conditions
of the Plan referred to above, which shares were transferred to the undersigned
on SalesLogix Corporation's stock record books on
_____________________________.
________________________________
Print Name:_____________________
Ex. B - 2