Exhibit 10.16
ASTEA INTERNATIONAL INC.
INCENTIVE STOCK OPTION AGREEMENT
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UNDER 1998 STOCK OPTION PLAN
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ASTEA INTERNATIONAL INC., a Delaware corporation (the "Company"),
hereby grants this _______day of _________, 199__ (the "Grant Date"), to
____________ (the "Employee"), an option to purchase a maximum of ___________
shares (the "Option Shares") of its Common Stock, $.01 par value (the "Common
Stock"), at the price of $_____ per share, on the following terms and
conditions:
1. GRANT UNDER 1998 STOCK OPTION PLAN. This option (the "Option") is
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granted pursuant to and is governed by the Company's 1998 Stock Option Plan (the
"Plan") and, unless the context otherwise requires, terms used herein shall have
the same meaning as in the Plan. Determinations made in connection with this
Option pursuant to the Plan shall be governed by the Plan as it exists on this
date.
2. GRANT AS INCENTIVE STOCK OPTION; OTHER OPTIONS. This Option is
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intended to qualify as an incentive stock option under Section 422 of the
Internal Revenue Code of 1986 (the "Code"). This Option is in addition to any
other options heretofore or hereafter granted to the Employee by the Company,
but a duplicate original of this instrument shall not effect the grant of
another option.
3. EXTENT OF OPTION IF EMPLOYMENT CONTINUES. If the Employee has
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continued to be employed by the Company (or any affiliated corporation) on the
following dates, this Option may be exercised for the number of shares set
opposite the applicable date, subject to the provisions of Section 14(b) hereof:
Prior to the first anniversary of the - 0% of the total Option
Grant Date Shares
One year but less than two years from - an additional 25% of the
the Grant Date total Option Shares
Two years but less than three years from - an additional 25% of the
the Grant Date total Option Shares
Three years but less than four years - an additional 25% of the
from the Grant Date total Option Shares
Four years from the Grant Date - an additional 25% of the
total Option Shares
The foregoing rights are cumulative and, while the Employee continues
to be employed by the Company, may be exercised up to and including the date
which is ten (10) years from the date this Option is granted. All of the
foregoing rights are subject to Sections 4, 5 and 18, as appropriate, if the
Employee ceases to be employed by the Company or dies or becomes disabled while
in the employ of the Company.
4. TERMINATION OF EMPLOYMENT. If the Employee ceases to be employed
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by the Company (or any affiliated corporation), other than by reason of death or
disability as defined in Section 5, no further installments of this Option shall
become exercisable and this Option shall terminate after the passage of ninety
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(90) days from the date employment ceases, but in no event later than the
scheduled expiration date. In such a case, the Employee's only rights hereunder
shall be those which are properly exercised before the termination of this
Option.
5. DEATH; DISABILITY. If the Employee dies while in the employ of
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the Company (or any affiliated corporation), this Option may be exercised, to
the extent of the number of Option Shares with respect to which the Employee
could have exercised it on the date of his or her death, by his or her estate,
personal representative or beneficiary or family member to whom this Option has
been gifted pursuant to Section 10, at any time within 180 days after the date
of death, but not later than the scheduled expiration date. If the Employee
ceases to be employed by the Company by reason of his or her disability (as
defined in the Plan), this Option may be exercised, to the extent of the number
of Option Shares with respect to which he or she could have exercised it on the
date of the termination of his or her employment, at any time within 180 days
after such termination, but not later than the scheduled expiration date. At
the expiration of such 180-day period or the scheduled expiration date,
whichever is the earlier, this Option shall terminate and the only rights
hereunder shall be those as to which the Option was properly exercised before
such termination.
6. PARTIAL EXERCISE. Exercise of this Option up to the extent above
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stated may be made in part at any time and from time to time within the above
limits, except that this Option may not be exercised for a fraction of a share
unless such exercise is with respect to the final installment of Option Shares
subject to this Option and a fractional share (or cash in lieu thereof) must be
issued to permit the Employee to exercise completely such final installment.
Any fractional share with respect to which an installment of this Option cannot
be exercised because of the limitation contained in the preceding sentence shall
remain subject to this Option and shall be available for later purchase by the
Employee in accordance with the terms hereof.
7. PAYMENT OF PRICE. The Option price is payable in United States
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dollars only and must be paid:
(a) in cash or by personal check, or any combination of the
foregoing, equal in amount to the Option price; or
(b) in the discretion of the Board of Directors, in cash, by
personal check, by delivery of shares of the Company's Common Stock having an
aggregate fair market value (as determined by the Board of Directors) equal to
the Option price as of the date of exercise, by delivery of a personal recourse
promissory note, through the delivery of an assignment to the Company of a
sufficient amount of the proceeds from the sale of the Common Stock acquired
upon exercise of the Option and an authorization to the broker or selling agent
to pay that amount to the Company, which sale shall be at the Employee's
direction at the time of exercise, or by any combination of the foregoing, equal
in amount to the Option price.
Notwithstanding the foregoing, the Employee may not pay any part of
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the exercise price for the Option by transferring shares of Common Stock to the
Company if such Common Stock is both subject to a substantial risk of forfeiture
and not transferable within the meaning of Section 83 of the Code.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this
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Option, the Employee agrees that a purchase of Option Shares under this Option
will not be made with a view to their distribution, as that term is used in the
Securities Act of 1933, as amended (the "Securities Act"), unless in the opinion
of counsel to the Company such distribution is in compliance with or exempt from
the registration and prospectus requirements of the Securities Act and
applicable state securities laws, and the Employee agrees to sign a certificate
to such effect at the time of exercising this Option and agrees that the
certificate for the Option Shares so purchased may be inscribed with a legend to
ensure compliance with the Securities Act and applicable state securities laws.
THIS SECTION SHALL NOT APPLY IN THE EVENT THE SHARES OF COMMON STOCK
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ISSUABLE UPON EXERCISE OF THIS OPTION HAVE BEEN REGISTERED ON A REGISTRATION
STATEMENT ON FORM S-8 WHICH IS EFFECTIVE AND CURRENT UNDER THE SECURITIES ACT.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions
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of this Agreement, this Option may be exercised by written notice to the Vice
President and General Counsel of the Company, at its Bedford, Massachusetts
office, or to such transfer agent as the Company shall designate. Such notice
shall state the election to exercise this Option and the number of Option Shares
in respect of which it is being exercised and shall be signed by the person or
persons so exercising this Option. Such notice shall be accompanied by payment
of the full purchase price of such Option Shares, and the Company or its
transfer agent shall deliver a certificate or certificates representing such
Option Shares as soon as practicable after the notice shall be received. The
certificate or certificates for the Option Shares as to which this Option shall
have been so exercised shall be registered in the name of the person or persons
so exercising this Option (or, if this Option shall be exercised by the Employee
and if the Employee shall so request in the notice exercising this Option, shall
be registered in the name of the Employee and another person jointly, with right
of survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this Option. In the event this Option
shall be exercised, pursuant to Section 5 hereof, by any person or persons other
than the Employee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this Option. All Option Shares that
shall be purchased upon the exercise of this Option as provided herein shall be
fully paid and non-assessable.
10. OPTION NOT TRANSFERABLE. This Option is not transferable or
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assignable except (a) to member of Employee's immediate family pursuant to a
bona fide gift or (b) by will or by the laws of descent and distribution.
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During the Employee's lifetime only the Employee or a donee who is a member of
Employee's immediate family can exercise this Option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of
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this Option imposes no obligation on the Employee to exercise it.
12. NO OBLIGATION TO CONTINUE EMPLOYMENT. The Company and any
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affiliated corporations are not by the Plan or this Option obligated in any
manner to continue the Employee in its employment.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Employee shall have
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no rights as a stockholder with respect to Option Shares subject to this
Agreement until a stock certificate therefor has been issued to the Employee and
is fully paid for by the Employee. Except as is expressly provided in the Plan
with respect to certain changes in the capitalization of the Company, no
adjustment shall be made for dividends or similar rights for which the record
date is prior to the date such stock certificate is issued.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. (a) It is the purpose
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of this Option to encourage the Employee to work for the best interests of the
Company and its stockholders. Because, for example, that might require the
issuance of a stock dividend or stock split, or a merger with another
corporation, the purpose of this Option would not be served if such a stock
dividend, stock split, merger or similar occurrence would cause the Employee's
rights hereunder to be diluted or terminated and thus be contrary to the
Employee's interest. The Plan contains extensive provisions designed to
preserve options at full value in a number of contingencies. Therefore,
provisions in the Plan for adjustment with respect to stock subject to options
and the related provisions with respect to successors to the business of the
Company are hereby made applicable hereunder and are incorporated herein by
reference. In the event of any stock dividend, stock split, recapitalization or
other change in the capital structure of the Company, this Option and the Option
price shall be equitably adjusted and, in lieu of issuing fractional shares upon
exercise thereof, this Option (and the corresponding Option Shares) shall be
rounded upward or downward to the nearest whole share (rounding upward for all
amounts equal to or in excess of .51). In particular, without affecting the
generality of the
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foregoing, it is understood that for the purposes of Sections 3 through 5
hereof, both inclusive, employment by the Company includes employment by any
affiliated corporation.
(b) If (i) the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or (ii) if one or more corporations is merged into the Company or
there is a consolidation of the Company and one or more corporations in which
the Company is the surviving corporation and, in either such case, shares of
common stock of the Company are converted into cash, securities or other
property other than shares of common stock of the Company, or (iii) if the
Company is liquidated, or sells or otherwise disposes of substantially all it
assets to another corporation or (iv) a person, entity or group (other than ▇▇▇▇
▇▇▇▇▇▇▇▇ and his affiliates) acquires 50% or more of the voting shares of the
Company through a successful tender offer or otherwise, then, as of the
effective date of such transaction, this Option shall become fully vested and
exercisable.
15. DISQUALIFYING DISPOSITION. The Employee agrees to notify the
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Company in writing immediately after the Employee makes a Disqualifying
Disposition of any Option Shares received pursuant to the exercise of this
Option. A Disqualifying Disposition is any disposition (including any sale) of
such Option Shares before the later of (a) two years after the date the Employee
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was granted this Option, or (b) one year after the date the Employee acquired
Option Shares by exercising this Option. The Employee also agrees to provide
the Company with any information which it shall request concerning any such
Disqualifying Disposition. The Employee acknowledges that pursuant to United
States tax laws, he or she will forfeit the favorable income tax treatment
otherwise available with respect to the exercise of an incentive stock option if
he or she makes a Disqualifying Disposition of the Option Shares received on
exercise of this Option.
16. WITHHOLDING TAXES. If the Company in its discretion determines
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that it is obligated to withhold tax with respect to a Disqualifying Disposition
(as defined in Section 15) of Common Stock received on exercise of this Option,
the Employee hereby agrees that the Company may withhold from the Employee's
wages the appropriate amount of federal, state and local withholding taxes
attributable to such Disqualifying Disposition. If any portion of this Option
is treated as a non-qualified option, the Employee hereby agrees that the
Company may withhold from the Employee's wages the appropriate amount of
federal, state and local withholding taxes attributable to the Employee's
exercise of such non-qualified option. At the Company's discretion, the amount
required to be withheld may be withheld in cash from such wages, or in kind
(with respect to compensation income attributable to the exercise of this
Option) from the Common Stock otherwise deliverable to the Employee on exercise
of this Option. The Employee further agrees that, if the Company does not
withhold an amount from the Employee's wages sufficient to satisfy the Company's
withholding obligation, the Employee will reimburse the Company on demand, in
cash, for the amount underwithheld.
17. [THIS SECTION INTENTIONALLY OMITTED].
18. NO EXERCISE OF OPTION IF EMPLOYMENT TERMINATED FOR CAUSE. If the
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employment of the Employee is terminated for "Cause," this Option shall
terminate on the date of such termination of employment and this Option shall
thereupon not be exercisable to any extent whatsoever. "Cause" is conduct, as
determined by the Board of Directors, involving one or more of the following:
(i) gross misconduct by the Employee which is materially injurious to the
Company; or (ii) the commission of an act of embezzlement, fraud or deliberate
disregard of the rules or policies of the Company which results in material
economic loss, damage or injury to the Company; or (iii) the unauthorized
disclosure of any trade secret or confidential information of the Company or any
third party who has a business relationship with the Company or the violation of
any noncompetition covenant or assignment of inventions obligation with the
Company; or (iv) the commission of an act which induces any customer or
prospective customer of the Company to break a contract with the Company or to
decline to do business with the Company; or (v) the conviction of the Employee
of a felony involving any financial impropriety or which would materially
interfere with the Employee's ability to perform
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his or her services or otherwise be injurious to the Company; or (vi) the
failure of the Employee to perform in a material respect his or her employment
obligations without proper cause. In making such determination, the Board of
Directors shall act fairly and in utmost good faith. For the purposes of this
Section 18, termination of employment shall be deemed to occur when the Employee
receives notice that his employment is terminated.
19. GOVERNING LAW. This Agreement shall be governed by and
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interpreted in accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF the Company and the Employee have caused this
instrument to be executed, and the Employee whose signature appears below
acknowledges receipt of a copy of the Plan and acceptance of an original copy of
this Agreement.
______________________________ ASTEA INTERNATIONAL INC.
SIGNATURE OF EMPLOYEE
______________________________ By:____________________________
[NAME] ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Vice President and General Counsel
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Street Address
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City State Zip Code