<PAGE> 1
As filed with the Securities and Exchange Commission on May 30, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
I2 TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2294945
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
909 E. LAS COLINAS BLVD., 16TH FLOOR
IRVING, TEXAS 75039
(Address of principal executive offices) (Zip Code)
----------
THINK SYSTEMS CORPORATION
-------------------------
1997 INCENTIVE STOCK OPTION PLAN
1996 INCENTIVE STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTIONS GRANTS TO
M.R. RANGASWAMI, J. HORING, S.R. TUNGARE, R.B. REDDY, R. SWAMINATHAN
OPTIMAX SYSTEMS CORPORATION
---------------------------
STOCK OPTION PLAN
(Full title of the Plans)
----------
DAVID F. CARY
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
I2 TECHNOLOGIES, INC.
909 E. LAS COLINAS BLVD., 16TH FLOOR
IRVING, TEXAS 75039
(214) 860-6000
(Name, address including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ------------
<S> <C> <C> <C> <C>
THINK SYSTEMS CORPORATION
1997 Incentive Stock Option Plan
Options to purchase Common Stock 276,247 N/A N/A N/A
Common Stock, $0.00025 par value 276,247 shares $2.62 $723,767.00 $219.00
1996 Incentive Stock Option Plan
Options to purchase Common Stock 501,508 N/A N/A N/A
Common Stock, $0.00025 par value 501,508 shares $1.58 $792,383.00 $240.00
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ------------
<S> <C> <C> <C> <C>
Non-Qualified Stock Options
Options to purchase Common Stock:
M.R. Rangaswami 4,298 N/A N/A N/A
J. Horing 10,030 N/A N/A N/A
S.R. Tungare 17,195 N/A N/A N/A
R.B. Reddy 17,195 N/A N/A N/A
R. Swaminathan 22,927 N/A N/A N/A
Common Stock, $0.00025 par value:
M.R. Rangaswami 4,298 shares $2.20 $ 9,456.00 $ 3.00
J. Horing 10,030 shares $2.20 $22,066.00 $ 7.00
S.R. Tungare 17,195 shares $2.20 $37,829.00 $12.00
R.B. Reddy 17,195 shares $2.20 $37,829.00 $12.00
R. Swaminathan 22,927 shares $0.88 $20,176.00 $ 6.00
OPTIMAX SYSTEMS CORPORATION
Stock Option Plan
Options to purchase Common Stock 106,685 N/A N/A N/A
Common Stock, $0.00025 par value 106,685 shares $2.82 $300,852.00 $91.00
Aggregate filing fee: $590.00
</TABLE>
- ----------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Think Systems Corporation
1997 Incentive Stock Option Plan, 1996 Incentive Stock Option Plan, the
Non-Qualified Stock Options granted to Messrs. Rangaswami, Horing,
Tungare, Reddy and Swaminathan and the Optimax Systems Corporation
Stock Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of i2 Technologies, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price for the shares.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
i2 Technologies, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, filed with the SEC on February
4, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997, filed with the SEC on May 14,
1997;
(c) The Registrant's Report on Form 8-K dated May 15, 1997; and
(d) The Registrant's Registration Statement No. 00-28030 on Form
8-A filed with the SEC on March 20, 1996 pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), in which there is described the terms, rights and
provisions applicable to the Registrant's outstanding Common
Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by right of the
<PAGE> 4
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect to any claim issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful on the merits or otherwise in the defense
of any such action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 or in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that the indemnification provided for
by Section 145 shall not be deemed exclusive of any other rights which the
indemnified party may be entitled; that indemnification provided by Section 145
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of such person's heirs, executors and administrators; and
empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law or the State of
Delaware provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of the director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article Eleventh of the Registrant's Charter provides that, to the
fullest extent permitted by the Delaware General Corporation Law as the same
exists or as it may hereafter be amended, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director.
Section 6.1 of the Registrant's Bylaws further provides that the
Registrant shall, to the maximum extent and in the manner permitted by the
General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the Registrant.
The Registrant has entered into indemnification agreements with each of
its directors and officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Number Exhibit
------ -------
<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-28030 on
Form 8-A which is incorporated herein by reference pursuant to
Item 3(d).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Think Systems Corporation 1997 Incentive Stock Option Plan.
</TABLE>
II-2.
<PAGE> 5
<TABLE>
<S> <C>
99.2 Form of Stock Option Agreement for Think Systems Corporation
1997 Incentive Stock Option Plan.
99.3 Think Systems Corporation 1996 Incentive Stock Option Plan.
99.4 Form of Stock Option Agreement for Think Systems Corporation
1996 Incentive Stock Option Plan.
99.5 Form of Stock Option Assumption Agreement for Think Systems
Corporation 1996 Incentive Stock Option Plan and 1997
Incentive Stock Option Plan.
99.6 Form of Non-Qualified Stock Option Agreement for Options
granted to Messrs. Rangaswami, Horing, Tungare and Reddy.
99.7 Form of Stock Option Assumption Agreement for Options granted
to Messrs. Rangaswami, Horing, Tungare and Reddy.
99.8 Form of Non-Qualified Stock Option Agreement for Option
granted to Mr. Swaminathan.
99.9 Form of Stock Option Assumption Agreement for Option granted
to Mr. Swaminathan.
99.10 Optimax Systems Corporation Stock Option Plan.
99.11 Form of Non-Qualified Stock Option Agreement under Optimax
Systems Corporation Stock Option Plan.
99.12 Form of Stock Option Assumption Agreement for Optimax Systems
Corporation Stock Option Plan.
</TABLE>
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and (3) to
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the Think
Systems Corporation 1997 Incentive Stock Option Plan, 1996 Incentive Stock
Option Plan, the Non-Qualified Stock Options granted to Messrs. Rangaswami,
Horing, Tungare, Reddy and Swaminathan and the Optimax Systems Corporation Stock
Option Plan
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers, or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the 1933 Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-3.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas on this 28th
day of May 1997.
I2 TECHNOLOGIES, INC.
By: /s/ Sanjiv S. Sidhu
-----------------------------------
Sanjiv S. Sidhu
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of i2
Technologies, Inc., a Delaware corporation, do hereby constitute and appoint
Sanjiv S. Sidhu and David F. Cary and each of them, the lawful attorneys-in-fact
and agents with full power and authority to do any and all acts and things and
to execute any and all instruments which said attorneys and agents, and any one
of them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Sanjiv S. Sidhu
- --------------------- Chairman of the Board May 28, 1997
Sanjiv S. Sidhu and Chief Executive Officer
(Principal Executive Officer)
- ---------------------- Vice Chairman of the Board, May __, 1997
Kanna N. Sharma Executive Vice President and
Secretary
</TABLE>
II-4.
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ David F. Cary
- ----------------------- Vice President and Chief May 28, 1997
David F. Cary Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Harvey B. Cash
- ----------------------- Director May 28, 1997
Harvey B. Cash
/s/ Thomas J. Meredith
- ----------------------- Director May 28, 1997
Thomas J. Meredith
/s/ Sandeep R. Tungare
- ----------------------- Director May 28, 1997
Sandeep R. Tungare
</TABLE>
II-5.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Exhibit
------ -------
<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-28030 on
Form 8-A which is incorporated herein by reference pursuant to
Item 3(d).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Think Systems Corporation 1997 Incentive Stock Option Plan.
99.2 Form of Stock Option Agreement for Think Systems Corporation
1997 Incentive Stock Option Plan.
99.3 Think Systems Corporation 1996 Incentive Stock Option Plan.
99.4 Form of Stock Option Agreement for Think Systems Corporation
1996 Incentive Stock Option Plan.
99.5 Form of Stock Option Assumption Agreement for Think Systems
Corporation 1996 Incentive Stock Option Plan and 1997
Incentive Stock Option Plan.
99.6 Form of Non-Qualified Stock Option Agreement for Options
granted to Messrs. Rangaswami, Horing, Tungare and Reddy.
99.7 Form of Stock Option Assumption Agreement for Options granted
to Messrs. Rangaswami, Horing, Tungare and Reddy.
99.8 Form of Non-Qualified Stock Option Agreement for Options
granted to Mr. Swaminathan.
99.9 Form of Stock Option Assumption Agreement for Options granted
to Mr. Swaminathan.
99.10 Optimax Systems Corporation Stock Option Plan.
99.11 Form of Non-Qualified Stock Option Agreement under Optimax
Systems Corporation Stock Option Plan.
99.12 Form of Stock Option Assumption Agreement for Optimax Systems
Corporation Stock Option Plan.
</TABLE>
<PAGE> 1
EXHIBIT 5
Opinion and Consent of Brobeck, Phleger & Harrison LLP
May 29, 1997
i2 Technologies, Inc.
909 E. Las Colinas Blvd.
16th Floor
Irving, Texas 75039
Re: Registration Statement for Offering of
an aggregate of 956,085 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 276,247 shares
of the Common Stock of i2 Technologies, Inc. (the "Company") under the Think
Systems Corporation 1997 Incentive Stock Option Plan, (ii) 501,508 shares of the
Company's Common Stock under the Think Systems Corporation 1996 Incentive Stock
Option Plan, (iii) 106,685 shares of the Company's Common Stock under the
Optimax Systems Corporation Stock Option Plan, and (iv) 71,645 shares in the
aggregate of the Company's Common Stock pursuant to non-qualified stock options
granted to Messrs. Rangaswami, Horing, Tungare, Reddy and Swaminathan. We advise
you that, in our opinion, when such shares have been issued and sold pursuant to
the applicable provisions of the above-referenced plans and options and in
accordance with the Registration Statement, such shares will be duly authorized,
validly issued, fully paid and non-assessable shares of the Company's Common
Stock.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
------------------------------------
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the registration of i2 Technologies, Inc. common stock under
the Stock Option Plans of Think Systems Corporation and Optimax Systems
Corporation of our report dated January 18, 1997 with respect to the
consolidated financial statements of i2 Technologies, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/S/ Ernst & Young LLP
Dallas, Texas
May 28, 1997
<PAGE> 1
EXHIBIT 99.1
THINK SYSTEMS CORPORATION
1997 INCENTIVE STOCK OPTION PLAN
As Adopted January 1, 1997
1. Purpose. The purpose of this plan is to advance the
interests of Think Systems Corporation by providing an opportunity to selected
key employees, directors and consultants of the Company, its Subsidiaries and
affiliates to purchase shares of Common Stock through the exercise of options
granted pursuant to this Plan, which may be either Incentive Options or
Nonqualified Options. By encouraging such stock ownership, the Company seeks
to establish as close an identity as feasible between the interests of the
Company and its Subsidiaries and those of such key employees, directors and
consultants and also seeks to attract, retain, motivate and reward employees,
directors and consultants of superior ability, training and experience.
2. Definitions.
(1) Board means the Board of Directors of the
Company.
(2) Code means the Internal Revenue Code of 1986
and regulations thereunder, as amended from time to time.
(3) Committee means the committee appointed by
the Board responsible for administering the Plan in accordance with Section 5.
(4) Common Stock means the no par value common
stock of the Company.
(5) Company means Think Systems Corporation, a
New Jersey corporation.
(6) Director means each individual who is serving
as a member of the Board as of the time of reference.
(7) Employee means an employee of the Company or
any Subsidiary within the meaning of Code Section 3401(c); "key employee" means
an employee who is determined by the Committee to be providing valuable
services to the Company or any Subsidiary and who is eligible to be granted
Incentive Options under the Plan.
(8) Exchange Act means the Securities Exchange
Act of 1934 and the rules and regulations promulgated pursuant thereto, as
amended from time to time.
(9) Incentive Option means a stock option
intended to qualify as an "incentive stock option" within the meaning of Code
Section 422 and designated as such.
<PAGE> 2
(10) Nonqualified Option means a stock option not
intended to be an Incentive Option and designated as a nonqualified stock
option, the federal income tax treatment of which is determined generally under
Code Section 83.
(11) Option means either an Incentive Option or a
Nonqualified Option granted pursuant to this Plan.
(12) Plan means this Think Systems Corporation
1997 Incentive Stock Option Plan as set forth herein, and as amended from time
to time.
(13) Publicly Traded means the Common Stock of the
Company is listed or admitted to unlisted trading privileges on a national
securities exchange or as to which sales or bid and offer quotations are
reported in the automated quotation system ("NASDAQ") by the National
Association of Securities Dealers Inc. ("NASD").
(14) Securities Act means the Securities Act of
1933 and rules and regulations promulgated pursuant thereto, as amended from
time to time.
(15) Subsidiary means a "subsidiary" of the
Company within the meaning of Code Section 424(f), which generally is defined
as any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if, at the relevant time, each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
3. Effective Date. This Plan was approved and adopted
by the Board on January 2, 1997. The effective date of the Plan shall be
January 1, 1997, so long as the Plan is approved by the stockholders of the
Company within 12 months of such date.
4. Stock Subject to Plan. The maximum aggregate number
of shares of Common Stock that may be made subject to Options granted hereunder
is 1,000,000 shares, which number shall be adjusted in accordance with Section
8 in the event of any change in the Company's capital structure. Shares of
Common Stock issued pursuant to the Plan may consist, in whole or in part, of
either authorized and unissued shares or issued shares held in the Company's
treasury. Any shares subject to an Option that for any reason expires or is
terminated unexercised as to such shares may again be the subject of an Option
under the Plan.
5. Administration. The Plan shall be administered by a
Committee appointed by the Board consisting of not fewer than two individuals
who are Directors. The Board shall have the discretion to remove and appoint
members of the Committee from time to time. The Committee shall have full
power and discretion, subject to the express provisions of the Plan, (i) to
determine the persons to whom Options are to be granted, the time or times at
which Options are to be granted, the number of shares of Common Stock
2.
<PAGE> 3
to be made subject to each Option, whether each Option is to be an Incentive
Option or a Nonqualified Option, the exercise price per share under each
Option, and the maximum term of each Option; (ii) to interpret and construe the
Plan and to prescribe, amend and rescind rules and regulations for its
administration; (iii) to determine the terms and provisions of each option
agreement, which need not be identical, evidencing an Option; and (iv) to make
all other determinations the Committee deems necessary or advisable for
administering the Plan. All decisions of the Committee shall be made by a
majority of its members, which shall constitute a quorum, and shall be
reflected in minutes of its meetings. The Board shall have the power to act in
lieu of the Committee.
6. Eligibility. Options may be granted to such persons
as the Committee selects. A person who is a key employee is eligible to
receive Incentive Options pursuant to this Plan; a person who is not an
Employee is not eligible to receive Incentive Options.
7. Terms and Conditions of Options. Options granted
pursuant to the Plan shall be evidenced by stock option agreements, which need
not be identical, in such form and containing such terms and conditions as the
Committee shall determine. If an Employee to whom an Option is granted does
not execute an option agreement evidencing that Option in the form prescribed
by the Committee within a reasonable period of time after the receipt of the
option agreement as specified by the Committee, the Option shall be void and of
no further force or effect. Each option agreement evidencing an Option shall
contain among its terms and conditions the following:
(1) Price. Subject to the conditions on
Incentive Options contained in Section 8(2), if applicable, the purchase price
per share of Common Stock payable upon the exercise of each Option granted
hereunder shall be as determined by the Committee in its discretion but shall
not be less than the fair market value of the Common Stock on the day the
Option is granted if an Incentive Option. The fair market value of Common
Stock shall be as determined by the Committee in its discretion in accordance
with any applicable laws or rules.
(2) Number of Shares and Kind of Option. Each
option agreement shall specify the number of shares to which it pertains and
shall specify whether the Option is a Nonqualified Option or an Incentive
Option.
(3) Terms of Exercise. Subject to the conditions
on Incentive Options contained in Section 8(2), if applicable, and to Section
10, each Option shall be exercisable for the full amount or for any part
thereof and at such intervals or in such installments as the Committee may
determine at the time it grants such Option; provided, however, that (i) no
Option shall be exercised as to fewer than 100 shares of Common Stock or, if
less, the total number of shares of Common Stock remaining unexercised under
the Option, and (ii) no Option shall be exercisable with respect to any shares
earlier than six months from the date the Option is granted or later than ten
years after the date the Option
3.
<PAGE> 4
is granted, except to the extent permitted in the event of the death or
disability of the holder of a Nonqualified Option under Section 7(7).
(4) Notice of Exercise and Payment. An Option
shall be exercisable only by delivery of a written notice to the Company's
Treasurer, or any other officer of the Company the Committee designates to
receive such notices, specifying the number of shares of Common Stock for which
the Option is being exercised. If the shares of Common Stock acquired upon
exercise of an Option are not at the time of exercise effectively registered
under the Securities Act, the optionee shall provide to the Company, as a
condition to the optionee's exercise of the Option, a letter, in form and
substance satisfactory to the Company, to the effect that the shares are being
purchased for the optionee's own account for investment and not with a view to
distribution or resale, and to such other effects as the Company deems
necessary or appropriate to comply with federal and applicable state securities
laws. Payment shall be made in full at the time the Option is exercised.
Payment shall be made by:
(i) cash;
(ii) delivery and assignment to the Company of
shares of Common Stock owned by the optionee;
(iii) delivery of a written exercise notice,
including irrevocable instructions to the Company directing the Company to
withhold so many of the shares of Common Stock that would otherwise have been
delivered upon the exercise of the Option as equals the number of shares of
Common Stock that would have been transferred to the Company if the purchase
price had been paid with shares of Common Stock owned by the optionee;
(iv) a combination of (i), (ii) and (iii); or
(v) delivery of a written exercise notice,
including irrevocable instructions to the Company to deliver the stock
certificates issuable upon exercise of the Option directly to a broker named in
the notice that has agreed to participate in a "cashless" exercise on behalf of
the optionee;
except that payment pursuant to subparagraphs (ii) through (v) above shall be
permitted only if the shares of Common Stock of the Company are Publicly
Traded.
Upon the optionee's satisfaction of all conditions required for the exercise of
the Option and payment in full of the purchase price for the shares being
acquired, the Company shall, within a reasonable period of time following such
exercise, deliver a certificate representing the shares of Common Stock so
acquired; provided, that the Company may postpone issuance and delivery of
shares upon any exercise of an Option to the extent necessary or
4.
<PAGE> 5
advisable to comply with applicable exchange listing requirements, NASD
requirements, or federal or state securities laws.
(5) Withholding Taxes. The Company's obligation
to deliver shares of Common Stock upon exercise of an Option, in whole or in
part, shall be subject to the optionee's satisfaction of all applicable
federal, state and local tax withholding obligations.
(6) Nontransferability of Option. No Option
shall be transferable by the optionee otherwise than by will or the laws of
descent and distribution and shall be exercisable during the optionee's
lifetime only by the optionee (or the optionee's guardian or legal
representative).
(7) Termination of Options. Each option
agreement evidencing an Option shall contain provisions setting forth the
date(s) on which the Option will terminate if the optionee ceases to be an
employee, director or consultant of the Company by reason of death, disability,
retirement or otherwise.
(8) Legends. Any restriction on transfer of
shares of Common Stock provided in this Plan or in the option agreement
evidencing any Option shall be noted or referred to conspicuously on each
certificate evidencing such shares.
(9) Shareholders' Agreement. An option agreement
evidencing an Option may provide that, in consideration for the grant of the
option, the Optionee shall agree that upon exercise of the Option, in whole or
in part, that the Optionee shall enter into and be bound by such terms and
provisions of a shareholders' agreement as the Committee shall determine.
8. Restrictions on Incentive Options. Incentive Options
(but not Nonqualified Options) granted under this Plan shall be subject to the
following restrictions:
(1) Limitation on Number of Shares. The
aggregate fair market value, determined as of the date an Incentive Option is
granted, of the shares with respect to which Incentive Options are exercisable
for the first time by an Employee during any calendar year shall not exceed
$100,000. If an Incentive Option is granted pursuant to which the aggregate
fair market value of shares with respect to which it first becomes exercisable
in any calendar year by an Employee exceeds the aforementioned $100,000
limitation, the portion of such Option which is in excess of the $100,000
limitation shall be treated as a Nonqualified Option pursuant to Code Section
422(d)(1). In the event that an Employee is eligible to participate in any
other stock option plan of the Company or a Subsidiary which is also intended
to comply with the provisions of Code Section 422, the $100,000 limitation
shall apply to the aggregate number of shares for which Incentive Options may
be granted under all such plans.
5.
<PAGE> 6
(2) 10% Stockholder. If an Employee to whom an
Incentive Option is granted pursuant to the provisions of the Plan is on the
date of grant the owner of stock (as determined under Code Section 424(d))
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or a Subsidiary, then the following special provisions
shall be applicable to the Incentive Option granted to such individual;
(i) The Option price per share
subject to such Incentive Option shall not be
less than 110% of the fair market value of
one share on the date of grant; and
(ii) The Incentive Option shall
not have a term in excess of five (5) years
from its date of grant.
9. Adjustment for Changes in Capitalization.
Appropriate and equitable adjustment shall be made in the maximum number of
shares of Common Stock subject to the Plan under Section 4 and, subject to
Section 10, in the number, kind and option price of shares of Common Stock
subject to then outstanding Options to give effect to any changes in the
outstanding Common Stock by reason of any stock dividend, stock split, stock
combination, merger, consolidation, reorganization, recapitalization or any
other change in the capital structure of the Company affecting the Common Stock
after the effective date of the Plan.
10. Change in Control; Merger, Etc.
(1) Change in Control. Subject to the
determination of the Committee, an Option may provide that upon the occurrence
of any of the events listed below, the exercisability of all or some of the
outstanding Incentive Options and Nonqualified Options held by an optionee
pursuant to this Plan shall be accelerated and such Options shall become
immediately exercisable in full. The events are as follows:
(i) The sale by the Company of
all or substantially all of its assets;
(ii) Any of the following events
if, immediately following such event, a
majority of the Directors consists of persons
who were not Directors immediately prior to
the date of such event;
(a) the sale of 50% or more of the
outstanding shares of Common Stock
of the Company in a single
transaction;
6.
<PAGE> 7
(b) the consummation of a tender
offer (by a party other than the
Company) for more than 50% of the
outstanding shares of Common Stock
of the Company; or
(c) subject to Section 10(2) below,
the consummation of a merger or
consolidation involving the Company;
or
(iii) An election of new Directors
if immediately following such election a
majority of the Directors consists of persons
who were not nominated by the Board or the
nominating committee thereof to stand for
election as Directors in such election.
(2) Where Company Does Not Survive. In the event
of a merger or consolidation to which the Company is a party but is not the
surviving company, the Committee in its discretion may vote to negate and give
no effect to the acceleration of Options pursuant to Section 10(1)(ii)(c), but
only if and to the extent that an executed agreement of merger or consolidation
provides that the optionee holding such an Option shall receive the same merger
consideration as the optionee would have received as a stockholder of the
Company had the exercisability of the Option been accelerated in accordance
with Section 10(1)(ii)(c) and had the optionee, immediately prior to the merger
or consolidation, exercised the Option for the full number of shares subject
thereto, paid the exercise price in full, and satisfied all other conditions
for the exercise of the Option.
(3) Liquidation or Dissolution. The provisions
of Section 9 and Subsections 10(1) and (2) shall not cause any Option to
terminate other than in accordance with other applicable provisions of the
Plan. However, in the event of the liquidation or dissolution of the Company,
each outstanding Option shall terminate, except to the extent otherwise
specifically provided in the option agreement evidencing the Option.
11. Rights of Optionees. No person shall have the right
to be granted an Option or, having received an Option, a right again to be
granted an Option. An optionee shall have no rights as a stockholder with
respect to any shares of Common Stock covered by his or her Option until the
date the Option has been exercised and the full purchase price for such shares
has been received by the Company. Nothing in this Plan or in any Option
granted pursuant to the Plan shall confer on any individual any right to
continue in the employ of the Company or any Subsidiary or interfere in any way
with the right of the Company or any Subsidiary to terminate or modify the
terms or conditions of the employment of the Option holder.
7.
<PAGE> 8
12. Amendment and Termination of the Plan. Unless sooner
terminated by the Board, the Plan shall terminate, so that no Options may be
granted pursuant to it thereafter, on January 2, 2007. The Board may at any
time amend, suspend or terminate the Plan in its discretion without further
action on the part of the stockholders of the Company, except that:
(1) no such amendment, suspension or termination
of the Plan shall adversely affect or impair any then outstanding Option
without the consent of the optionee holding the Option; and
(2) any such amendment, suspension or termination
that requires approval by the stockholders of the Company to comply with
applicable provisions of the Code, rules promulgated pursuant to Section 16 of
the Exchange Act, applicable state law or NASD or exchange listing requirements
shall be subject to approval by the stockholders of the Company within the
applicable time period prescribed thereunder, and shall be null and void if
such approval is not obtained.
8.
<PAGE> 9
FIRST AMENDMENT TO THE
THINK SYSTEMS CORPORATION
1997 INCENTIVE STOCK OPTION PLAN
AS ADOPTED JANUARY 1, 1997
This First Amendment to the Think Systems Corporation 1997
Incentive Stock Option Plan, as adopted January 1, 1997 (the "Plan"), is made
effective as of the 1st day of January, 1997 in accordance with the provisions
of Section 12 of the Plan. All capitalized terms used herein shall have the
meanings as set forth in the Plan.
I. STOCK SUBJECT TO THE PLAN. The introductory
paragraph of Section 10(l) of the Plan is hereby deleted and replaced by the
following:
(1) Change in Control. Upon the
occurrence of any of the events listed below, the exercisability of all
outstanding Incentive Options and Nonqualified Options held by all optionees
pursuant to this Plan shall be accelerated and such Options shall become
immediately exercisable in full. The events are as follows:
This amendment was authorized and adopted by the Board of
Directors of the Company pursuant to a Certificate of Unanimous Written Consent
executed as of the 1st day of May, 1997.
9.
<PAGE> 1
EXHIBIT 99.2
THINK SYSTEMS CORPORATION
INCENTIVE STOCK OPTION
1. Option. For valuable consideration, receipt of which is hereby
acknowledged, THINK SYSTEMS CORPORATION, a New Jersey corporation (the
"Company"), hereby grants pursuant to the THINK SYSTEMS CORPORATION 1997
Incentive Stock Option Plan (the "Plan") to the undersigned (the "Optionee"),
the right and option (the "Option") to purchase from the Company, subject to the
terms and conditions hereof, the number of shares (the "Optioned Shares") of the
Company's Common Stock, no par value (the "Common Stock"), at a price per share
(the "Option Price") as designated on Schedule A hereto.
2. Terms of Exercise. The Option shall vest on an annual basis, pro
rata, over five years on the anniversary of the Commencement Date (as
hereinafter defined) in accordance with the following schedule:
Cumulative % of Optioned Shares Vested Anniversary of "Commencement Date"
20% First
40% Second
60% Third
80% Fourth
100% Fifth
The "Commencement Date" means the date designated as such in Schedule A hereto.
Except as otherwise provided in this Agreement, the Option may only be exercised
as to vested Optioned Shares. No Option shall be exercised as to fewer than 100
shares of Common Stock or, if less, the total number of shares of Common Stock
remaining unexercised under the Option, and no Option shall be exercisable with
respect to any shares later than ten years after the date the Option is granted.
3. Notice of Exercise and Payment. An Option shall be exercisable
only by delivery of a written notice to the Company's Treasurer specifying the
number of shares of Common Stock for which the Option is being exercised. If the
shares of Common Stock acquired upon exercise of an Option are not at the time
of exercise effectively registered under the Securities Act, the Optionee shall
provide to the Company, as a condition to the Optionee's exercise of the Option,
a letter, in form and substance satisfactory to the Company, to the effect that
the shares are being purchased for the Optionee's own account for investment and
not with a view to distribution or resale, and to such other effects as the
Company deems necessary or appropriate to
<PAGE> 2
comply with federal and applicable state securities laws. Payment shall be made
in full at the time the Option is exercised. Payment shall be made by:
(i) cash;
(ii) delivery and assignment to the Company of shares of
Common Stock owned by the Optionee;
(iii) delivery of a statement to the Company directing the
Company to withhold so many of the shares of Common Stock
that would otherwise have been delivered upon the exercise
of the Option as equals the number of shares of Common Stock
that would have been transferred to the Company if the
purchase price had been paid with shares of Common Stock
owned by the Optionee;
(iv) a combination of (i), (ii), and (iii); or
(v) delivery of a written exercise notice, including
irrevocable instructions to the Company to deliver the stock
certificates issuable upon exercise of the Option directly
to a broker named in the notice that has agreed to
participate in a "cashless" exercise on behalf of the
Optionee;
except that payment pursuant to subparagraphs (ii) through (v) above shall be
permitted only if the shares of Common Stock of the Company are "Publicly
Traded." "Publicly Traded" shall mean the Common Stock of the Company is listed
or admitted to unlisted trading privileges on a national securities exchange or
as to which sales or bid and offer quotations are reported in the automated
quotation system ("NASDAQ") by the National Association of Securities Dealers
Inc. ("NASD").
Upon the Optionee's satisfaction of all conditions required for the
exercise of the Option and payment in full of the purchase price for the shares
being acquired, the Company shall, within a reasonable period of time following
such exercise, deliver a certificate representing the shares of Common Stock so
acquired; provided, that the Company may postpone issuance and delivery of
shares upon any exercise of an Option to the extent necessary or advisable to
comply with applicable exchange listing requirements, NASD requirements, or
federal or state securities laws.
4. Nontransferability of Option. No Option shall be transferable by
the Optionee otherwise than by will or the laws of descent and distribution and
shall be exercisable during the Optionee's lifetime only by the Optionee (or the
Optionee's guardian or legal representative).
2.
<PAGE> 3
5. Termination of Options. The Option shall terminate if the
Optionee ceases for any reason to be an employee, as follows:
(i) Termination With Consent. If the Optionee ceases to be
an employee of the Company or a Subsidiary and at the time
of termination the Company consents in writing to the
Optionee's exercise of an Option following such termination,
then the Optionee may, at any time within a period of 90
days following the date of such termination, exercise such
Option to the extent that the Option was exercisable on the
date the Optionee ceased to be an employee;
(ii) Retirement. If the Optionee ceases to be an employee by
reason of retirement at or after age 65, then the Optionee
may, at any time within a period of 90 days following the
date of such termination, exercise each Option held by the
Optionee on such date to the full extent of the Option;
(iii) Death or Disability. In the event of the Optionee's
death or disability (within the meaning of Code Section
22(e)(3)) either (x) while an employee or (y) while eligible
to exercise an Option under subsections (i) or (ii) above,
then the Optionee (or the Optionee's legal representative,
executor, administrator, or person acquiring an Option by
bequest or inheritance) may, at any time within a period of
one year following the date of the Optionee's death or
commencement of disability, exercise each Option held by the
Optionee on such date to the full extent of the Option; and
(iv) Other Termination. If the Optionee ceases to be an
employee for any reason other than those enumerated in
subsections (i) through (iii) above, the Option shall
terminate immediately on such termination and may not be
exercised thereafter;
provided, however, that no Option may be exercised to any extent by anyone after
the date of expiration of the Option's term.
6. Adjustment for Changes in Capitalization. Appropriate and
equitable adjustment shall be made in the number, kind and option price of
shares of Common Stock subject to the Option to give effect to any changes in
the outstanding Common Stock by reason of any stock dividend, stock split, stock
combination, merger, consolidation, reorganization, recapitalization or any
other change in the capital structure of the Company affecting the Common Stock
after the date hereof.
3.
<PAGE> 4
7. Change in Control; Merger, Etc.
(1) Change in Control. Upon the occurrence of any of the events
listed below, the Option shall become immediately exercisable in full. The
events are as follows:
(i) The sale by the Company of all or substantially all of
its assets, or all or substantially of the assets of its
Subsidiaries, taken as a whole;
(ii) Any of the following events, if immediately following
such event, a majority of the Directors consists of persons
who were not Directors immediately prior to the date of such
event;
(a) the sale of 50% or more of the outstanding
shares of Common Stock of the Company in a single
transaction or related series of transactions;
(b) the consummation of a tender offer (by a party
other than the Company) for more than 50% of the
outstanding shares of Common Stock of the Company;
or
(c) subject to subsection (2) below, the
consummation of a merger or consolidation
involving the Company; or
(iii) An election of new Directors if immediately following
such election a majority of the Directors consists of
persons who were not nominated by the Board or the
nominating committee thereof to stand for election as
Directors in such election.
(2) Where Company Does Not Survive. In the event of a merger or
consolidation to which the Company is a party but is not the surviving company,
the Committee in its discretion may vote to negate and give no effect to the
acceleration of Options pursuant to subsection (1)(ii)(c), but only if and to
the extent that an executed agreement of merger or consolidation provides that
the Optionee holding such an Option shall receive the same merger consideration
as the Optionee would have received as a stockholder of the Company had the
exercisability of the Option been accelerated in accordance with subsection
(1)(ii)(c) above and had the Optionee, immediately prior to the merger or
consolidation, exercised the Option for the full number of shares subject
thereto, paid the exercise price in full, and satisfied all other conditions for
the exercise of the Option.
4.
<PAGE> 5
(3) Liquidation or Dissolution. In the event of the liquidation or
dissolution of the Company, each outstanding Option shall terminate.
8. Rights of Optionees. An Optionee shall have no rights as a
stockholder with respect to any shares of Common Stock covered by the Option
until the date the Option has been exercised and the full purchase price for
such shares has been received by the Company.
9. The Plan and Interpretation. The Option is subject to all of the
terms and conditions of the Plan (a copy of which has been delivered to
Optionee), as amended from time to time. Any question of interpretation or
application of the terms of this Option or the Plan shall be determined by the
Board, and the determination of the Board shall be final and binding for all
purposes upon the Optionee and upon any person claiming by, through or under the
Optionee.
10. Limitations on Exercise, Obligations of Company to Issue Shares,
Tax Treatment.
(a) Violation of Law. Notwithstanding any other provision
hereof, the Optionee, for the Optionee and the Optionee's successors, if any,
agrees that the Optionee will not be permitted to exercise the Option granted
hereby, and no shares of Common Stock shall be issued to the Optionee or the
Optionee's successor hereunder, if the exercise hereof or the issuance of such
shares shall constitute a violation of any provision of law or regulation of any
governmental authority.
(b) Registration. The Company shall not be required to issue any
Optioned Shares unless such shares are at the time effectively registered or
exempt from registration under the Securities Act of 1933, as amended. If, at
the time of the exercise of this Option in whole or in part, in the opinion of
counsel for the Company it is necessary or desirable in order to comply with any
applicable law or regulation relating to the issuance or sale of securities, the
Optionee shall agree and represent that the Optionee is acquiring the Optioned
Shares for investment and not with any present intention to resell the same and
that the Optionee will dispose of such shares only in compliance with such laws
and regulations, and the Optionee will upon the request of the Company, execute
and deliver to the Company an agreement to such effect. Any certificate
representing the optioned shares may bear applicable restrictive legends.
(c) Withholding of Income Taxes. The Company shall not be
required to make any payment or issue any Optioned Shares pursuant to this
Option unless adequate provision had been made to satisfy the Company's
obligation, if any, to withhold income tax in connection with the exercise of
any Option.
(d) Certain Risk Factors. Optionee acknowledged that the Shares
must be held indefinitely unless subsequently registered under the Act or an
5.
<PAGE> 6
exemption from such registration is available. The Optionee understands that the
Shares are highly speculative and that they are and shall be illiquid and
without a market for the forseeable future. The Optionee acknowledged that there
is no assurance of what, if any, value he or she will realize on the Option or
Shares and that no representation or warranty to the contrary has been made.
(e) Tax Treatment. Optionee acknowledges that the tax treatment
of the Option, Optioned Shares, the exercise of the Option or any events or
transactions with respect thereto may be dependent upon various factors or
events which are not covered by this Agreement and that the Option or the
exercise thereof may have serious tax consequences. The Company makes no
representations with respect to and hereby disclaims all responsibility as to
such tax treatment and the characterization as a qualified option (if
applicable) and Optionee understands and accepts such responsibility for any tax
obligations arising in connection herewith. The Company recommends to Optionee
that Optionee obtain his or her own tax advice in connection with the Option and
its exercise.
11. Restrictive Covenant and Shareholders' Agreement. As further
consideration for the grant of the Option, the Optionee agrees and re-confirms
that he is bound by the terms and provisions of the Proprietary Information,
Non-Compete and Inventions Agreement in favor of the Company and executed by him
(the "Restrictive Covenant") and agrees that upon exercise of the Option, in
whole or in part, that the Optionee shall enter into and be bound by such terms
and provisions of a shareholders' agreement as shall be determined by the Board.
Any violation of the Restrictive Covenant at any time as determined by the
Company shall cause the immediate termination of this Option without the need
for advance notice.
12. Buy Back Provisions. Shares issued on exercise of the Option
shall upon issuance be subject to the following restrictions. As used herein,
"Restricted Stock" means Shares issued on exercise of the Option which are still
subject to the restrictions imposed under this Section that have not yet expired
or terminated.
(a) Not in limitation of any other restriction herein,
Restricted Stock (or any interest therein) may not be sold, assigned, pledged or
otherwise transferred or hypothecated (a "Transfer").
(b) If the employment of the Optionee with the Company or a
subsidiary of the Company is terminated for any reason (including death,
retirement in accordance with the Company's established retirement policies and
practices, or total disability), the Company (or any Subsidiary designated by
it) shall have the option for 90 days after such termination of employment to
purchase for cash all or any part of his Restricted Stock for the fair market
value per Share at the date of termination of employment as conclusively
determined by the Company's Board of Directors (or the Committee authorized to
administer the Stock Option Plan), without the need for an
6.
<PAGE> 7
independent valuation or appraisal. A purchase price per share equal to or
greater than the then applicable exercise price per share of incentive stock
options being granted by the Company at such time shall be deemed fair market
value. The restrictions imposed under this paragraph shall apply as well to all
shares or other securities issued in respect of Restricted Stock in connection
with any stock split, reverse stock split, stock dividend, recapitalization,
reclassification, merger, consolidation or reorganization.
(c) The Optionee hereby grants the Company a right of first
refusal with regard to any Transfer of the Restricted Stock. To make any
Transfer, the Optionee shall have received a bona fide written offer to Transfer
(the "Offer") and shall deliver to the Company a true copy of the Offer with all
material terms and conditions of such Transfer and the Company shall have 30
days from receipt of such terms to consummate such Offer (as if it was the
offeror) and acquire the Restricted Stock on such terms. In the event the
Company does not exercise this right, the Optionee will be free to make the
Transfer only on the identical terms set forth in the Offer and within 30 days
of the expiration of the Company's purchase right. If the terms of the Offer are
modified or the Offer is not consummated within such time period, the Optionee
must repeat the procedure set forth in this paragraph to Transfer the Restricted
Stock.
(d) This Section 12 shall expire and terminate with respect to
any Restricted Stock on the earliest to occur of the following:
(i) The date on which shares of the same class of
stock as the Restricted Stock first become Publicly Traded.
(ii) The tenth anniversary of the date hereof.
(e) Any certificates evidencing shares of Restricted Stock may
contain such legends as the Company may deem necessary or advisable to reflect
and give effect to the restrictions imposed hereunder.
13. Successors and Assigns. This Option shall be binding upon the
successors and assigns of the Company, including any corporation that succeeds
to the business of the Company by merger, consolidation or acquisition of
substantially all of the assets and business of the Company, and employment of
the Optionee by the successor corporation shall not be deemed to interrupt
continuity of employment for the purposes hereof.
14. General Provisions.
(a) Governing Law. This Option will be governed by and construed
according to the laws of the State of New Jersey and any dispute hereunder will
be submitted to the exclusive original jurisdiction of the Superior Courts of
the State of New Jersey, Morris County, or the U.S. District Court, Newark, New
Jersey.
7.
<PAGE> 8
(b) Severability. It is the intention of the Company and
Optionee that the provisions of this Option shall be enforced to the fullest
extent permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the
non-enforceability of any provisions hereof shall not render non-enforceability
or impair the remainder of this Option. Accordingly, if any provisions of this
Option shall be determined to be invalid or non-enforceable, either in whole or
in part, this Option shall be deemed amended to delete or modify, as necessary,
the offending provisions and to alter the balance of this Option in order to
render the same valid and enforceable to the fullest extent permissible.
(c) Amendment. This Option may only be amended, or a right
waived hereunder, in a writing signed by the parties hereto.
(d) Headings. The headings in this Option are for convenience of
reference only and are not part of the substance of this Option and references
to the masculine, feminine or neuter shall apply in all cases.
15. Right to Employment. Nothing in this Option shall confer upon
the Optionee any right to continue in the employ of the Company or any of its
subsidiaries or shall interfere in any way with the right of the Company or any
of its subsidiaries to terminate the Optionee's employment at any time.
OPTIONEE HAS READ THIS AGREEMENT CAREFULLY, HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS REGARDING IT AND UNDERSTANDS ITS TERMS. OPTIONEE HAS VOLUNTARILY
ENTERED INTO THIS AGREEMENT AND HAS BEEN ADVISED THAT THIS AGREEMENT CONTAINS
SERIOUS LEGAL RIGHT AND OBLIGATIONS (INCLUDING POTENTIAL IMPORTANT TAX
CONSEQUENCES) AND THAT OPTIONEE MAY HAVE HIS OWN LAWYER REVIEW THIS AGREEMENT
BEFORE SIGNING.
THINK SYSTEMS CORPORATION
By
------------------------
ACCEPTED AND AGREED TO:
By
------------------------
Optionee
Dated:
------------------------
8.
<PAGE> 1
EXHIBIT 99.3
THINK SYSTEMS CORPORATION
1996 INCENTIVE STOCK OPTION PLAN
As Adopted January 31, 1996
1. Purpose. The purpose of this plan is to advance the
interests of Think Systems Corporation by providing an opportunity to selected
key employees, directors and consultants of the Company, its Subsidiaries and
affiliates to purchase shares of Common Stock through the exercise of options
granted pursuant to this Plan, which may be either Incentive Options or
Nonqualified Options. By encouraging such stock ownership, the Company seeks
to establish as close an identity as feasible between the interests of the
Company and its Subsidiaries and those of such key employees, directors and
consultants and also seeks to attract, retain, motivate and reward employees,
directors and consultants of superior ability, training and experience.
2. Definitions
(1) Board means the Board of Directors of the
Company.
(2) Code means the Internal Revenue Code of 1986
and regulations thereunder, as amended from time to time.
(3) Committee means the committee appointed by
the Board responsible for administering the Plan in accordance with Section 5.
(4) Common Stock means the no par value common
stock of the Company.
(5) Company means Think Systems Corporation, a
New Jersey corporation.
(6) Director means each individual who is serving
as a member of the Board as of the time of reference.
(7) Employee means an employee of the Company or
any Subsidiary within the meaning of Code Section 3401(c); "key employee" means
an employee who is determined by the Committee to be providing valuable
services to the Company or any Subsidiary and who is eligible to be granted
Incentive Options under the Plan.
(8) Exchange Act means the Securities Exchange
Act of 1934 and the rules and regulations promulgated pursuant thereto, as
amended from time to time.
<PAGE> 2
(9) Incentive Option Control means a stock option
intended to qualify as an "incentive stock option" within the meaning of Code
Section 422 and designated as such.
(10) Nonqualified Option means a stock option not
intended to be an Incentive Option and designated as a nonqualified stock
option, the federal income tax treatment of which is determined generally under
Code Section 83.
(11) Option means either an Incentive Option or a
Nonqualified Option granted pursuant to this Plan.
(12) Plan means this Think Systems Corporation
1996 Incentive Stock Option Plan as set forth herein, and as amended from time
to time.
(13) Publicly Traded means the Common Stock of the
Company is listed or admitted to unlisted trading privileges on a national
securities exchange or as to which sales or bid and offer quotations are
reported in the automated quotation system ("NASDAQ") by the National
Association of Securities Dealers Inc. ("NASD").
(14) Securities Act means the Securities Act of
1933 and rules and regulations promulgated pursuant thereto, as amended from
time to time.
(15) Subsidiary means a "subsidiary" of the
Company within the meaning of Code Section 424(f), which generally is defined
as any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if, at the relevant time, each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
3. Effective Date. This Plan was approved and adopted
by the Board on January 31, 1996. The effective date of the Plan shall be
January 31, 1996, so long as the Plan is approved by the stockholders of the
Company within 12 months of such date.
4. Stock Subject to Plan. The maximum aggregate number
of shares of Common Stock that may be made subject to Options granted hereunder
is 900,000 shares, which number shall be adjusted in accordance with Section 8
in the event of any change in the Company's capital structure. Shares of
Common Stock issued pursuant to the Plan may consist, in whole or in part, of
either authorized and unissued shares or issued shares held in the Company's
treasury. Any shares subject to an Option that for any reason expires or is
terminated unexercised as to such shares may again be the subject of an Option
under the Plan.
5. Administration. The Plan shall be administered by a
Committee appointed by the Board consisting of not fewer than two individuals
who are Directors.
2.
<PAGE> 3
The Board shall have the discretion to remove and appoint members of the
Committee from time to time. The Committee shall have full power and
discretion, subject to the express provisions of the Plan, (i) to determine the
persons to whom Options are to be granted, the time or times at which Options
are to be granted, the number of shares of Common Stock to be made subject to
each Option, whether each Option is to be an Incentive Option or a Nonqualified
Option, the exercise price per share under each Option, and the maximum term of
each Option; (ii) to interpret and construe the Plan and to prescribe, amend
and rescind the rules and regulations for its administration; (iii) to
determine the terms and provisions of each option agreement, which need not be
identical, evidencing an Option; and (iv) to make all other determinations the
Committee deems necessary or advisable for administering the Plan. All
decisions of the Committee shall be made by a majority of its members, which
shall constitute a quorum, and shall be reflected in minutes of its meetings.
The Board shall have the power to act in lieu of the Committee.
6. Eligibility. Options may be granted to such persons
as the Committee selects. A person who is a key employee is eligible to
receive Incentive Options pursuant to this Plan; a person who is not an
Employee is not eligible to receive Incentive Options.
7. Terms and Conditions of Options. Options granted
pursuant to the Plan shall be evidenced by stock option agreements, which need
not be identical, in such form and containing such terms and conditions as the
Committee shall determine. If an Employee to whom an Option is granted does
not execute an option agreement evidencing that Option in the form prescribed
by the Committee within a reasonable period of time after the receipt of the
option agreement as specified by the Committee, the Option shall be void and of
no further force or effect. Each option agreement evidencing an Option shall
contain among its terms and conditions the following:
(1) Price. Subject to the conditions on
Incentive Options contained in Section 8(2), if applicable, the purchase price
per share of Common Stock payable upon the exercise of each Option granted
hereunder shall be as determined by the Committee in its discretion but shall
not be less than the fair market value of the Common Stock on the day the
Option is granted if an Incentive Option. The fair market value of Common
Stock shall be as determined by the Committee in its discretion in accordance
with any applicable laws or rules.
(2) Number of Shares and Kind of Option. Each
option agreement shall specify the number of shares to which it pertains and
shall specify whether the Option is a Nonqualified Option or an Incentive
Option.
(3) Terms of Exercise. Subject to the conditions
on Incentive Options contained in Section 8(2), if applicable, and to Section
10, each Option shall be exercisable for the full amount or for any part
thereof and at such intervals or in such
3.
<PAGE> 4
installments as the Committee may determine at the time it grants such Option;
provided, however, that (i) no Option shall be exercised as to fewer than 100
shares of Common Stock or, if less, the total number of shares of Common Stock
remaining unexercised under the Option, and (ii) no Option shall be exercisable
with respect to any shares earlier than six months from the date the Option is
granted or later than ten years after the date the Option is granted, except to
the extent permitted in the event of the death or disability of the holder of a
Nonqualified Option under Section 7(7).
(4) Notice of Exercise and Payment. An Option
shall be exercisable only by delivery of a written notice to the Company's
Treasurer, or any other officer of the Company the Committee designates to
receive such notices, specifying the number of shares of Common Stock for which
the Option is being exercised. If the shares of Common Stock acquired upon
exercise of an Option are not at the time of exercise effectively registered
under the Securities Act, the optionee shall provide to the Company, as a
condition to the optionee's exercise of the Option, a letter, in form and
substance satisfactory to the Company, to the effect that the shares are being
purchased for the optionee's own account for investment and not with a view to
distribution or resale, and to such other effects as the Company deems
necessary or appropriate to comply with federal and applicable state securities
laws. Payment shall be made in full at the time the Option is exercised.
Payment shall be made by:
(i) cash;
(ii) delivery and assignment to the
Company of shares of Common Stock owned by the
optionee;
(iii) delivery of a written exercise
notice, including irrevocable instructions to the
Company directing the Company to withhold so many of
the shares of Common Stock that would otherwise have
been delivered upon the exercise of the Option as
equals the number of shares of Common Stock that
would have been transferred to the Company if the
purchase price had been paid with shares of Common
Stock owned by the optionee;
(iv) a combination of (i), (ii), and
(iii); or
(v) delivery of a written exercise
notice, including irrevocable instructions to the
Company to deliver the stock certificates issuable
upon exercise of the Option directly to a broker
named in the notice that has agreed to participate in
a "cashless" exercise on behalf of the optionee;
except that payment pursuant to subparagraphs (ii) through (v) above shall be
permitted only if the shares of Common Stock of the Company are Publicly
Traded.
4.
<PAGE> 5
Upon the optionee's satisfaction of all conditions required
for the exercise of the Option and payment in full of the purchase price for
the shares being acquired, the Company shall, within a reasonable period of
time following such exercise, deliver a certificate representing the shares of
Common Stock so acquired; provided, that the Company may postpone issuance and
delivery of shares upon any exercise of an Option to the extent necessary or
advisable to comply with applicable exchange listing requirements, NASD
requirements, or federal or state securities laws.
(5) Withholding Taxes. The Company's obligation
to deliver shares of Common Stock upon exercise of an Option, in whole or in
part, shall be subject to the optionee's satisfaction of all applicable
federal, state and local tax withholding obligations.
(6) Nontransferability of Option. No Option
shall be transferable by the optionee otherwise than by will or the laws of
descent and distribution and shall be exercisable during the optionee's
lifetime only by the optionee (or the optionee's guardian or legal
representative).
(7) Termination of Options. Each option
agreement evidencing an Option shall contain provisions setting forth the
date(s) on which the Option will terminate if the optionee ceases to be an
employee, director or consultant of the Company by reason of death, disability,
retirement or otherwise.
(8) Legends. Any restriction on transfer of
shares of Common Stock provided in this Plan or in the option agreement
evidencing any Option shall be noted or referred to conspicuously on each
certificate evidencing such shares.
(9) Shareholders' Agreement. An option agreement
evidencing an Option may provide that, in consideration for the grant of the
option, the Optionee shall agree that upon exercise of the Option, in whole or
in part, that the optionee shall enter into and be bound by such terms and
provisions of a shareholders' agreement as the Committee shall determine.
8. Restrictions on Incentive Options. Incentive Options
(but not Nonqualified Options) granted under this Plan shall be subject to the
following restrictions:
(1) Limitation on Number of Shares. The
aggregate fair market value, determined as of the date an Incentive Option is
granted, of the shares with respect to which Incentive Options are exercisable
for the first time by an Employee during any calendar year shall not exceed
$100,000. If an Incentive Option is granted pursuant to which the aggregate
fair market value of shares with respect to which it first becomes exercisable
in any calendar year by an Employee exceeds the aforementioned $100,000
limitation, the portion of such Option which is in excess of the $100,000
5.
<PAGE> 6
limitation shall be treated as a Nonqualified Option pursuant to Code Section
422(d)(1). In the event that an Employee is eligible to participate in any
other stock option plan of the Company or a Subsidiary which is also intended
to comply with the provisions of Code Section 422, the $100,000 limitation
shall apply to the aggregate number of shares for which Incentive Options may
be granted under all such plans.
(2) 10% Stockholder. If an Employee to whom an
Incentive Option is granted pursuant to the provisions of the Plan is on the
date of grant the owner of stock (as determined under Code Section 424(d))
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or a Subsidiary, then the following special provisions
shall be applicable to the Incentive Option granted to such individual:
(i) The Option price per share subject
to such Incentive Option shall not be less than 110%
of the fair market value of one share on the date of
grant; and
(ii) The Incentive Option shall not have
a term in excess of five (5) years from its date of
grant.
9. Adjustment for Changes in Capitalization.
Appropriate and equitable adjustment shall be made in the maximum number of
shares of Common Stock subject to the Plan under Section 4 and, subject to
Section 10, in the number, kind and option price of shares of Common Stock
subject to then outstanding Options to give effect to any changes in the
outstanding Common Stock by reason of any stock dividend, stock split, stock
combination, merger, consolidation, reorganization, recapitalization or any
other change in the capital structure of the Company affecting the Common Stock
after the effective date of the Plan.
10. Change in Control; Merger, Etc.
(1) Change in Control. Upon the occurrence of
any of the events listed below, the exercisability of all outstanding Incentive
Options and Nonqualified Options held by all optionees pursuant to this Plan
shall be accelerated and such Options shall become immediately exercisable in
full. The events are as follows:
(i) The sale by the Company of all or
substantially all of its assets;
(ii) Any of the following events, if
immediately following such event, a majority of the
Directors consists of persons who were not Directors
immediately prior to the date of such event;
6.
<PAGE> 7
(a) the sale of 50% or more of the
outstanding shares of Common
Stock of the Company in a
single transaction;
(b) the consummation of a tender
offer (by a party other than
the Company) for more than
50% of the outstanding shares
of Common Stock of the
Company; or
(c) subject to Section 10(2) below,
the consummation of a merger
or consolidation involving
the Company; or
(iii) An election of new Directors if
immediately following such election a majority of the
Directors consists of persons who were not nominated
by the Board or the nominating committee thereof to
stand for election as Directors in such election.
(2) Where Company Does Not Survive. In the event
of a merger or consolidation to which the Company is a party but is not the
surviving company, the Committee in its discretion may vote to negate and give
no effect to the acceleration of Options pursuant to Section 10(1)(ii)(c), but
only if and to the extent that an executed agreement of merger or consolidation
provides that the optionee holding such an Option shall receive the same merger
consideration as the optionee would have received as a stockholder of the
Company had the exercisability of the Option been accelerated in accordance
with Section 10(1)(ii)(c) and had the optionee, immediately prior to the merger
or consolidation, exercised the Option for the full number of shares subject
thereto, paid the exercise price in full, and satisfied all other conditions
for the exercise of the Option.
(3) Liquidation or Dissolution. The provisions
of Section 9 and Subsections 10(1) and (2) shall not cause any Option to
terminate other than in accordance with other applicable provisions of the
Plan. However, in the event of the liquidation or dissolution of the Company,
each outstanding Option shall terminate, except to the extent otherwise
specifically provided in the option agreement evidencing the Option.
11. Rights of Optionees. No person shall have a right to
be granted an Option or, having received an Option, a right again to be granted
an Option. An optionee shall have no rights as a stockholder with respect to
any shares of Common Stock covered by his or her Option until the date the
Option has been exercised and the full purchase price for such shares has been
received by the Company. Nothing in this Plan or in any Option granted
pursuant to the Plan shall confer on any individual any right to continue in
the employ of the Company or any Subsidiary or interfere in any way
7.
<PAGE> 8
with the right of the Company or any Subsidiary to terminate or modify the
terms or conditions of the employment of the Option holder.
12. Amendment and Termination of the Plan. Unless sooner
terminated by the Board, the Plan shall terminate, so that no Options may be
granted pursuant to it thereafter, on February 1, 2006. The Board may at any
time amend, suspend or terminate the Plan in its discretion without further
action on the part of the stockholders of the Company, except that:
(1) no such amendment, suspension or termination
of the Plan shall adversely affect or impair any then outstanding Option
without the consent of the optionee holding the Option; and
(2) any such amendment, suspension or termination
that requires approval by the stockholders of the Company to comply with
applicable provisions of the Code, rules promulgated pursuant to Section 16 of
the Exchange Act, applicable state law or NASD or exchange listing requirements
shall be subject to approval by the stockholders of the Company within the
applicable time period prescribed thereunder, and shall be null and void if
such approval is not obtained.
8.
<PAGE> 1
EXHIBIT 99.4
THINK SYSTEMS CORPORATION
INCENTIVE STOCK OPTION
1. Option. For valuable consideration, receipt of which
is hereby acknowledged, THINK SYSTEMS CORPORATION, a New Jersey corporation
(the "Company"), hereby grants pursuant to the THINK SYSTEMS CORPORATION 1996
Incentive Stock Option Plan (the "Plan") to the undersigned (the "Optionee"),
the right and option (the "Option") to purchase from the Company, subject to
the terms and conditions hereof, the number of shares (the "Optioned Shares")
of the Company's Common Stock, no par value (the "Common Stock"), at a price
per share (the "Option Price") as designated on Schedule A hereto.
2. Terms of Exercise. The Option shall vest on an
annual basis, pro rata, over five years on the anniversary of the Commencement
Date (as hereinafter defined) in accordance with the following schedule:
<TABLE>
<CAPTION>
Cumulative % of Optioned Shares Vested Anniversary of "Commencement Date"
- -------------------------------------- ----------------------------------
<S> <C>
20% First
40% Second
60% Third
80% Fourth
100% Fifth
</TABLE>
The "Commencement Date" means the date designated as such in Schedule A hereto.
Except as otherwise provided in this Agreement, the Option may only be
exercised as to vested Optioned Shares. No Option shall be exercised as to
fewer than 100 shares of Common Stock or, if less, the total number of shares
of Common Stock remaining unexercised under the Option, and no Option shall be
exercisable with respect to any shares later than ten years after the date the
Option is granted.
3. Notice of Exercise and Payment. An Option shall be
exercisable only by delivery of a written notice to the Company's Treasurer
specifying the number of shares of Common Stock for which the Option is being
exercised. If the shares of Common Stock acquired upon exercise of an Option
are not at the time of exercise effectively registered under the Securities
Act, the Optionee shall provide to the Company, as a condition to the
Optionee's exercise of the Option, a letter, in form and substance satisfactory
to the Company, to the effect that the shares are being purchased for the
Optionee's own account for investment and not with a view to distribution or
resale, and to such other effects as the Company deems necessary or appropriate
to
<PAGE> 2
comply with federal and applicable state securities laws. Payment shall be
made in full at the time the Option is exercised. Payment shall be made by:
(i) cash;
(ii) delivery and assignment to the
Company of shares of Common Stock owned by the
Optionee;
(iii) delivery of a statement to the
Company directing the Company to withhold so many of
the shares of Common Stock that would otherwise have
been delivered upon the exercise of the Option as
equals the number of shares of Common Stock that
would have been transferred to the Company if the
purchase price had been paid with shares of Common
Stock owned by the Optionee;
(iv) a combination of (i), (ii), and
(iii); or
(v) delivery of a written exercise
notice, including irrevocable instructions to the
Company to deliver the stock certificates issuable
upon exercise of the Option directly to a broker
named in the notice that has agreed to participate in
a "cashless" exercise on behalf of the Optionee;
except that payment pursuant to subparagraphs (ii) through (v) above shall be
permitted only if the shares of Common Stock of the Company are "Publicly
Traded." "Publicly Traded" shall mean the Common Stock of the Company is
listed or admitted to unlisted trading privileges on a national securities
exchange or as to which sales or bid and offer quotations are reported in the
automated quotation system ("NASDAQ") by the National Association of Securities
Dealers Inc. ("NASD").
Upon the Optionee's satisfaction of all conditions required
for the exercise of the Option and payment in full of the purchase price for
the shares being acquired, the Company shall, within a reasonable period of
time following such exercise, deliver a certificate representing the shares of
Common Stock so acquired; provided, that the Company may postpone issuance and
delivery of shares upon any exercise of an Option to the extent necessary or
advisable to comply with applicable exchange listing requirements, NASD
requirements, or federal or state securities laws.
4. Nontransferability of Option. No Option shall be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution and shall be exercisable during the Optionee's lifetime only by
the Optionee (or the Optionee's guardian or legal representative).
2.
<PAGE> 3
5. Termination of Options. The Option shall terminate
if the Optionee ceases for any reason to be an employee, as follows:
(i) Termination With Consent. If the
Optionee ceases to be an employee of the Company or a
Subsidiary and at the time of termination the Company
consents in writing to the Optionee's exercise of an
Option following such termination, then the Optionee
may, at any time within a period of 90 days following
the date of such termination, exercise such Option to
the extent that the Option was exercisable on the
date the Optionee ceased to be an employee;
(ii) Retirement. If the Optionee ceases
to be an employee by reason of retirement at or after
age 65, then the Optionee may, at any time within a
period of 90 days following the date of such
termination, exercise each Option held by the
Optionee on such date to the full extent of the
Option;
(iii) Death or Disability. In the event
of the Optionee's death or disability (within the
meaning of Code Section 22(e)(3)) either (x) while an
employee or (y) while eligible to exercise an Option
under subsections (i) or (ii) above, then the
Optionee (or the Optionee's legal representative,
executor, administrator, or person acquiring an
Option by bequest or inheritance) may, at any time
within a period of one year following the date of the
Optionee's death or commencement of disability,
exercise each Option held by the Optionee on such
date to the full extent of the Option; and
(iv) Other Termination. If the Optionee
ceases to be an employee for any reason other than
those enumerated in subsections (i) through (iii)
above, the Option shall terminate immediately on such
termination and may not be exercised thereafter;
provided, however, that no Option may be exercised to any extent by anyone
after the date of expiration of the Option's term.
6. Adjustment for Changes in Capitalization.
Appropriate and equitable adjustment shall be made in the number, kind and
option price of shares of Common Stock subject to the Option to give effect to
any changes in the outstanding Common Stock by reason of any stock dividend,
stock split, stock combination, merger, consolidation, reorganization,
recapitalization or any other change in the capital structure of the Company
affecting the Common Stock after the date hereof.
3.
<PAGE> 4
7. Change in Control; Merger, Etc.
(1) Change in Control. Upon the occurrence of
any of the events listed below, the Option shall become immediately exercisable
in full. The events are as follows:
(i) The sale by the Company of all or
substantially all of its assets, or all or
substantially of the assets of its Subsidiaries,
taken as a whole;
(ii) Any of the following events, if
immediately following such event, a majority of the
Directors consists of persons who were not Directors
immediately prior to the date of such event;
(a) the sale of 50% or more of the
outstanding shares of Common
Stock of the Company in a
single transaction or related
series of transactions;
(b) the consummation of a tender
offer (by a party other than
the Company) for more than
50% of the outstanding shares
of Common Stock of the
Company; or
(c) subject to subsection (2)
below, the consummation of a
merger or consolidation
involving the Company; or
(iii) An election of new Directors if
immediately following such election a majority of the
Directors consists of persons who were not nominated
by the Board or the nominating committee thereof to
stand for election as Directors in such election.
(2) Where Company Does Not Survive. In the event
of a merger or consolidation to which the Company is a party but is not the
surviving company, the Committee in its discretion may vote to negate and give
no effect to the acceleration of Options pursuant to subsection (1)(ii)(c), but
only if and to the extent that an executed agreement of merger or consolidation
provides that the Optionee holding such an Option shall receive the same merger
consideration as the Optionee would have received as a stockholder of the
Company had the exercisability of the Option been accelerated in accordance
with subsection (1)(ii)(c) above and had the Optionee, immediately prior to the
merger or consolidation, exercised the Option for the full number of shares
subject thereto, paid the exercise price in full, and satisfied all other
conditions for the exercise of the Option.
4.
<PAGE> 5
(3) Liquidation or Dissolution. In the event of
the liquidation or dissolution of the Company, each outstanding Option shall
terminate.
8. Rights of Optionees. An Optionee shall have no
rights as a stockholder with respect to any shares of Common Stock covered by
the Option until the date the Option has been exercised and the full purchase
price for such shares has been received by the Company.
9. The Plan and Interpretation. The Option is subject
to all of the terms and conditions of the Plan (a copy of which has been
delivered to Optionee), as amended from time to time. Any question of
interpretation or application of the terms of this Option or the Plan shall be
determined by the Board, and the determination of the Board shall be final and
binding for all purposes upon the Optionee and upon any person claiming by,
through or under the Optionee.
10. Limitations on Exercise, Obligations of Company to
Issue Shares, Tax Treatment.
(a) Violation of Law. Notwithstanding any other
provision hereof, the Optionee, for the Optionee and the Optionee's successors,
if any, agrees that the Optionee will not be permitted to exercise the Option
granted hereby, and no shares of Common Stock shall be issued to the Optionee
or the Optionee's successor hereunder, if the exercise hereof or the issuance
of such shares shall constitute a violation of any provision of law or
regulation of any governmental authority.
(b) Registration. The Company shall not be
required to issue any Optioned Shares unless such shares are at the time
effectively registered or exempt from registration under the Securities Act of
1933, as amended. If, at the time of the exercise of this Option in whole or
in part, in the opinion of counsel for the Company it is necessary or desirable
in order to comply with any applicable law or regulation relating to the
issuance or sale of securities, the Optionee shall agree and represent that the
Optionee is acquiring the Optioned Shares for investment and not with any
present intention to resell the same and that the Optionee will dispose of such
shares only in compliance with such laws and regulations, and the Optionee will
upon the request of the Company, execute and deliver to the Company an
agreement to such effect. Any certificate representing the optioned shares may
bear applicable restrictive legends.
(c) Withholding of Income Taxes. The Company
shall not be required to make any payment or issue any Optioned Shares pursuant
to this Option unless adequate provision had been made to satisfy the Company's
obligation, if any, to withhold income tax in connection with the exercise of
any Option.
(d) Certain Risk Factors. Optionee acknowledged
that the Shares must be held indefinitely unless subsequently registered under
the Act or an
5.
<PAGE> 6
exemption from such registration is available. The Optionee understands that
the Shares are highly speculative and that they are and shall be illiquid and
without a market for the forseeable future. The Optionee acknowledged that
there is no assurance of what, if any, value he or she will realize on the
Option or Shares and that no representation or warranty to the contrary has
been made.
(e) Tax Treatment. Optionee acknowledges that
the tax treatment of the Option, Optioned Shares, the exercise of the Option or
any events or transactions with respect thereto may be dependent upon various
factors or events which are not covered by this Agreement and that the Option
or the exercise thereof may have serious tax consequences. The Company makes
no representations with respect to and hereby disclaims all responsibility as
to such tax treatment and the characterization as a qualified option (if
applicable) and Optionee understands and accepts such responsibility for any
tax obligations arising in connection herewith. The Company recommends to
Optionee that Optionee obtain his or her own tax advice in connection with the
Option and its exercise.
11. Restrictive Covenant and Shareholders' Agreement. As
further consideration for the grant of the Option, the Optionee agrees and
re-confirms that he is bound by the terms and provisions of the Proprietary
Information, Non-Compete and Inventions Agreement in favor of the Company and
executed by him (the "Restrictive Covenant") and agrees that upon exercise of
the Option, in whole or in part, that the Optionee shall enter into and be
bound by such terms and provisions of a shareholders' agreement as shall be
determined by the Board. Any violation of the Restrictive Covenant at any time
as determined by the Company shall cause the immediate termination of this
Option without the need for advance notice.
12. Buy Back Provisions. Shares issued on exercise of
the Option shall upon issuance be subject to the following restrictions. As
used herein, "Restricted Stock" means Shares issued on exercise of the Option
which are still subject to the restrictions imposed under this Section that
have not yet expired or terminated.
(a) Not in limitation of any other restriction
herein, Restricted Stock (or any interest therein) may not be sold, assigned,
pledged or otherwise transferred or hypothecated (a "Transfer").
(b) If the employment of the Optionee with the
Company or a subsidiary of the Company is terminated for any reason (including
death, retirement in accordance with the Company's established retirement
policies and practices, or total disability), the Company (or any Subsidiary
designated by it) shall have the option for 90 days after such termination of
employment to purchase for cash all or any part of his Restricted Stock for the
fair market value per Share at the date of termination of employment as
conclusively determined by the Company's Board of Directors (or the Committee
authorized to administer the Stock Option Plan), without the need for an
6.
<PAGE> 7
independent valuation or appraisal. A purchase price per share equal to or
greater than the then applicable exercise price per share of incentive stock
options being granted by the Company at such time shall be deemed fair market
value. The restrictions imposed under this paragraph shall apply as well to
all shares or other securities issued in respect of Restricted Stock in
connection with any stock split, reverse stock split, stock dividend,
recapitalization, reclassification, merger, consolidation or reorganization.
(c) The Optionee hereby grants the Company a
right of first refusal with regard to any Transfer of the Restricted Stock. To
make any Transfer, the Optionee shall have received a bona fide written offer
to Transfer (the "Offer") and shall deliver to the Company a true copy of the
Offer with all material terms and conditions of such Transfer and the Company
shall have 30 days from receipt of such terms to consummate such Offer (as if
it was the offeror) and acquire the Restricted Stock on such terms. In the
event the Company does not exercise this right, the Optionee will be free to
make the Transfer only on the identical terms set forth in the Offer and within
30 days of the expiration of the Company's purchase right. If the terms of the
Offer are modified or the Offer is not consummated within such time period, the
Optionee must repeat the procedure set forth in this paragraph to Transfer the
Restricted Stock.
(d) This Section 12 shall expire and terminate
with respect to any Restricted Stock on the earliest to occur of the following:
(i) The date on which shares of the same
class of stock as the Restricted Stock first become Publicly Traded.
(ii) The tenth anniversary of the date
hereof.
(e) Any certificates evidencing shares of
Restricted Stock may contain such legends as the Company may deem necessary or
advisable to reflect and give effect to the restrictions imposed hereunder.
13. Successors and Assigns. This Option shall be binding
upon the successors and assigns of the Company, including any corporation that
succeeds to the business of the Company by merger, consolidation or acquisition
of substantially all of the assets and business of the Company, and employment
of the Optionee by the successor corporation shall not be deemed to interrupt
continuity of employment for the purposes hereof.
14. General Provisions.
(a) Governing Law. This Option will be governed
by and construed according to the laws of the State of New Jersey and any
dispute hereunder will be submitted to the exclusive original jurisdiction of
the Superior Courts of the State of New Jersey, Morris County, or the U.S.
District Court, Newark, New Jersey.
7.
<PAGE> 8
(b) Severability. It is the intention of the
Company and Optionee that the provisions of this Option shall be enforced to
the fullest extent permissible under the laws and public policies of each state
and jurisdiction in which such enforcement is sought, but that the
non-enforceability of any provisions hereof shall not render non-enforceability
or impair the remainder of this Option. Accordingly, if any provisions of this
Option shall be determined to be invalid or non-enforceable, either in whole or
in part, this Option shall be deemed amended to delete or modify, as necessary,
the offending provisions and to alter the balance of this Option in order to
render the same valid and enforceable to the fullest extent permissible.
(c) Amendment. This Option may only be amended,
or a right waived hereunder, in a writing signed by the parties hereto.
(d) Headings. The headings in this Option are
for convenience of reference only and are not part of the substance of this
Option and references to the masculine, feminine or neuter shall apply in all
cases.
15. Right to Employment. Nothing in this Option shall
confer upon the Optionee any right to continue in the employ of the Company or
any of its subsidiaries or shall interfere in any way with the right of the
Company or any of its subsidiaries to terminate the Optionee's employment at
any time.
OPTIONEE HAS READ THIS AGREEMENT CAREFULLY, HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS REGARDING IT AND UNDERSTANDS ITS TERMS. OPTIONEE HAS VOLUNTARILY
ENTERED INTO THIS AGREEMENT AND HAS BEEN ADVISED THAT THIS AGREEMENT CONTAINS
SERIOUS LEGAL RIGHT AND OBLIGATIONS (INCLUDING POTENTIAL IMPORTANT TAX
CONSEQUENCES) AND THAT OPTIONEE MAY HAVE HIS OWN LAWYER REVIEW THIS AGREEMENT
BEFORE SIGNING.
THINK SYSTEMS CORPORATION
By
--------------------------------
ACCEPTED AND AGREED TO:
By
--------------------------------
Optionee
Dated:
----------------------------
8.
<PAGE> 1
EXHIBIT 99.5
I2 TECHNOLOGIES, INC.
STOCK OPTION ASSUMPTION AGREEMENT
THINK SYSTEMS CORPORATION
1996 INCENTIVE STOCK OPTION PLAN AND
1997 INCENTIVE STOCK OPTION PLAN
OPTIONEE: 1~
STOCK OPTION ASSUMPTION AGREEMENT issued as of the 15th day of May,
1997 by i2 Technologies, Inc., a Delaware corporation ("i2 Technologies").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding stock options to purchase shares of the common stock of Think
Systems Corporation, a New Jersey corporation ("TSC"), which were granted to
Optionee under the TSC 1996 Incentive Stock Option Plan or the TSC 1997
Incentive Stock Option Plan (together the "Plans") and are evidenced by a Stock
Option Agreement (the "Option Agreement") between TSC and Optionee.
WHEREAS, TSC has this day been acquired by i2 Technologies through
merger of TSC Acquisition Corporation, a wholly-owned i2 Technologies
subsidiary, with and into TSC (the "Merger") pursuant to the Agreement and Plan
of Merger dated May 15, 1997, by and among i2 Technologies, TSC and TSC
Acquisition Corporation (the "Merger Agreement").
WHEREAS, the provisions of the Merger Agreement require i2
Technologies to assume all obligations of TSC under all options outstanding
under the Plans at the consummation of the Merger and to issue to the holder of
each outstanding option an agreement evidencing the assumption of such option.
WHEREAS, pursuant to the provisions of the Merger Agreement, the
exchange ratio in effect for the Merger is 0.286596 of a share of i2
Technologies common stock ("i2 Technologies Stock") for each outstanding share
of TSC Stock (the "Exchange Ratio").
WHEREAS, this Agreement is to become effective immediately upon the
consummation of the Merger (the "Effective Time") in order to reflect certain
adjustments to Optionee's outstanding options under the Plans which have become
necessary by reason of the assumption of those options by i2 Technologies in
connection with the Merger.
<PAGE> 2
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of TSC common stock ("TSC Stock") subject to
the stock options held by Optionee under the Plans immediately prior to the
Effective Time (the "TSC Options") and the exercise price payable per share are
set forth in Exhibit A hereto. i2 Technologies hereby assumes, as of the
Effective Time, all the duties and obligations of TSC under each of the TSC
Options. In connection with such assumption, the number of shares of i2
Technologies Stock purchasable under each i2 Technologies Option hereby assumed
and the exercise price payable thereunder have been adjusted to reflect the
Exchange Ratio. Accordingly, the number of shares of i2 Technologies Stock
subject to each TSC Option hereby assumed shall be as specified for that option
in attached Exhibit B, and the adjusted exercise price payable per share of i2
Technologies Stock under the assumed TSC Option shall be as indicated for that
option in attached Exhibit B.
2. The intent of the foregoing adjustments to each assumed TSC
Option is to assure that the spread between the aggregate fair market value of
the shares of i2 Technologies Stock purchasable under each such option and the
aggregate exercise price as adjusted pursuant to this agreement will,
immediately after the consummation of the Merger, equal the spread which
existed, immediately prior to the Merger, between the then aggregate fair market
value of the TSC Stock subject to the TSC Option and the aggregate exercise
price in effect at such time under the Option Agreement. Such adjustments are
also designed to preserve, immediately after the Merger, on a per share basis,
the same ratio of exercise price per option share to fair market value per share
which existed under the TSC Option immediately prior to the Merger.
3. The following provisions shall govern each TSC Option hereby
assumed by i2 Technologies:
(a) Unless the context otherwise requires, all
references to the "Company" in the Option Agreement and in the Plans
(as incorporated into such Option Agreement) shall mean i2
Technologies, all references to "Common Stock" shall mean shares of
i2 Technologies Stock, all references to the Board shall mean the
Board of Directors of i2 Technologies and all references to the
"Committee" shall mean the Compensation Committee of the i2
Technologies Board of Directors.
(b) The grant date and the expiration date of each
assumed TSC Option and all other provisions which govern either the
exercisability or the termination of the assumed TSC Option shall
remain the same as set forth in the Option Agreement applicable to
that option and shall accordingly govern and control Optionee's
rights under this Agreement to purchase i2 Technologies Stock.
2.
<PAGE> 3
(c) Pursuant to the terms of each Plan and the
Option Agreements, each TSC Option will automatically accelerate in
full and become exercisable for all of the option shares as of the
Effective Time. Each TSC Option, as so accelerated, will be assumed
by i2 Technologies as of the Effective Time, adjusted in accordance
with the provisions of paragraph 1 above, and will remain
exercisable for all of the underlying option shares as fully vested
shares of i2 Technologies Stock, until the expiration date of such
option, unless sooner terminated in connection with the optionee's
termination of employment or otherwise in accordance with the terms
of the Plans or the Option Agreement.
(d) For purposes of applying any and all
provisions of the Option Agreement relating to Optionee's status as
an employee with the Company, Optionee shall be deemed to continue
in such employee status for so long as Optionee renders services as
an employee to i2 Technologies or any present or future i2
Technologies subsidiary, including (without limitation) TSC.
Accordingly, the provisions of the Option Agreement governing the
termination of the assumed TSC Option upon Optionee's cessation of
employee status with TSC shall hereafter be applied on the basis of
Optionee's cessation of employee status with i2 Technologies and its
subsidiaries, and each assumed TSC Option shall accordingly
terminate, within the designated time period in effect under the
Option Agreement for that option, following such cessation of
employment with i2 Technologies and its subsidiaries.
(e) The adjusted exercise price payable for the i2
Technologies Stock subject to each assumed TSC Option shall be
payable in any of the forms authorized under the Option Agreement
applicable to that option. For purposes of determining the holding
period of any shares of i2 Technologies Stock delivered in payment
of such adjusted exercise price, the period for which such shares
were held as TSC Stock prior to the Merger shall be taken into
account.
(f) In order to exercise each assumed TSC Option,
Optionee must deliver to i2 Technologies a written notice of
exercise in which the number of shares of i2 Technologies Stock to
be purchased thereunder must be indicated. The exercise notice must
be accompanied by payment of the adjusted exercise price payable for
the purchased shares of i2 Technologies Stock and should be
delivered to i2 Technologies at the following address:
i2 Technologies, Inc.
909 E. Las Colinas Boulevard, 16th Floor
Irving, Texas 75039
Attention: ________________
3
<PAGE> 4
4. Except to the extent specifically modified by this Option
Assumption Agreement, all of the terms and conditions of each Option Agreement
as in effect immediately prior to the Merger shall continue in full force and
effect and shall not in any way be amended, revised or otherwise affected by
this Stock Option Assumption Agreement.
4.
<PAGE> 5
IN WITNESS WHEREOF, i2 Technologies, Inc. has caused this Stock
Option Assumption Agreement to be executed on its behalf by its duly-authorized
officer as of the ___ day of _____, 1997.
I2 TECHNOLOGIES, INC.
By:
-----------------------------
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to each of his or her TSC Options hereby assumed by i2 Technologies,
Inc. are as set forth in the Option Agreement, the Plans and such Stock Option
Assumption Agreement.
----------------------------
1~, OPTIONEE
`
DATED: __________________, 199_
5.
<PAGE> 6
EXHIBIT A
Optionee's Outstanding Options to Purchase Shares of Think Systems Corporation
Common Stock (Pre-Merger)
<PAGE> 7
EXHIBIT B
Optionee's Outstanding Options to Purchase Shares of i2 Technologies, Inc.
Common Stock (Post-Merger)
<PAGE> 1
EXHIBIT 99.6
THINK SYSTEMS CORPORATION
NON-QUALIFIED STOCK OPTION
1. Option. For valuable consideration, receipt of which
is hereby acknowledged, THINK SYSTEMS CORPORATION, a New Jersey corporation
(the "Company"), hereby grants to _______________________________ (the
"Optionee"), the right and option (the "Option") to purchase from the Company,
subject to the terms and conditions hereof, the number of shares (the "Optioned
Shares") of the Company's Common Stock, no par value (the "Common Stock"), at a
price per share (the "Option Price") as designated on Schedule A hereto.
2. Terms of Exercise. The Option shall vest on the date
designated as the "Vesting Date" on Schedule A hereto. Except as otherwise
provided in this Agreement, the Option may only be exercised as to vested
Optioned Shares. No Option shall be exercised as to fewer than 100 shares of
Common Stock or, if less, the total number of shares of Common Stock remaining
unexercised under the Option, and no Option shall be exercisable with respect
to any shares later than ten years after the date the Option is granted.
3. Notice of Exercise and Payment. An Option shall be
exercisable only by delivery of a written notice to the Company's Treasurer
specifying the number of shares of Common Stock for which the Option is being
exercised. If the shares of Common Stock acquired upon exercise of an Option
are not at the time of exercise effectively registered under the Securities
Act, the Optionee shall provide to the Company, as a condition to the
Optionee's exercise of the Option, a letter, in form and substance satisfactory
to the Company, to the effect that the shares are being purchased for the
Optionee's own account for investment and not with a view to distribution or
resale, and to such other effects as the Company deems necessary or appropriate
to comply with federal and applicable state securities laws. Payment shall be
made in full at the time the Option is exercised. Payment shall be made by:
(1) cash;
(2) delivery and assignment to the Company of
shares of Common Stock owned by the Optionee;
(3) delivery of a statement to the Company
directing the Company to withhold so many of
the shares of Common Stock that would
otherwise have been delivered upon the
exercise of the Option as equals the number
of shares of Common Stock that would have
been transferred to the
<PAGE> 2
Company if the purchase price had been paid
with shares of Common Stock owned by the
Optionee;
(4) a combination of (i), (ii) and (iii); or
(5) delivery of a written exercise notice,
including irrevocable instructions to the
Company to deliver the stock certificates
issuable upon exercise of the Option directly
to a broker named in the notice that has
agreed to participate in a "cashless"
exercise on behalf of the Optionee;
except that payment pursuant to subparagraph (v) above shall be permitted only
if the shares of Common Stock of the Company are "Publicly Traded." "Publicly
Traded" shall mean the Common Stock of the Company is listed or admitted to
unlisted trading privileges on a national securities exchange or as to which
sales or bid and offer quotations are reported in the automated quotation
system ("NASDAQ") by the National Association of Securities Dealers Inc.
("NASD").
Upon the Optionee's satisfaction of all conditions required
for the exercise of the Option and payment in full of the purchase price for
the shares being acquired, the Company shall, within a reasonable period of
time following such exercise, deliver a certificate representing the shares of
Common Stock so acquired; provided, that the Company may postpone issuance and
delivery of shares upon any exercise of an Option to the extent necessary or
advisable to comply with applicable exchange listing requirements, NASD
requirements, or federal or state securities laws.
4. Nontransferability of Option. No Option shall be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution and shall be exercisable during the Optionee's lifetime only by
the Optionee (or the Optionee's guardian or legal representative).
5. Termination of Options. The Option shall terminate
if the Optionee ceases for any reason to be a director prior to the Vesting
Date, except if his directorship is terminated by the Company without cause or
as a result of his death or disability (as determined in good faith by the
Committee) in which event the Option shall vest pro rata from the Commencement
Date (as defined in Schedule A) through the date of such termination.
6. Adjustment for Changes in Capitalization.
Appropriate and equitable adjustment shall be made in the number, kind and
option price of shares of Common Stock subject to the Option to give effect to
any changes in the outstanding Common Stock by reason of any stock dividend,
stock split, stock combination, merger, consolidation, reorganization,
recapitalization or any other change in the capital structure of the Company
affecting the Common Stock after the date hereof.
2.
<PAGE> 3
7. Change in Control; Merger, Etc.
(1) Change in Control. Upon the occurrence of
any of the events listed below, the Option shall become immediately exercisable
in full. The events are as follows:
(i) The sale by the Company of all or
substantially all of its assets, or all or
substantially all of the assets of its
Subsidiaries, taken as a whole;
(ii) Any of the following events if,
immediately following such event, a majority
of the Directors consists of persons who were
not Directors immediately prior to the date
of such event:
(a) the sale of 50% or more of the
outstanding shares of Common Stock
of the Company in a single
transaction or related series of
transactions;
(b) the consummation of a tender
offer (by a party other than the
Company) for more than 50% of the
outstanding shares of Common Stock
of the Company; or
(c) subject to subsection (2)
below, the consummation of a merger
or consolidation involving the
Company; or
(iii) An election of new Directors if
immediately following such election a
majority of the Directors consists of persons
who were not nominated by the Board or the
nominating committee thereof to stand for
election as Directors in such election.
(2) Where Company Does Not Survive. In the event
of a merger or consolidation to which the Company is a party but is not the
surviving company, the Committee in its discretion may vote to negate and give
no effect to the acceleration of Options pursuant to subsection (1)(ii)(c)
above, but only if and to the extent that an executed agreement of merger or
consolidation provides that the optionee holding such an Option shall receive
the same merger consideration as the Optionee would have received as a
stockholder of the Company had the exercisability of the Option been
accelerated in accordance with subsection (1)(ii)(c) above and had the
Optionee, immediately prior to the merger or consolidation, exercised the
Option for the full
3.
<PAGE> 4
number of shares subject thereto, paid the exercise price in full, and
satisfied all other conditions for the exercise of the Option.
(3) Liquidation or Dissolution. In the event of
the liquidation or dissolution of the Company, each outstanding Option shall
terminate.
8. Rights of Optionees. An Optionee shall have no
rights as a stockholder with respect to any shares of Common Stock covered by
the Option until the date the Option has been exercised and the full purchase
price for such shares has been received by the Company.
9. Interpretation. Any question of interpretation or
application of the terms of this Option shall be determined by the Board, and
the determination of the Board shall be final and binding for all purposes upon
the Optionee and upon any person claiming by, through or under the Optionee.
In the event the Option becomes subject to any standard Company stock option
plan, the Option will be subject to the terms and conditions of any such plan,
as amended from time to time.
10. Limitations on Exercise, Obligations of Company to
Issue Shares, Tax Treatment.
(a) Violation of Law. Notwithstanding any other
provision hereof, the Optionee, for the Optionee and the Optionee's successors,
if any, agrees that the Optionee will not be permitted to exercise the Option
granted hereby, and no shares of Common Stock shall be issued to the Optionee
or the Optionee's successor hereunder, if the exercise hereof or the issuance
of such shares shall constitute a violation of any provision of law or
regulation of any governmental authority.
(b) Registration. The Company shall not be
required to issue any Optioned Shares unless such shares are at the time
effectively registered or exempt from registration under the Securities Act of
1933, as amended. If, at the time of the exercise of this Option in whole or
in part, in the opinion of counsel for the Company it is necessary or desirable
in order to comply with any applicable law or regulation relating to the
issuance or sale of securities, the Optionee shall agree and represent that the
Optionee is acquiring the Optioned Shares for investment and not with any
present intention to resell the same and that the Optionee will dispose of such
shares only in compliance with such laws and regulations, and the Optionee will
upon the request of the Company, execute and deliver to the Company an
agreement to such effect. Any certificate representing the optioned shares may
bear applicable restrictive legends.
(c) Withholding of Income Taxes. The Company
shall not be required to make any payment or issue any Optioned Shares pursuant
to this Option unless adequate provision had been made to satisfy the Company's
obligation, if any, to withhold income tax in connection with the exercise of
any Option.
4.
<PAGE> 5
(d) Certain Risk Factors. Optionee acknowledged
that the Shares must be held indefinitely unless subsequently registered under
the Act or an exemption from such registration is available. The Optionee
understands that the Shares are highly speculative and that they are and shall
be illiquid and without a market for the foreseeable future. The Optionee
acknowledged that there is no assurance of what, if any, value he or she will
realize on the Option or shares and that no representation or warranty to the
contrary has been made.
(e) Tax Treatment. Optionee acknowledges that
the tax treatment of the Option, Optioned Shares, the exercise of the Option or
any events or transactions with respect thereto may be dependent upon various
factors or events which are not covered by this Agreement and that the Option
or the exercise thereof may have serious tax consequences. The Company makes
no representations with respect to and hereby disclaims all responsibility as
to such tax treatment. Optionee understands and accepts such responsibility
for any tax obligations arising in connection herewith. Optionee understands
that this Option does not qualify as an incentive stock option under the Code.
The Company recommends to Optionee that Optionee obtain his or her own tax
advice in connection with the Option and its exercise.
11. Restrictive Covenant and Shareholders' Agreement. As
further consideration for the grant of the Option, the Optionee agrees that
upon exercise of the Option, in whole or in part, that the Optionee shall enter
into and be bound by such terms and provisions of a shareholders' agreement as
shall be determined by the Board. Any violation of the Restrictive Covenant at
any time as determined by the Company shall cause the immediate termination of
this Option without the need for advance notice.
12. Buy Back Provisions. Shares issued on exercise of
the Option shall upon issuance be subject to the following restrictions. As
used herein, "Restricted Stock" means Shares issued on exercise of the Option
which are still subject to the restrictions imposed under this Section that
have not yet expired or terminated.
(a) Not in limitation of any other restriction
herein, Restricted Stock (or any interest therein) may not be sold, assigned,
pledged or otherwise transferred or hypothecated (a "Transfer").
(b) If the directorship of the Optionee with the
Company is terminated for any reason (including death, retirement in accordance
with the Company's established retirement policies and practices, or total
disability), the Company shall have the option for 90 days after such
termination to purchase for cash all or any part of his Restricted Stock for
the fair market value per Share at the date of termination of employment as
conclusively determined by the Company's Board of Directors, without the need
for an independent valuation or appraisal. A purchase price per share equal to
or greater than the then applicable exercise price per share of incentive stock
options
5.
<PAGE> 6
being granted by the Company at such time shall be deemed fair market value.
The restrictions imposed under this paragraph shall apply as well to all shares
or other securities issued in respect of Restricted Stock in connection with
any stock split, reverse stock split, stock dividend, recapitalization,
reclassification, merger, consolidation or reorganization.
(c) The Optionee hereby grants the Company a
right of first refusal with regard to any Transfer of the Restricted Stock. To
make any Transfer, the Optionee shall have received a bona fide written offer
to Transfer (the "Offer") and shall deliver to the Company a true copy of the
Offer with all material terms and conditions of such Transfer and the Company
shall have 30 days from receipt of such terms to consummate such Offer (as if
it was the offeror) and acquire the Restricted Stock on such terms. In the
event the Company does not exercise this right, the Optionee will be free to
make the Transfer only on the identical terms set forth in the Offer and within
30 days of the expiration of the Company's purchase right. If the terms of the
Offer are modified or the Offer is not consummated within such time period, the
Optionee must repeat the procedure set forth in this paragraph to Transfer the
Restricted Stock.
(d) This Section 12 shall expire and terminate
with respect to any Restricted Stock on the earliest to occur of the following:
(1) The date on which shares of the same
class of stock as the Restricted Stock first become Publicly Traded.
(2) The tenth anniversary of the date
hereof.
(e) Any certificates evidencing shares of
Restricted Stock may contain such legends as the Company may deem necessary or
advisable to reflect and give effect to the restrictions imposed hereunder.
13. Successors and Assigns. This Option shall be binding
upon the successors and assigns of the Company, including any corporation that
succeeds to the business of the Company by merger, consolidation or acquisition
of substantially all of the assets and business of the Company, and employment
of the Optionee by the successor corporation shall not be deemed to interrupt
continuity of employment for the purposes hereof.
14. General Provisions.
(a) Governing Law. This Option will be governed
by and construed according to the laws of the State of New Jersey and any
dispute hereunder will be submitted to the exclusive original jurisdiction of
the Superior Courts of the State of New Jersey, Morris County, or the U.S.
District Court, Newark, New Jersey.
6.
<PAGE> 7
(b) Severability. It is the intention of the
Company and Optionee that the provisions of this Option shall be enforced to
the fullest extent permissible under the laws and public policies of each state
and jurisdiction in which such enforcement is sought, but that the
non-enforceability of any provisions hereof shall not render non-enforceability
or impair the remainder of this Option. Accordingly, if any provisions of this
Option shall be determined to be invalid or non-enforceable, either in whole or
in part, this Option shall be deemed amended to delete or modify, as necessary,
the offending provisions and to alter the balance of this Option in order to
render the same valid and enforceable to the fullest extent permissible.
(c) Amendment. This Option may only be amended,
or a right waived hereunder, in a writing signed by the parties hereto.
(d) Headings. The headings in this Option are
for convenience of reference only and are not part of the substance of this
Option and references to the masculine, feminine or neuter shall apply in all
cases.
OPTIONEE HAS READ THIS AGREEMENT CAREFULLY, HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS REGARDING IT AND UNDERSTANDS ITS TERMS. OPTIONEE HAS VOLUNTARILY
ENTERED INTO THIS AGREEMENT AND HAS BEEN ADVISED THAT THIS AGREEMENT CONTAINS
SERIOUS LEGAL RIGHT AND OBLIGATIONS (INCLUDING POTENTIAL IMPORTANT TAX
CONSEQUENCES) AND THAT OPTIONEE MAY HAVE HIS OWN LAWYER REVIEW THIS AGREEMENT
BEFORE SIGNING.
THINK SYSTEMS CORPORATION
By:
----------------------------
ACCEPTED AND AGREED TO:
-------------------------------
Optionee
Name:
Address:
Dated: _______________
7.
<PAGE> 8
Schedule A
Optionee Name:
Number of Optioned Shares:
Exercise Price per Share:
Commencement Date:
Vesting Schedule:
Accepted By:
---------------------------------
Optionee Signature
---------------------------------
Street Address
---------------------------------
City, State, Zip
<PAGE> 1
EXHIBIT 99.7
I2 TECHNOLOGIES, INC.
STOCK OPTION ASSUMPTION AGREEMENT
NON-QUALIFIED STOCK OPTIONS GRANTED BY
THINK SYSTEMS CORPORATION OUTSIDE PLAN
OPTIONEE: 1~
STOCK OPTION ASSUMPTION AGREEMENT issued as of the 15th day of May,
1997 by i2 Technologies, Inc., a Delaware corporation ("i2 Technologies").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding non-qualified stock options to purchase shares of the common stock
of Think Systems Corporation, a New Jersey corporation ("TSC"), which are
evidenced by a Stock Option Agreement (the "Option Agreement") between TSC and
Optionee.
WHEREAS, TSC has this day been acquired by i2 Technologies through
merger of TSC Acquisition Corporation, a wholly-owned i2 Technologies
subsidiary, with and into TSC (the "Merger") pursuant to the Agreement and Plan
of Merger dated May 15, 1997, by and among i2 Technologies, TSC and TSC
Acquisition Corporation (the "Merger Agreement").
WHEREAS, the provisions of the Merger Agreement require i2
Technologies to assume all obligations of TSC under all outstanding options to
purchase shares of TSC Common Stock at the consummation of the Merger and to
issue to the holder of each outstanding option an agreement evidencing the
assumption of such option.
WHEREAS, pursuant to the provisions of the Merger Agreement, the
exchange ratio in effect for the Merger is 0.286596 of a share of i2
Technologies common stock ("i2 Technologies Stock") for each outstanding share
of TSC Stock (the "Exchange Ratio").
WHEREAS, this Agreement is to become effective immediately upon the
consummation of the Merger (the "Effective Time") in order to reflect certain
adjustments to Optionee's outstanding options which have become necessary by
reason of the assumption of those options by i2 Technologies in connection with
the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of TSC common stock ("TSC Stock") subject to
the stock options held by Optionee immediately prior to the Effective Time (the
"TSC Options") and the exercise price payable per share are set forth in Exhibit
A hereto. i2 Technologies hereby assumes, as of the Effective Time, all the
duties and obligations of TSC
<PAGE> 2
under each of the TSC Options. In connection with such assumption, the number of
shares of i2 Technologies Stock purchasable under each i2 Technologies Option
hereby assumed and the exercise price payable thereunder have been adjusted to
reflect the Exchange Ratio. Accordingly, the number of shares of i2 Technologies
Stock subject to each TSC Option hereby assumed shall be as specified for that
option in attached Exhibit B, and the adjusted exercise price payable per share
of i2 Technologies Stock under the assumed TSC Option shall be as indicated for
that option in attached Exhibit B.
2. The intent of the foregoing adjustments to each assumed TSC
Option is to assure that the spread between the aggregate fair market value of
the shares of i2 Technologies Stock purchasable under each such option and the
aggregate exercise price as adjusted pursuant to this agreement will,
immediately after the consummation of the Merger, equal the spread which
existed, immediately prior to the Merger, between the then aggregate fair market
value of the TSC Stock subject to the TSC Option and the aggregate exercise
price in effect at such time under the Option Agreement. Such adjustments are
also designed to preserve, immediately after the Merger, on a per share basis,
the same ratio of exercise price per option share to fair market value per share
which existed under the TSC Option immediately prior to the Merger.
3. The following provisions shall govern each TSC Option hereby
assumed by i2 Technologies:
(a) Unless the context otherwise requires, all
references to the "Company" in each Option Agreement shall mean i2
Technologies, all references to "Common Stock" shall mean shares of
i2 Technologies Stock, all references to the "Board" or the
"Directors" shall mean the i2 Technologies Board of Directors or
Directors.
(b) The grant date and the expiration date of each
assumed TSC Option and all other provisions which govern either the
exercisability or the termination of the assumed TSC Option shall
remain the same as set forth in the Option Agreement applicable to
that option and shall accordingly govern and control Optionee's
rights under this Agreement to purchase i2 Technologies Stock.
(c) Pursuant to the terms of the Option
Agreements, each TSC Option will automatically accelerate in full
and become exercisable for all of the option shares as of the
Effective Time. Each TSC Option, as so accelerated, will be assumed
by i2 Technologies as of the Effective Time, adjusted in accordance
with the provisions of paragraph 1 above, and will remain
exercisable for all of the underlying option shares as fully vested
shares of i2 Technologies Stock, until the expiration of such option
in accordance with the terms of the Option Agreement.
2.
<PAGE> 3
(d) The adjusted exercise price payable for the i2
Technologies Stock subject to each assumed TSC Option shall be
payable in any of the forms authorized under the Option Agreement
applicable to that option. For purposes of determining the holding
period of any shares of i2 Technologies Stock delivered in payment
of such adjusted exercise price, the period for which such shares
were held as TSC Stock prior to the Merger shall be taken into
account.
(e) In order to exercise each assumed TSC Option,
Optionee must deliver to i2 Technologies a written notice of
exercise in which the number of shares of i2 Technologies Stock to
be purchased thereunder must be indicated. The exercise notice must
be accompanied by payment of the adjusted exercise price payable for
the purchased shares of i2 Technologies Stock and should be
delivered to i2 Technologies at the following address:
i2 Technologies, Inc.
909 E. Las Colinas Boulevard, 16th Floor
Irving, Texas 75039
Attention: ________________
4. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of each Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Stock
Option Assumption Agreement.
3.
<PAGE> 4
IN WITNESS WHEREOF, i2 Technologies, Inc. has caused this Stock Option
Assumption Agreement to be executed on its behalf by its duly-authorized officer
as of the ___ day of _____, 1997.
I2 TECHNOLOGIES, INC.
By:
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to each of his or her TSC Options hereby assumed by i2 Technologies,
Inc. are as set forth in the Option Agreement, the Plan and such Stock Option
Assumption Agreement.
1~, OPTIONEE
DATED: __________________, 199_
4.
<PAGE> 5
EXHIBIT A
Optionee's Outstanding Options to Purchase Shares of Think Systems Corporation
Common Stock (Pre-Merger)
<PAGE> 6
EXHIBIT B
Optionee's Outstanding Options to Purchase Shares of i2 Technologies, Inc.
Common Stock (Post-Merger)
<PAGE> 1
EXHIBIT 99.8
THINK SYSTEMS CORPORATION
NON-QUALIFIED STOCK OPTION
1. Option. For valuable consideration, receipt of which
is hereby acknowledged, THINK SYSTEMS CORPORATION, a New Jersey corporation
(the "Company"), hereby grants to R. SWAMINATHAN ("Optionee"), the managing
director of Think Systems Private Limited, an Indian corporation affiliated
with the Company (TSI), the right and option (the "Option") to purchase from
the Company, subject to the terms and conditions hereof, the number of shares
(the "Optioned Shares") of the Company's Common Stock, no par value (the
"Common Stock"), at a price per share (the "Option Price") as designated on
Schedule A hereto.
2. Terms of Exercise. The Option shall be deemed vested
as of the date of this Agreement. No Option shall be exercised as to fewer
than 100 shares of Common Stock or, if less, the total number of shares of
Common Stock remaining unexercised under the Option, and no Option shall be
exercisable with respect to any shares later than ten years after the date the
Option is granted. Notwithstanding anything to the contrary in this Agreement,
the Option may only be exercised (a) if Indian (and any other applicable) law
is complied with; (b) if any necessary governmental approvals are received; and
(c) so long as Indian law requires, if paid for through a "cashless"
transaction under Section 3, subparagraph (iii) or (v).
3. Notice of Exercise and Payment. An Option shall be
exercisable only by delivery of a written notice to the Company's Treasurer
specifying the number of shares of Common Stock for which the Option is being
exercised. If the shares of Common Stock acquired upon exercise of an Option
are not at the time of exercise effectively registered under the Securities
Act, the Optionee shall provide to the Company, as a condition to the
Optionee's exercise of the Option, a letter, in form and substance satisfactory
to the Company, to the effect that the shares are being purchased for the
Optionee's own account for investment and not with a view to distribution or
resale, and to such other effects as the Company deems necessary or appropriate
to comply with federal and applicable state securities laws. Payment shall be
made in full at the time the Option is exercised. Payment shall be made by:
(i) cash;
(ii) delivery and assignment to the Company of
shares of Common Stock owned by the Optionee;
(iii) delivery of a statement to the Company
directing the Company to withhold so many of
the shares of Common
<PAGE> 2
Stock that would otherwise have been
delivered upon the exercise of the Option as
equals the number of shares of Common Stock
that would have been transferred to the
Company if the purchase price had been paid
with shares of Common Stock owned by the
Optionee;
(iv) a combination of (i), (ii) and (iii); or
(v) delivery of a written exercise notice,
including irrevocable instructions to the
Company to deliver the stock certificates
issuable upon exercise of the Option directly
to a broker named in the notice that has
agreed to participate in a "cashless"
exercise on behalf of the Optionee;
except that payment pursuant to subparagraph (v) above shall be permitted only
if the shares of Common Stock of the Company are "Publicly Traded." "Publicly
Traded" shall mean the Common Stock of the Company is listed or admitted to
unlisted trading privileges on a national securities exchange or as to which
sales or bid and offer quotations are reported in the automated quotation
system ("NASDAQ") by the National Association of Securities Dealers Inc.
("NASD").
Upon the Optionee's satisfaction of all conditions required
for the exercise of the Option and payment in full of the purchase price for
the shares being acquired, the Company shall, within a reasonable period of
time following such exercise, deliver a certificate representing the shares of
Common Stock so acquired; provided, that the Company may postpone issuance and
delivery of shares upon any exercise of an Option to the extent necessary or
advisable to comply with applicable exchange listing requirements, NASD
requirements, or federal or state securities laws.
4. Nontransferability of Option. No Option shall be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution and shall be exercisable during the Optionee's lifetime only by
the Optionee (or the Optionee's guardian or legal representative).
5. Intentionally omitted.
6. Adjustment for Changes in Capitalization.
Appropriate and equitable adjustment shall be made in the number, kind and
option price of shares of Common Stock subject to the Option to give effect to
any changes in the outstanding Common Stock by reason of any stock dividend,
stock split, stock combination, merger, consolidation, reorganization,
recapitalization or any other change in the capital structure of the Company
affecting the Common Stock after the date hereof.
2.
<PAGE> 3
7. Liquidation or Dissolution. In the event of the
liquidation or dissolution of the Company, each outstanding Option shall
terminate.
8. Rights of Optionees. An Optionee shall have no
rights as a stockholder with respect to any shares of Common Stock covered by
the Option until the date the Option has been exercised and the full purchase
price for such shares has been received by the Company.
9. Interpretation. Any question of interpretation or
application of the terms of this Option shall be determined by the Board of
Directors of the Company, and the determination of the Board shall be final and
binding for all purposes upon the Optionee and upon any person claiming by,
through or under the Optionee.
10. Limitations on Exercise, Obligations of Company to
Issue Shares, Tax Treatment.
(a) Violation of Law. Notwithstanding any other
provision hereof, the Optionee, for the Optionee and the Optionee's successors,
if any, agrees that the Optionee will not be permitted to exercise the Option
granted hereby, and no shares of Common Stock shall be issued to the Optionee
or the Optionee's successor hereunder, if the exercise hereof or the issuance
of such shares shall constitute a violation of any provision of law or
regulation of any governmental authority.
(b) Registration. The Company shall not be
required to issue any Optioned Shares unless such shares are at the time
effectively registered or exempt from registration under the Securities Act of
1933, as amended. If, at the time of the exercise of this Option in whole or
in part, in the opinion of counsel for the Company it is necessary or desirable
in order to comply with any applicable law or regulation relating to the
issuance or sale of securities, the Optionee shall agree and represent that the
Optionee is acquiring the Optioned Shares for investment and not with any
present intention to resell the same and that the Optionee will dispose of such
shares only in compliance with such laws and regulations, and the Optionee will
upon the request of the Company, execute and deliver to the Company an
agreement to such effect. Any certificate representing the optioned shares may
bear applicable restrictive legends.
(c) Withholding of Income Taxes. The Company
shall not be required to make any payment or issue any Optioned Shares pursuant
to this Option unless adequate provision had been made to satisfy the Company's
obligation, if any, to withhold income tax in connection with the exercise of
any Option.
(d) Certain Risk Factors. Optionee acknowledged
that the Shares must be held indefinitely unless subsequently registered under
the Act or an exemption from such registration is available. The Optionee
understands that the Shares are highly speculative and that they are and shall
be illiquid and without a market for
3.
<PAGE> 4
the foreseeable future. The Optionee acknowledged that there is no assurance
of what, if any, value he or she will realize on the Option or shares and that
no representation or warranty to the contrary has been made.
(e) Tax Treatment. Optionee acknowledges that
the tax treatment of the Option, Optioned Shares, the exercise of the Option or
any events or transactions with respect thereto may be dependent upon various
factors or events which are not covered by this Agreement and that the Option
or the exercise thereof may have serious tax consequences. The Company makes
no representations with respect to and hereby disclaims all responsibility as
to such tax treatment. Optionee understands and accepts such responsibility
for any tax obligations arising in connection herewith. Optionee understands
that this Option does not qualify as an incentive stock option under the Code.
The Company recommends to Optionee that Optionee obtain his or her own tax
advice in connection with the Option and its exercise.
11. Restrictive Covenant and Shareholders' Agreement. As
further consideration for the grant of the Option, the Optionee agrees that
upon exercise of the Option, in whole or in part, that the Optionee shall enter
into and be bound by such terms and provisions of a shareholders' agreement as
shall be determined by the Board. Any violation of the Restrictive Covenant at
any time as determined by the Company shall cause the immediate termination of
this Option without the need for advance notice.
12. Buy Back Provisions. Shares issued on exercise of
the Option shall upon issuance be subject to the following restrictions. As
used herein, "Restricted Stock" means Shares issued on exercise of the Option
which are still subject to the restrictions imposed under this Section that
have not yet expired or terminated.
(a) Not in limitation of any other restriction
herein, Restricted Stock (or any interest therein) may not be sold, assigned,
pledged or otherwise transferred or hypothecated (a "Transfer").
(b) If the employment of the Optionee with TSI is
terminated for any reason (including death, retirement in accordance with the
Company's established retirement policies and practices, or total disability),
the Company shall have the option for 90 days after such termination to
purchase for cash all or any part of his Restricted Stock for the fair market
value per Share at the date of termination of employment as conclusively
determined by the Company's Board of Directors, without the need for an
independent valuation or appraisal. A purchase price per share equal to or
greater than the then applicable exercise price per share of incentive stock
options being granted by the Company at such time shall be deemed fair market
value. The restrictions imposed under this paragraph shall apply as well to
all shares or other securities issued in respect of Restricted Stock in
connection with any stock split, reverse stock split, stock dividend,
recapitalization, reclassification, merger, consolidation or reorganization.
4.
<PAGE> 5
(c) The Optionee hereby grants the Company a
right of first refusal with regard to any Transfer of the Restricted Stock. To
make any Transfer, the Optionee shall have received a bona fide written offer
to Transfer (the "Offer") and shall deliver to the Company a true copy of the
Offer with all material terms and conditions of such Transfer and the Company
shall have 30 days from receipt of such terms to consummate such Offer (as if
it was the offeror) and acquire the Restricted Stock on such terms. In the
event the Company does not exercise this right, the Optionee will be free to
make the Transfer only on the identical terms set forth in the Offer and within
30 days of the expiration of the Company's purchase right. If the terms of the
Offer are modified or the Offer is not consummated within such time period, the
Optionee must repeat the procedure set forth in this paragraph to Transfer the
Restricted Stock.
(d) This Section 12 shall expire and terminate
with respect to any Restricted Stock on the earliest to occur of the following:
(i) The date on which shares of the same
class of stock as the Restricted Stock first become Publicly Traded.
(ii) The tenth anniversary of the date
hereof.
(e) Any certificates evidencing shares of
Restricted Stock may contain such legends as the Company may deem necessary or
advisable to reflect and give effect to the restrictions imposed hereunder.
13. Successors and Assigns. This Option shall be binding
upon the successors and assigns of the Company, including any corporation that
succeeds to the business of the Company by merger, consolidation or acquisition
of substantially all of the assets and business of the Company, and employment
of the Optionee by the successor corporation shall not be deemed to interrupt
continuity of employment for the purposes hereof.
14. General Provisions.
(a) Governing Law. This Option will be governed
by and construed according to the laws of the State of New Jersey and any
dispute hereunder will be submitted to the exclusive original jurisdiction of
the Superior Courts of the State of New Jersey, Morris County, or the U.S.
District Court, Newark, New Jersey.
(b) Severability. It is the intention of the
Company and Optionee that the provisions of this Option shall be enforced to
the fullest extent permissible under the laws and public policies of each state
and jurisdiction in which such enforcement is sought, but that the
non-enforceability of any provisions hereof shall not render non-enforceability
or impair the remainder of this Option. Accordingly, if any provisions of this
Option shall be determined to be invalid or non-enforceable, either in
5.
<PAGE> 6
whole or in part, this Option shall be deemed amended to delete or modify, as
necessary, the offending provisions and to alter the balance of this Option in
order to render the same valid and enforceable to the fullest extent
permissible.
(c) Amendment. This Option may only be amended,
or a right waived hereunder, in a writing signed by the parties hereto.
(d) Headings. The headings in this Option are
for convenience of reference only and are not part of the substance of this
Option and references to the masculine, feminine or neuter shall apply in all
cases.
OPTIONEE HAS READ THIS AGREEMENT CAREFULLY, HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS REGARDING IT AND UNDERSTANDS ITS TERMS. OPTIONEE HAS VOLUNTARILY
ENTERED INTO THIS AGREEMENT AND HAS BEEN ADVISED THAT THIS AGREEMENT CONTAINS
SERIOUS LEGAL RIGHT AND OBLIGATIONS (INCLUDING POTENTIAL IMPORTANT TAX
CONSEQUENCES) AND THAT OPTIONEE MAY HAVE HIS OWN LAWYER REVIEW THIS AGREEMENT
BEFORE SIGNING.
THINK SYSTEMS CORPORATION
By:
---------------------------
ACCEPTED AND AGREED TO:
-----------------------------
Optionee
Name:
Address:
Dated: _______________
6.
<PAGE> 7
Think Systems Corporation
Incentive Stock Options
Schedule A
Optionee Name: R. Swaminathan
Number of Optioned Shares: 40,000
Exercise Price per Share: $0.50
Vesting Schedule: All shares vested at date of grant.
Accepted By:
---------------------------
Optionee Signature
---------------------------
Street Address
---------------------------
City, State, Zip
<PAGE> 1
EXHIBIT 99.9
I2 TECHNOLOGIES, INC.
STOCK OPTION ASSUMPTION AGREEMENT
NON-QUALIFIED STOCK OPTIONS GRANTED BY
THINK SYSTEMS CORPORATION OUTSIDE PLAN
OPTIONEE: R. Swaminathan
STOCK OPTION ASSUMPTION AGREEMENT issued as of the 15th day of May,
1997 by i2 Technologies, Inc., a Delaware corporation ("i2 Technologies").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding non-qualified stock options to purchase shares of the common stock
of Think Systems Corporation, a New Jersey corporation ("TSC"), which are
evidenced by a Stock Option Agreement (the "Option Agreement") between TSC and
Optionee.
WHEREAS, TSC has this day been acquired by i2 Technologies through
merger of TSC Acquisition Corporation, a wholly-owned i2 Technologies
subsidiary, with and into TSC (the "Merger") pursuant to the Agreement and Plan
of Merger dated May 15, 1997, by and among i2 Technologies, TSC and TSC
Acquisition Corporation (the "Merger Agreement").
WHEREAS, the provisions of the Merger Agreement require i2 Technologies
to assume all obligations of TSC under all outstanding options to purchase
shares of TSC Common Stock at the consummation of the Merger and to issue to the
holder of each outstanding option an agreement evidencing the assumption of such
option.
WHEREAS, pursuant to the provisions of the Merger Agreement, the
exchange ratio in effect for the Merger is 0.286596 of a share of i2
Technologies common stock ("i2 Technologies Stock") for each outstanding share
of TSC Stock (the "Exchange Ratio").
WHEREAS, this Agreement is to become effective immediately upon the
consummation of the Merger (the "Effective Time") in order to reflect certain
adjustments to Optionee's outstanding options which have become necessary by
reason of the assumption of those options by i2 Technologies in connection with
the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of TSC common stock ("TSC Stock") subject to
the stock options held by Optionee immediately prior to the Effective Time (the
"TSC Options") and the exercise price payable per share are set forth in Exhibit
A hereto. i2 Technologies hereby assumes, as of the Effective Time, all the
duties and obligations of TSC
<PAGE> 2
under each of the TSC Options. In connection with such assumption, the number of
shares of i2 Technologies Stock purchasable under each i2 Technologies Option
hereby assumed and the exercise price payable thereunder have been adjusted to
reflect the Exchange Ratio. Accordingly, the number of shares of i2 Technologies
Stock subject to each TSC Option hereby assumed shall be as specified for that
option in attached Exhibit B, and the adjusted exercise price payable per share
of i2 Technologies Stock under the assumed TSC Option shall be as indicated for
that option in attached Exhibit B.
2. The intent of the foregoing adjustments to each assumed TSC Option
is to assure that the spread between the aggregate fair market value of the
shares of i2 Technologies Stock purchasable under each such option and the
aggregate exercise price as adjusted pursuant to this agreement will,
immediately after the consummation of the Merger, equal the spread which
existed, immediately prior to the Merger, between the then aggregate fair market
value of the TSC Stock subject to the TSC Option and the aggregate exercise
price in effect at such time under the Option Agreement. Such adjustments are
also designed to preserve, immediately after the Merger, on a per share basis,
the same ratio of exercise price per option share to fair market value per share
which existed under the TSC Option immediately prior to the Merger.
3. The following provisions shall govern each TSC Option hereby assumed
by i2 Technologies:
(a) Unless the context otherwise requires, all
references to the "Company" in each Option Agreement shall mean i2
Technologies, all references to "Common Stock" shall mean shares of
i2 Technologies Stock, all references to the "Board" or the
"Directors" shall mean the i2 Technologies Board of Directors or
Directors.
(b) The grant date and the expiration date of each
assumed TSC Option and all other provisions which govern either the
exercisability or the termination of the assumed TSC Option shall
remain the same as set forth in the Option Agreement applicable to
that option and shall accordingly govern and control Optionee's
rights under this Agreement to purchase i2 Technologies Stock.
(c) The adjusted exercise price payable for the i2
Technologies Stock subject to each assumed TSC Option shall be
payable in any of the forms authorized under the Option Agreement
applicable to that option. For purposes of determining the holding
period of any shares of i2 Technologies Stock delivered in payment
of such adjusted exercise price, the period for which such shares
were held as TSC Stock prior to the Merger shall be taken into
account.
2.
<PAGE> 3
(d) In order to exercise each assumed TSC Option,
Optionee must deliver to i2 Technologies a written notice of
exercise in which the number of shares of i2 Technologies Stock to
be purchased thereunder must be indicated. The exercise notice must
be accompanied by payment of the adjusted exercise price payable for
the purchased shares of i2 Technologies Stock and should be
delivered to i2 Technologies at the following address:
i2 Technologies, Inc.
909 E. Las Colinas Boulevard, 16th Floor
Irving, Texas 75039
Attention: ________________
4. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of each Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Stock
Option Assumption Agreement.
3.
<PAGE> 4
IN WITNESS WHEREOF, i2 Technologies, Inc. has caused this Stock Option
Assumption Agreement to be executed on its behalf by its duly-authorized officer
as of the ___ day of _____, 1997.
I2 TECHNOLOGIES, INC.
By:_________________________________
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock
Option Assumption Agreement and understands that all rights and liabilities with
respect to each of his or her TSC Options hereby assumed by i2 Technologies,
Inc. are as set forth in the Option Agreement, the Plan and such Stock Option
Assumption Agreement.
___________________________________
R. SWAMINATHAN, OPTIONEE
DATED: __________________, 199_
4.
<PAGE> 5
EXHIBIT A
Optionee's Outstanding Options to Purchase Shares of Think Systems Corporation
Common Stock (Pre-Merger)
<PAGE> 6
EXHIBIT B
Optionee's Outstanding Options to Purchase Shares of i2 Technologies, Inc.
Common Stock (Post-Merger)
<PAGE> 1
EXHIBIT 99.10
OPTIMAX SYSTEMS CORPORATION
STOCK OPTION PLAN
1. PURPOSE OF THE PLAN. This stock option plan (the
"Plan") is intended to encourage ownership of the stock of OPTIMAX SYSTEMS
CORPORATION, a Delaware corporation (the "Company") by employees and advisors
of the Company and its subsidiaries, to induce qualified personnel to enter and
remain in the employ of the Company or its subsidiaries and otherwise to
provide additional incentive for optionees to promote the success of its
business.
2. STOCK SUBJECT TO THE PLAN.
(a) The total number of shares of the authorized but
unissued or Treasury shares of the common stock, $0.001 par value, of the
Company ("Common Stock") for which options may be granted under the Plan shall
not exceed Six Hundred Twenty-Five Thousand (625,000) shares, subject to
adjustment as provided in Section 12 hereof.
(b) If an option granted hereunder shall expire or
terminate for any reason without having vested fully or having been exercised
in full, the unvested and/or unpurchased shares subject thereto shall again be
available for subsequent option grants under the Plan.
(c) Stock issuable upon exercise of an option granted
under the Plan may be subject to such restrictions on transfer, repurchase
rights or other restrictions as shall be determined by the Board of Directors.
<PAGE> 2
3. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board of
Directors of the Company (the "Board of Directors"). No member of the Board of
Directors shall act upon any matter exclusively affecting any option granted or
to be granted to himself or herself under the Plan. A majority of the members
of the Board of Directors shall constitute a quorum, and any action may be
taken by a majority of those present and voting at any meeting. The decision
of the Board of Directors as to all questions of interpretation and application
of the Plan shall be final, binding and conclusive on all persons. The
selection of persons for participation in the Plan and all decisions concerning
the timing, pricing and amount of any grant or award under the Plan shall be
made solely by the Board of Directors. The Board of Directors shall have
authority, subject to the express provisions of the Plan, to construe the
respective option agreements and the Plan, to prescribe, amend and rescind
rules and regulations relating to the Plan, to determine the terms and
provisions of the respective option agreements, which may but need not be
identical, and to make all other determinations in the judgment of the Board of
Directors necessary or desirable for the administration of the Plan. The Board
of Directors may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option agreement in the manner and to the
extent it shall deem expedient to carry the Plan into effect and shall be the
sole and final judge of such expediency. No director shall be liable for any
action or determination made in good faith.
2.
<PAGE> 3
(b) The Board of Directors may, in its discretion,
delegate its powers, duties and responsibilities to a committee (the
"Committee") consisting of two or more directors, each of whom is a
"Non-Employee Director" (as defined from time to time in Rule 16b-3 promulgated
under the Securities and Exchange Act of 1934). The selection of persons for
participation in the Plan and all decisions concerning the timing, pricing and
amount of any grant or award under the Plan shall be made solely by the
Committee, if so appointed. The Board of Directors may at any time and from
time to time appoint a member or members of the Committee in substitution for
or in addition to the member or members then in office and may fill vacancies
on the Committee however caused. The Committee shall choose one of its members
as Chairman and shall hold meetings at such times and places as it shall deem
advisable. A majority of the members of the Committee shall constitute a
quorum and any action may be taken by a majority of those present and voting at
any meeting. Any action may also be taken without the necessity of a meeting
by a written instrument signed by a majority of the Committee. The decision of
the Committee as to all questions of interpretation and application of the Plan
shall be final, binding and conclusive on all persons. The Committee shall
have the authority to adopt, amend and rescind such rules and regulations as,
in its opinion, may be advisable in the administration of the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option agreement granted hereunder in the
manner and to the extent it shall deem expedient to carry the Plan into effect
and shall be the sole and final judge of such expediency. No Committee member
shall be liable for any action or
3.
<PAGE> 4
determination made in good faith. If a committee is so appointed, all
references to the Board of Directors herein shall mean and relate to such
committee, unless the context otherwise requires.
4. TYPE OF OPTIONS. Options granted pursuant to the
Plan shall be authorized by action of the Board of Directors and may be
designated as either incentive stock options meeting the requirements of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
non-qualified options which are not intended to meet the requirements of such
Section 422 of the Code, the designation to be in the sole discretion of the
Board of Directors. The Plan shall be administered by the Board of Directors
in such manner as to permit options to qualify as incentive stock options under
the Code.
5. ELIGIBILITY. Options designated as incentive stock
options shall be granted only to key employees (including officers and
directors who are also employees) of the Company and its subsidiaries. Options
designated as non-qualified options may be granted to officers, key employees
and consultants, advisors, non-employees directors of the Company or of any of
its subsidiaries. "Subsidiary" or "subsidiaries" shall be as defined in
Section 424 of the Code and the Treasury Regulations promulgated thereunder
(the "Regulations").
Directors who are not otherwise employees of or advisors to
the Company or a subsidiary shall not be eligible to be granted an option
pursuant to the Plan.
The Board of Directors shall, from time to time, at its sole
discretion, select from such eligible individuals, those to whom options shall
be granted and shall
4.
<PAGE> 5
determine the number of shares to be subject to each option. In determining
the eligibility of an individual to be granted an option, as well as in
determining the number of shares to be granted to any individual, the Board of
Directors in its sole discretion shall take into account the position and
responsibilities of the individual being considered, the nature and value to
the Company or its subsidiaries of his or her service and accomplishments, his
or her present and potential contribution to the success of the Company or its
subsidiaries, and such other factors as the Board of Directors may deem
relevant.
No option designated as an incentive stock option shall be
granted to any employee of the Company or any subsidiary if such employee owns,
immediately prior to the grant of an option, stock representing more than 10%
of the voting power or more than 10% of the value of all classes of stock of
the Company or a parent or a subsidiary, unless the purchase price for the
stock under such option shall be at least 110% of its fair market value at the
time such option is granted and the option, by its terms, shall not be
exercisable more than five years from the date it is granted. In determining
the stock ownership under this paragraph, the provisions of Section 424(d) of
the Code shall be controlling. In determining the fair market value under this
paragraph, the provisions of Section 7 hereof shall apply.
6. OPTION AGREEMENT. Each option shall be evidenced by
an option agreement (the "Agreement") duly executed on behalf of the Company
and by the optionee to whom such option is granted, which Agreement shall
comply with and be subject to the terms and conditions of the Plan. The
Agreement may contain such other
5.
<PAGE> 6
terms, provisions and conditions which are not inconsistent with the Plan as
may be determined by the Board of Directors, provided that options designated
as incentive stock options shall meet all of the conditions for incentive stock
options as defined in Section 422 of the Code. The date of grant of an option
shall be as determined by the Board of Directors. More than one option may be
granted to an individual.
7. OPTION PRICE. The option price or prices of shares
of the Company's Common Stock for options designated as non- qualified stock
options shall be the price or prices determined by the Board of Directors. The
option price or prices of shares of the Company's Common Stock for incentive
stock options shall be the fair market value of such Common Stock at the time
the option is granted as determined by the Board of Directors in accordance
with the Regulations promulgated under Section 422 of the Code. If such shares
are then listed on any national securities exchange, the fair market value
shall be the mean between the high and low sales prices, if any, on the largest
such exchange on the business day immediately preceding the date of the grant
of the option or, if none, shall be determined by taking a weighted average of
the means between the highest and lowest sales prices on the nearest date
before and the nearest date after the date of grant in accordance with Treasury
Regulations Section 25.2512-2. If the shares are not then listed on any such
exchange, the fair market value of such shares shall be the mean between the
high and low sales prices, if any, as reported in the National Association of
Securities Dealers Automated Quotation National Market ("NASDAQ/NM") for the
business day immediately preceding the date of the grant of the option, or, if
none, shall be determined by taking a weighted average of the means
6.
<PAGE> 7
between the highest and lowest sales on the nearest date before and the nearest
date after the date of grant in accordance with Treasury Regulations Section
25.2512-2. If the shares are not then either listed on any such exchange or
quoted in NASDAQ/NM, the fair market value shall be the mean between the
average of the "Bid" and the average of the "Ask" prices, if any, as reported
in the National Daily Quotation Service for the business day immediately
preceding the date of the grant of the option, or, if none, shall be determined
by taking a weighted average of the means between the highest and lowest sales
prices on the nearest date before and the nearest date after the date of grant
in accordance with Treasury Regulations Section 25.2512-2. If the fair market
value cannot be determined under the preceding three sentences, it shall be
determined in good faith by the Board of Directors.
8. MANNER OF PAYMENT; MANNER OF EXERCISE.
(a) Options granted under the Plan may provide for the
payment of the exercise price, as determined by the Board of Directors, by
delivery of (i) cash or a check payable to the order of the Company in an
amount equal to the exercise price of such options, (ii) shares of Common Stock
of the Company owned by the optionee having a fair market value equal in amount
to the exercise price of the options being exercised, or (iii) any combination
of (i) and (ii), provided, however, that payment of the exercise price by
delivery of shares of Common Stock of the Company owned by such optionee may be
made only if such payment does not result in a charge to earnings for financial
accounting purposes as determined by the Board of Directors, or (iv) payment
may also be made by delivery of a properly executed exercise notice to the
Company,
7.
<PAGE> 8
together with a copy of irrevocable instruments to a broker to deliver promptly
to the Company the amount of sale or loan proceeds to pay the exercise price.
The fair market value of any shares of the Company's Common Stock which may be
delivered upon exercise of an option shall be determined by the Board of
Directors in accordance with Section 7 hereof. To facilitate clause (iv)
above, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms. The date of exercise shall be the date of
delivery of such exercise notice or payment.
(b) To the extent that the right to purchase shares under
an option has accrued and is in effect, options may be exercised in full at one
time or in part from time to time, by giving written notice, signed by the
person or persons exercising the option, to the Company, stating the number of
shares with respect to which the option is being exercised, accompanied by
payment in full for such shares as provided in subparagraph (a) above. Upon
such exercise, delivery of a certificate for paid-up non-assessable shares
shall be made at the principal office of the Company to the person or persons
exercising the option at such time, during ordinary business hours, after five
(5) but not more than twenty (20) business days from the date of receipt of the
notice by the Company, as shall be designated in such notice, or at such time,
place and manner as may be agreed upon by the Company and the person or persons
exercising the option. Upon exercise of the option and payment as provided
above, the optionee shall become a shareholder of the Company as to the Shares
acquired upon such exercise.
9. EXERCISE OF OPTIONS. Except as otherwise determined
from time to time by the Board of Directors, options granted under the Plan
shall, subject to
8.
<PAGE> 9
Section 10(b) and Section 12 hereof, not be exercisable during the first twelve
(12) months after the date of grant. Thereafter, options shall become
exercisable as to two and five-sixtieths percent (2-5/60%) of the shares
covered thereby upon the expiration of each of the next forty-eight (48)
months thereafter.
To the extent that an option to purchase shares is not
exercised by an optionee when it becomes initially exercisable, it shall not
expire but shall be carried forward and shall be exercisable, on a cumulative
basis, until the expiration of the exercise period. No partial exercise may be
made for less than one hundred (100) full shares of Common Stock.
Notwithstanding the foregoing, the Board of Directors may in
its discretion (i) specifically provide for another time or times of exercise
or (ii) accelerate the exercisability of any option subject to such terms and
conditions as the Board of Directors deems necessary and appropriate.
10. TERM OF OPTIONS; EXERCISABILITY.
(a) Term.
(1) Each option shall expire not more than ten
(10) years from the date of the granting thereof, but shall be subject to
earlier termination as herein provided.
(2) Except as otherwise provided in this Section
10, an option granted to any employee optionee who ceases to be an employee of
the Company or one or its subsidiaries shall terminate upon the expiration of
sixty (60) days after the date such optionee ceases to be an employee of the
Company or one or its subsidiaries, or on
9.
<PAGE> 10
the date on which the option expires by its terms, whichever occurs first.
(3) If such termination of employment is because
of dismissal for cause or because the employee is in breach of any employment
agreement, such option will terminate on the date the optionee ceases to be an
employee of the Company or one of its subsidiaries.
(4) If such termination of employment is because
the optionee has become permanently disabled (within the meaning of Section
22(e)(3) of the Code), such option shall terminate upon the expiration of one
(1) year from the date such optionee ceases to be an employee, or on the date
on which the option expires by its terms, whichever occurs first.
(5) In the event of the death of any optionee,
any option granted to such optionee shall terminate upon the expiration of one
(1) year from the date of death, or on the date on which the option expires by
its terms, whichever occurs first.
(6) Notwithstanding subparagraphs (2), (3), (4)
and (5) above, the Board of Directors shall have the authority to extend the
expiration date of any outstanding option in circumstances in which it deems
such action to be appropriate, provided that no such extension shall extend the
term of an option beyond the date on which the option would have expired if no
termination of the optionee's employment had occurred.
(b) Exercisability. Except as otherwise determined by
the Board of Directors in specific cases, and option granted to an employee
optionee who ceases to be an employee of the Company or one of its
subsidiaries, including by reason of such
10.
<PAGE> 11
employee's death or disability, shall be exercisable only to the extent that
the right to purchase shares under such option has accrued and is in effect on
the date such optionee ceases to be an employee of the Company or one of its
subsidiaries.
11. OPTIONS NOT TRANSFERABLE. The right of any optionee
to exercise any option granted to him or her shall not be assignable or
transferable by such optionee otherwise than by will or the laws of descent and
distribution, and any such option shall be exercisable during the lifetime of
such optionee only by him. Any option granted under the Plan shall be null and
void and without effect upon the bankruptcy of the optionee to whom the option
is granted, or upon any attempted assignment or transfer, except as herein
provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition,
attachment, divorce, trustee process or similar process, whether legal or
equitable, upon such option.
12. RECAPITALIZATIONS, REORGANIZATIONS AND THE LIKE.
(a) In the event that the outstanding shares of the
Common Stock of the Company are changed into or exchanged for a different
number or kind of shares or other securities of the Company or of another
corporation by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares, or
dividends payable in capital stock, appropriate adjustment shall be made in the
number and kind of shares as to which options may be granted under the Plan and
as to which outstanding options or portions thereof then unexercised shall be
exercisable, to the end that the proportionate interest of the optionee shall
be
11.
<PAGE> 12
maintained as before the occurrence of such event; such adjustment in
outstanding options shall be made without change in the total price applicable
to the unexercised portion of such options and with a corresponding adjustment
in the option price per share.
(b) In addition, unless otherwise as determined by the
Board of Directors in its sole discretion, in the case of any (i) sale or
conveyance to another entity of all or substantially all of the property and
assets of the Company, including, without limitation, by way of merger or
consolidation, or (ii) Change in Control (as hereinafter defined) of the
Company, the purchaser(s) of the Company's assets or stock may, in his, her or
its discretion, deliver to the optionee the same kind of consideration that is
delivered to the shareholders of the Company as a result of such sale,
conveyance or Change in Control, or the Board of Directors may cancel all
outstanding options in exchange for consideration in cash or in kind, which
consideration in both cases shall be equal in value to the value of those
shares of stock or other securities the optionee would have received had the
option been exercised (to the extent then exercisable) and no disposition of
the shares acquired upon such exercise been made prior to such sale, conveyance
or Change in Control, less the option price therefor. Upon receipt of such
consideration by the optionee, his or her option shall immediately terminate
and be of no further force and effect. The value of the stock or other
securities the optionee would have received if the option had been exercised
shall be determined in good faith by the Board of Directors, and in the case of
shares of the Common Stock of the Company, in accordance with the provisions of
Section 7 hereof. The Board of Directors
12.
<PAGE> 13
shall also have the power and right to accelerate the exercisability of any
options, notwithstanding any limitations in this Plan or in the Agreement upon
such a sale, conveyance or Change in Control. Upon such acceleration, any
option or portion thereof originally designated as incentive stock options that
no longer qualify as incentive stock options under Section 422 of the Code as a
result of such acceleration shall be redesignated as non-qualified stock
options. A "Change in Control" shall be deemed to have occurred if any person,
or any two or more persons acting as a group, and all affiliates of such person
or persons, who prior to such time owned less than fifty percent (50%) of the
then outstanding Common Stock of the Company, shall acquire, whether by
purchase, exchange, tender offer, merger, consolidation or otherwise, such
additional shares of the Company's Common Stock in one or more transactions, or
series of transactions, such that following such transaction or transactions,
such person or group and affiliates beneficially own fifty percent (50%) or
more of the Company's Common Stock outstanding.
(c) Upon dissolution or liquidation of the Company, all
options granted under this Plan shall terminate, but each optionee (if at such
time in the employ of or otherwise associated with the Company or any of its
subsidiaries) shall have the right, immediately prior to such dissolution or
liquidation, to exercise his or her option to the extent then exercisable.
(d) No fraction of a share shall be purchasable or
deliverable upon the exercise of any option, but in the event any adjustment
hereunder of the number of
13.
<PAGE> 14
shares covered by the option shall cause such number to include a fraction of a
share, such fraction shall be adjusted to the nearest smaller whole number of
shares.
13. NO SPECIAL EMPLOYMENT RIGHTS. Nothing contained in
the Plan or in any option granted under the Plan shall confer upon any option
holder any right with respect to the continuation of his or her employment by
the Company (or any subsidiary) or interfere in any way with the right of the
Company (or any subsidiary), subject to the terms of any separate employment
agreement to the contrary, at any time to terminate such employment or to
increase or decrease the compensation of the option holder from the rate in
existence at the time of the grant of an option. Whether an authorized leave
of absence, or absence in military or government service, shall constitute
termination of employment shall be determined by the Board of Directors at the
time.
14. WITHHOLDING. The Company's obligation to deliver
shares upon the exercise of any option granted under the Plan shall be subject
to the option holder's satisfaction of all applicable Federal, state and local
income, excise, employment and any other tax withholding requirements.
15. RESTRICTIONS ON ISSUE OF SHARES.
(a) Notwithstanding the provisions of Section 8, the
Company may delay the issuance of shares covered by the exercise of an option
and the delivery of a certificate for such shares until one of the following
conditions shall be satisfied:
(i) The shares with respect to which such option
has been exercised are at the time of the issue of such shares effectively
registered or qualified
14.
<PAGE> 15
under applicable Federal and state securities acts now in force or as hereafter
amended; or
(ii) Counsel for the Company shall have given an
opinion, which opinion shall not be unreasonably conditioned or withheld, that
such shares are exempt from registration and qualification under applicable
Federal and state securities acts now in force or as hereafter amended.
(b) It is intended that all exercises of options shall be
effective, and the Company shall use its best efforts to bring about compliance
with the above conditions within a reasonable time, except that the Company
shall be under no obligation to qualify shares or to cause a registration
statement or a post-effective amendment to any registration statement to be
prepared for the purpose of covering the issue of shares in respect of which
any option may be exercised, except as otherwise agreed to by the Company in
writing.
16. PURCHASE FOR INVESTMENT; RIGHTS OF HOLDER ON
SUBSEQUENT REGISTRATION. Unless the shares to be issued upon exercise of an
option granted under the Plan have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended, the Company shall
be under no obligation to issue any shares covered by any option unless the
person who exercises such option, in whole or in part, shall give a written
representation and undertaking to the Company which is satisfactory in form and
scope to counsel for the Company and upon which, in the opinion of such
counsel, the Company may reasonably rely, that he or she is acquiring the
shares issued pursuant to such exercise of the option for his or her own
account as
15.
<PAGE> 16
an investment and not with a view to, or for sale in connection with, the
distribution of any such shares, and that he or she will make no transfer of
the same except in compliance with any rules and regulations in force at the
time of such transfer under the Securities Act of 1933, or any other applicable
law, and that if shares are issued without such registration, a legend to this
effect may be endorsed upon the securities so issued. In the event that the
Company shall, nevertheless, deem it necessary or desirable to register under
the Securities Act of 1933 or other applicable statutes any shares with respect
to which an option shall have been exercised, or to qualify any such shares for
exemption from the Securities Act of 1933 or other applicable statutes, then
the Company may take such action and may require from each optionee such
information in writing for use in any registration statement, supplementary
registration statement, prospectus, preliminary prospectus or offering circular
as is reasonably necessary for such purpose and may require reasonable
indemnity to the Company and its officers and directors and controlling persons
from such holder against all losses, claims, damages and liabilities arising
from such use of the information so furnished and caused by any untrue
statement of any material fact therein or caused by the omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made.
17. LOANS. The Company may not make loans to optionees
to permit them to exercise options.
18. MODIFICATION OF OUTSTANDING OPTIONS. The Board of
Directors may authorize the amendment of any outstanding option with the
consent of the optionee
16.
<PAGE> 17
when and subject to such conditions as are deemed to be in the best interests
of the Company and in accordance with the purposes of this Plan.
19. APPROVAL OF STOCKHOLDERS. The Plan shall be subject
to approval by the vote of stockholders holding at least a majority of the
voting stock of the Company present, or represented, and entitled to vote at a
duly held stockholders' meeting, or by written consent of the stockholders as
provided for under applicable state law, within twelve (12) months after the
adoption of the Plan by the Board of Directors and shall take effect as of the
date of adoption by the Board of Directors upon such approval. The Board of
Directors may grant options under the Plan prior to such approval, but any such
option shall become effective as of the date of grant only upon such approval
and, accordingly, no such option may be exercisable prior to such approval.
20. TERMINATION AND AMENDMENT. Unless sooner terminated
as herein provided, the Plan shall terminate ten (10) years from the date upon
which the Plan was duly adopted by the Board of Directors. The Board of
Directors may at any time terminate the Plan or make such modification or
amendment thereof as it deems advisable; provided, however, that except as
provided in this Section 20, the Board of Directors may not, without the
approval of the stockholders of the Company obtained in the manner stated in
Section 19, increase the maximum number of shares for which options may be
granted or change the designation of the class of persons eligible to receive
options under the Plan, or make any other change in the Plan which requires
stockholder approval under applicable law or regulations, including any
approval requirement which is a prerequisite for exemptive relief under Section
16 of the
17.
<PAGE> 18
Securities Exchange Act of 1934. The Board of Directors may grant options to
persons subject to Section 16(b) of the Securities and Exchange Act of 1934
after an amendment to the Plan by the Board of Directors requiring stockholder
approval under Section 20, but any such option shall become effective as of the
date of grant only upon such approval and, accordingly, no such option may be
exercisable prior to such approval. The Board of Directors may terminate,
amend or modify any outstanding option without the consent of the option
holder, provided, however, that, except as provided in Section 12, without the
consent of the optionee, the Board of Directors shall not change the number of
shares subject to an option, nor the exercise price thereof, nor extend the
term of such option.
21. RESERVATION OF STOCK. The Company shall at all times
during the term of the Plan reserve and keep available such number of shares of
stock as will be sufficient to satisfy the requirements of the Plan and shall
pay all fees and expenses necessarily incurred by the Company in connection
therewith.
22. LIMITATION OF RIGHTS IN THE OPTION SHARES. An
optionee shall not be deemed for any purpose to be a stockholder of the Company
with respect to any of the options except to the extent that the option shall
have been exercised with respect thereto and, in addition, a certificate shall
have been issued theretofore and delivered to the optionee.
23. NOTICES. Any communication or notice required or
permitted to be given under the Plan shall be in writing, and mailed by
registered or certified mail or delivered by hand, if to the Company, to its
principal place of business, attention:
18.
<PAGE> 19
President, and, if to an optionee, to the address as appearing on the records
of the Company.
19.
<PAGE> 1
EXHIBIT 99.11
OPTIMAX SYSTEMS CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT entered into as of the twelfth day of December, 1996
by and between OPTIMAX SYSTEMS CORPORATION, a Delaware corporation (the
"Company") and the undersigned employee of the Company (the "Employee").
The Company desires to afford the Employee an opportunity to
purchase shares of its common stock ($.001 par value) ("Shares") to carry out
the purposes of the Optimax Systems Corporation Stock Option Plan (the "Plan").
Section 6 of the Plan provides that each option is to be evidenced by an option
agreement, setting forth the terms and conditions of the option.
ACCORDINGLY, in consideration of the premises and of the
mutual covenants and agreements contained herein, the Company and the Employee
hereby agree as follows:
1. Grant of Option. The Company hereby irrevocably
grants to the Employee a non-qualified stock option (the "Option") to purchase
all or any part of an aggregate of 31,125 Shares on the terms and conditions
hereinafter set forth.
2. Purchase Price. The purchase price ("Purchase
Price") for the Shares covered by the Option shall be $0.57 per Share.
3. Time and Manner of Exercise of Option.
(a) The Option shall not be exercisable until
June 30, 1997, but shall become exercisable as to 648 Shares, rounded up to the
nearest whole share, on such date and cumulatively exercisable as to an
additional 648 Shares, rounded up to the nearest whole share, per month upon
the expiration of each of the next forty-seven (47) months thereafter.
(b) To the extent that the right to exercise the
Option has accrued and is in effect, the Option may be exercised in full at one
time or in part from time to time, by giving written notice, signed by the
person or persons exercising the Option, to the Company, stating the number of
Shares with respect to which the Option is being exercised, accompanied by
payment in full of the Price for such Shares in cash. There shall be no
exercise at any one time as to fewer than One Hundred (100) Shares or all of
the remaining Shares then purchasable by the person or persons exercising the
Option, if fewer than One Hundred (100) Shares. Upon such exercise, delivery
of a certificate for paid-up, non-assessable Shares shall be made at the
principal office of the
<PAGE> 2
Company to the person or persons exercising the Option at such time, during
ordinary business hours, after fifteen (15) days but not more than thirty (30)
days from the date of receipt of the notice by the Company, as shall be
designated in such notice, or at such time, place and manner as may be agreed
upon by the Company and the person or persons exercising the Option.
(c) The Company shall at all times during the
term of the Option reserve and keep available such number of shares of its
common stock as will be sufficient to satisfy the requirements of the Option,
shall pay all original issue and transfer taxes with respect to the issue and
transfer of Shares pursuant hereto, and all other fees and expenses necessarily
incurred by the Company in connection therewith. The holder of this Option
shall not have any of the rights of a stockholder of the Company in respect of
the Shares until one or more certificates for such Shares shall be delivered to
him or her upon the due exercise of the Option.
4. Term of Option.
(a) The Option shall terminate ten (10) years
from the date hereof, but shall be subject to earlier termination as
hereinafter provided.
(b) The Option shall terminate upon the
expiration of sixty (60) days after the date on which the Employee ceases to be
a regular salaried employee of the Company ("Termination Date"), unless
termination of employment was because (i) the Employee has died or become
disabled (within the meaning of Section 105(d)(4) of the Internal Revenue Code
of 1954, as amended), in either of which cases the following provisions, as
applicable, shall apply or (ii) of dismissal for cause or because the Employee
breached his or her employment agreement with the Company, in which case the
Option shall immediately terminate on the Termination Date.
(c) In the case of disability, the Option may be
exercised, to the extent exercisable on the Termination Date, at any time
within twelve (12) months after such date, but in any event prior to the
expiration of ten (10) years from the date hereof.
(d) In the event of the death of the Employee,
the Option may be exercised to the extent the Employee was entitled to do so on
the date of his or her death under the provisions of paragraph 3(a), above, by
the estate of the Employee or by any person or persons who acquire the right to
exercise the Option by bequest or inheritance or otherwise by reason of the
death of the Employee. In such circumstances, the Option may be exercised at
any time within twelve (12) months after the date of death of the Employee, but
in any event prior to the expiration of ten (10) years from the date hereof.
5. Non-Transferability. The right of the Employee to
exercise the Option shall not be assignable or transferable by the Employee
otherwise than by will or
2.
<PAGE> 3
the laws of descent and distribution, and the Option may be exercised during
the lifetime of the Employee only by him or her. The Option shall be null and
void and without effect upon the bankruptcy of the Employee or upon any
attempted assignment or transfer, except as hereinabove provided, including
without limitation, any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition contrary to the provisions
hereof, or levy of execution, attachment, trustee process or similar process,
whether legal or equitable, upon the Option.
6. Restrictions on Issue of Shares.
(a) Notwithstanding the provisions of paragraph 3
hereof, the Company may delay the issuance of Shares covered by the exercise of
the Option and the delivery of a certificate for such Shares until one of the
following conditions shall be satisfied:
(i) The Shares with respect to which
such option has been exercised are
at the time of the issue of such
shares effectively registered under
applicable federal and state
securities acts now in force or
hereafter amended; or
(ii) Counsel for the Company shall have
given an option, which opinion shall
not be unreasonably conditioned or
withheld, that such Shares are
exempt from registration under
applicable federal and state
securities acts, as now in force or
hereafter amended.
(b) In the event that for any reason the Shares
to be issued upon exercise of the Option shall not be effectively registered
under the Securities Act of 1933 (the "1933 Act"), upon any date on which the
Option is exercised in whole or in part, the Company shall be under no further
obligation to issue Shares covered by the Option, unless the person exercising
the Option shall give a written representation to the Company, substantially in
the form attached hereto as Exhibit 1, that such person is acquiring the Shares
issued to him or her pursuant to such exercise of the Option for investment and
not with a view to, or for sale in connection with, the distribution of any
such Shares, and that he or she will make no transfer of the same except in
compliance with the 1933 Act and the rules and regulations promulgated
thereunder and then in force, and in such event, the Company may place an
"investment legend," so-called, upon any certificate for the Shares issued by
reason of such exercise.
7. Restrictions on Transfer of Shares. In addition to
complying with the requirements of Section 6, the Company may delay the
issuance of Shares covered by the exercise of Option and the delivery of a
Certificate for such Shares until the person exercising the Option enters into
an agreement with the Company, substantially in the
3.
<PAGE> 4
form of the Stock Restriction Agreement attached hereto as Exhibit 2, granting
the Company a right of first refusal with respect to any Shares proposed to be
transferred by the holder thereof.
8. Adjustments Upon Changes in Capitalization. In the
event that the outstanding shares of the common stock of the Company are
changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, combination of shares or dividend payable in capital stock,
appropriate adjustment shall be made in the number and kind of shares as to
which the Option, or any part thereof then unexercised, shall be exercisable
and with a corresponding adjustment in the Option price per share.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed and its corporate seal to be hereto affixed by its President
thereunto duly authorized, and the Employee has here unto set his or her hand
and seal, all as of the day and year first above written.
OPTIMAX SYSTEMS CORPORATION
By:
-------------------------------
Jeffrey C. Herrmann, President
4.
<PAGE> 5
EXHIBIT 1
[DATE]
Optimax Systems Corporation
Dear Madam/Sir:
In connection with the exercise by me as to ______ shares of
the stock option granted to me under date of ____________________, 1996, I
hereby acknowledge that I have been informed as follows:
1. The shares of common stock of the Company to be
issued to me pursuant to the exercise of said option have not been registered
under the Securities Act of 1933, as amended (the "Act"), and accordingly, must
be held indefinitely unless such shares are subsequently registered under the
Act, or an exemption from such registration is available.
2. Routine sales of securities made in reliance upon
Rule 144 under the Act can be made only after the holding period and in limited
amounts in accordance with the terms and conditions provided by that Rule, and
in any sale to which that Rule is not applicable, registration or compliance
with some other exemption under the Act will be required.
3. The Company is under no obligation to me to register
the shares or to comply with any such exemptions under the Act.
4. The availability of Rule 144 is dependent upon
adequate current public information with respect to the Company being available
and, at the time that I may desire to make a sale pursuant to the Rule, the
Company may neither wish nor be able to comply with such requirement.
In consideration of the issuance of certificates for the
shares to me, I hereby represent and warrant that I am acquiring such shares
for my own account for investment, and that I will not sell, pledge or transfer
such shares in the absence of an effective registration statement covering the
same, except as permitted by the provisions of Rule 144, if applicable, or some
other applicable exemption under the Act. In view of this representation and
warranty, I agree that there may be affixed to the certificates for the shares
to be issued to me, and to all certificates issued hereafter representing such
shares (until in the opinion of counsel, which opinion must be reasonably
satisfactory in form and substance to counsel for the Company, it is no longer
necessary or required) a legend as follows:
<PAGE> 6
"The shares of common stock represented by this certificate
have not been registered under the Federal Securities Act of
1933, as amended, and were acquired by the registered holder,
pursuant to a representation and warranty that such holder was
acquiring such shares for his or her own account and for
investment, with no intention to transfer or dispose of the
same, in violation of the registration requirements of that
Act. These shares may not be sold, pledged, or transferred,
in the absence of an effective registration statement under
the Securities Act of 1933, as amended, or an opinion of
counsel, which opinion is reasonably satisfactory to counsel
to the Company, to the effect that registration is not
required under said Act."
I further agree that the Company may place a stop order with
its Transfer Agent, prohibiting the transfer of such shares so long as the
legend remains on the certificates representing the shares.
Very truly yours,
---------------------------
2.
<PAGE> 7
EXHIBIT 2
OPTIMAX SYSTEMS CORPORATION
STOCK RESTRICTION AGREEMENT
AGREEMENT entered into effective as of the _____ day of
____________________, ____ by and between OPTIMAX SYSTEMS CORPORATION, a
Delaware corporation with a principal place of business in Cambridge,
Massachusetts (the "Company"), and the undersigned individual (the
"Stockholder"), who is concurrently with the execution of this Stock
Restriction Agreement exercising an option (the "Option") to acquire shares of
stock in the Company. The execution by the Stockholder of this Stock
Restriction Agreement is a condition to his or her being entitled to be issued
shares of stock in the Company ("Shares") upon the exercise of the Option.
ACCORDINGLY, in consideration of the premises and of the
mutual covenants and agreements herein contained, and in consideration of the
issuance of the Shares by the Company upon the exercise of the Option, the
Stockholder, intending to be legally bound, hereby agrees with the Company, as
follows:
1. RESTRICTION ON TRANSFER OF SHARES. the Stockholder
shall not sell, give, bequeath, pledge, assign or encumber ("Transfer") any
Shares (which term shall mean all shares of Common Stock owned by the
Stockholder, whether now owned or hereafter acquired) except in a Permitted
Transfer or as hereinafter provided. A "Permitted Transfer" is (i) a gift or
bequest to or for the benefit of a member or members of the immediate family of
the Stockholder, provided that the donee agrees in writing to be subject to all
of the provisions of this Stock Restriction Agreement; or (ii) a Transfer made
with the prior approval of the Board of Directors of the Company (the "Board").
2. ENDORSEMENT OF STOCK CERTIFICATES. All certificates
representing Shares shall have conspicuously endorsed thereon the following
legend:
"TRANSFER RESTRICTED
The shares of stock represented by this certificate
are subject to restrictions upon transfer under a
Stock Restriction Agreement dated as of
____________________, a copy of which may be obtained
from the Company without charge upon the written
request of the holder."
<PAGE> 8
3. RIGHT OF FIRST REFUSAL. If the Stockholder desires
to Transfer any or all of his or her Shares, he or she shall first give written
notice (the "Offer Notice") thereof to the Company, identifying (i) the number
of Shares sought to be Transferred (the "Offered Shares"), (ii) the proposed
aggregate Transfer price and terms (the "Offering Price" and "Offering Terms"),
and (iii) the proposed transferee (the "Proposed Transferee"), and shall offer
the Offered Shares to the Company for Purchase at the Offering Price and on the
Offering Terms. The Company shall have an option, exercisable at any time
within forty-five (45) days after the Notice Date, to Purchase any or all of
the Offered Shares. If the Company does not Purchase all of the Offered Shares
within said forty-five (45) day period, the Stockholder shall be free to
dispose of the remaining Offered Shares within ninety (90) days after the
Notice Date but only to the Proposed Transferee and only at a price and on
terms not more favorable to the Proposed Transferee than the Offering Price and
the Offering Terms; provided, however, that as a condition to the effectiveness
of such Transfer, the Company may require that the Proposed Transferee shall
thereupon become a party to this Stock Restriction Agreement, subject to the
same restrictions on Transfer as the Stockholder. If the remaining Offered
Shares are not so transferred by the Stockholder within said ninety (90) day
period, the Stockholder shall continue to hold such Offered Shares subject to
all of the terms and conditions of this Stock Restriction Agreement.
4. TRANSFERS BY OPERATION OF LAW. In the event that the
Stockholder (a) files a voluntary petition under any bankruptcy or insolvency
law or a petition for the appointment of a receiver or makes an assignment for
the benefit of creditors, or (b) is subjected involuntarily to such a petition
or assignment or to an attachment or other legal or equitable interest with
respect to his or her Shares and such involuntary petition or assignment or
attachment is not discharged within ninety (90) days after its date, or (c) is
subjected to any other possible Transfer of his, her or its Shares by operation
of law, including Transfer pursuant to a divorce decree, the Company shall have
the option for a period of thirty (30) days after the Company acquires
knowledge of said proceedings to Purchase any or all of such Shares and any or
all interests therein from said Stockholder and/or any receiver, petitioner,
assignee, transferee or other person obtaining an interest in said Shares
(hereinafter referred to as a "Transferee by Law") at a price equal to the then
fair market value of the Shares, as determined in good faith by the Board. If
said Transferee by Law subsequently acquires ownership of any Shares, as a
condition to the effectiveness of such Transfer of ownership, said Transferee
by Law shall thereupon become a party to this Stock Restriction Agreement,
subject to the same restrictions on Transfer as the Stockholder.
5. COMPANY DESIGNEE. All rights granted to the Company
by the terms of this Stock Restriction Agreement may be exercised by such
person or persons as the Board, in its sole discretion, shall designate (each,
a "Designee").
6. DELIVERY OF SHARES AND DOCUMENTS. Upon the Purchase
of Shares as herein provided, the seller shall deliver to the purchaser upon
tender of
2.
<PAGE> 9
payment of the purchase price: (a) the certificate(s) for the Shares being
sold, endorsed for transfer and bearing any necessary documentary stamps and
(b) such assignments, certificates of authority, tax releases, consents to
transfer, instruments and evidence of title of the seller, and of his or her
compliance with applicable state and Federal law, as may be reasonably required
by counsel for each purchaser.
7. CONTRACT CONSTRUCTION. This Stock Restriction
Agreement represents the entire and integrated agreement between the Company
and the Stockholder with respect to the specific subject matters hereof and
thereof and supersedes all prior negotiations or agreements, either written or
oral. The invalidity or unenforceability of any one or more provisions of this
Stock Restriction Agreement shall not affect the other provisions, and the
Stock Restriction Agreement shall be construed in all respects as if any such
invalid or unenforceable provisions were omitted.
8. NOTICES. Notices under this Stock Restriction
Agreement shall be in writing and shall be delivered in hand or mailed by
certified mail, postage prepaid, return receipt requested, to the party to whom
such notice is being given, at the address set forth below or at such other
address as to which such party shall have notified the other parties in
accordance with this Section 8:
To the Company: OPTIMAX SYSTEMS CORPORATION
201 Broadway
Cambridge, MA 02139
Attn: Board of Directors
To the Shareholder: At the address set forth below
his or her signature
Notices are effective upon receipt.
9. BINDING EFFECT. This Stock Restriction Agreement
shall be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
10. PARTIES. Any person who acquires ownership of any
Shares shall become a party to this Stock Restriction Agreement, subject to the
same restrictions on Transfer as the Stockholder, and shall confirm such fact
by endorsing a schedule which shall be attached hereto or by executing a
counterpart of this Stock Restriction Agreement. The Company may refuse to
recognize any transferee as one of the Company's stockholders for any purpose,
including without limitation, for purposes of dividend and voting rights, until
all applicable provisions of this Stock Restriction Agreement have been
complied with in full. An original copy of this Stock Restriction Agreement
and of any counterpart subsequently executed shall be kept by the Clerk of the
Company.
3.
<PAGE> 10
11. GOVERNING LAW. This Stock Restriction Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
12. AMENDMENT AND TERMINATION. This Stock Restriction
Agreement may be amended or terminated by written agreement of all of the
parties hereto and shall be terminated automatically upon the earlier to occur
of (i) such time as the Company's Common Stock is registered under the
Securities Exchange Act of 1934; and (ii) the Company's liquidation and
dissolution.
IN WITNESS WHEREOF, the parties have executed this Stock
Restriction Agreement as an agreement under seal effective as of the date first
above written.
OPTIMAX SYSTEMS CORPORATION
By:
--------------------------------
Jeffrey C. Herrmann, President
------------------------------------
Individual Stockholder
-----------------------------------
Name
----------------------------------
Address
----------------------------------
4.
<PAGE> 1
EXHIBIT 99.12
I2 TECHNOLOGIES, INC.
STOCK OPTION ASSUMPTION AGREEMENT
OPTIMAX SYSTEMS CORPORATION STOCK OPTION PLAN
OPTIONEE: 1~
STOCK OPTION ASSUMPTION AGREEMENT issued as of the 15th day of May,
1997 by i2 Technologies, Inc., a Delaware corporation ("i2 Technologies").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding non-statutory stock options to purchase shares of the common stock
of Optimax Systems Corporation, a Delaware corporation ("Optimax"), which were
granted to Optionee under the Optimax Systems Corporation Stock Option Plan (the
"Plan") and are evidenced by a Stock Option Agreement (the "Option Agreement")
between Optimax and Optionee.
WHEREAS, Optimax has this day been acquired by i2 Technologies
through merger of OSC Acquisition Corporation, a wholly-owned i2 Technologies
subsidiary, with and into Optimax (the "Merger") pursuant to the Agreement and
Plan of Merger dated May 15, 1997, by and among i2 Technologies, Optimax and OSC
Acquisition Corporation (the "Merger Agreement").
WHEREAS, the provisions of the Merger Agreement require i2
Technologies to assume all obligations of Optimax under all options outstanding
under the Plan at the consummation of the Merger and to issue to the holder of
each outstanding option an agreement evidencing the assumption of such option.
WHEREAS, pursuant to the provisions of the Merger Agreement, the
exchange ratio in effect for the Merger is 0.202833 of a share of i2
Technologies common stock ("i2 Technologies Stock") for each outstanding share
of Optimax Stock (the "Exchange Ratio").
WHEREAS, this Agreement is to become effective immediately upon the
consummation of the Merger (the "Effective Time") in order to reflect certain
adjustments to Optionee's outstanding options under the Plan which have become
necessary by reason of the assumption of those options by i2 Technologies in
connection with the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of Optimax common stock ("Optimax Stock")
subject to the stock options held by Optionee under the Plan immediately prior
to the Effective Time (the "Optimax Options") and the exercise price payable per
share are set forth in Exhibit A hereto. i2 Technologies hereby assumes, as of
the Effective Time, all the
<PAGE> 2
duties and obligations of Optimax under each of the Optimax Options. In
connection with such assumption, the number of shares of i2 Technologies Stock
purchasable under each i2 Technologies Option hereby assumed and the exercise
price payable thereunder have been adjusted to reflect the Exchange Ratio.
Accordingly, the number of shares of i2 Technologies Stock subject to each
Optimax Option hereby assumed shall be as specified for that option in attached
Exhibit B, and the adjusted exercise price payable per share of i2 Technologies
Stock under the assumed Optimax Option shall be as indicated for that option in
attached Exhibit B.
2. The intent of the foregoing adjustments to each assumed Optimax
Option is to assure that the spread between the aggregate fair market value of
the shares of i2 Technologies Stock purchasable under each such option and the
aggregate exercise price as adjusted pursuant to this agreement will,
immediately after the consummation of the Merger, equal the spread which
existed, immediately prior to the Merger, between the then aggregate fair market
value of the Optimax Stock subject to the Optimax Option and the aggregate
exercise price in effect at such time under the Option Agreement. Such
adjustments are also designed to preserve, immediately after the Merger, on a
per share basis, the same ratio of exercise price per option share to fair
market value per share which existed under the Optimax Option immediately prior
to the Merger.
3. The following provisions shall govern each Optimax Option hereby
assumed by i2 Technologies:
(a) Unless the context otherwise requires, all
references to the "Company" in each Option Agreement and in the Plan
(as incorporated into such Option Agreement) shall mean i2
Technologies, all references to "Common Stock" shall mean shares of
i2 Technologies Stock, all references to the "Board of Directors"
shall mean the Board of Directors of i2 Technologies, and all
references to the "Committee" shall mean the Compensation Committee
of the i2 Technologies Board of Directors.
(b) The grant date and the expiration date of each
assumed Optimax Option and all other provisions which govern either
the exercisability or the termination of the assumed Optimax Option
shall remain the same as set forth in the Option Agreement
applicable to that option and shall accordingly govern and control
Optionee's rights under this Agreement to purchase i2 Technologies
Stock.
(c) Each assumed Optimax Option shall remain
exercisable in accordance with the same installment exercise
schedule in effect under the applicable Option Agreement immediately
prior to the Effective Time, with the number of shares of i2
Technologies Stock subject to each such installment adjusted to
reflect the Exchange Ratio. Accordingly, no accelerated vesting of
the Optimax Options shall be deemed to automatically
2.
<PAGE> 3
occur by reason of the Merger, and the grant date for each assumed
Optimax Option shall accordingly remain the same as in effect under
the applicable Option Agreement immediately prior to the Merger.
(d) For purposes of applying any and all
provisions of the Option Agreement relating to Optionee's status as
an employee with the Company, Optionee shall be deemed to continue
in such employee status for so long as Optionee renders services as
an employee to i2 Technologies or any present or future i2
Technologies subsidiary, including (without limitation) Optimax.
Accordingly, the provisions of the Option Agreement governing the
termination of the assumed Optimax Option upon Optionee's cessation
of employee status with Optimax shall hereafter be applied on the
basis of Optionee's cessation of employee status with i2
Technologies and its subsidiaries, and each assumed Optimax Option
shall accordingly terminate, within the designated time period in
effect under the Option Agreement for that option, following such
cessation of employment with i2 Technologies and its subsidiaries.
(e) The adjusted exercise price payable for the i2
Technologies Stock subject to each assumed Optimax Option shall be
payable in any of the forms authorized under the Option Agreement
applicable to that option. For purposes of determining the holding
period of any shares of i2 Technologies Stock delivered in payment
of such adjusted exercise price, the period for which such shares
were held as Optimax Stock prior to the Merger shall be taken into
account.
(f) In order to exercise each assumed Optimax
Option, Optionee must deliver to i2 Technologies a written notice of
exercise in which the number of shares of i2 Technologies Stock to
be purchased thereunder must be indicated. The exercise notice must
be accompanied by payment of the adjusted exercise price payable for
the purchased shares of i2 Technologies Stock and should be
delivered to i2 Technologies at the following address:
i2 Technologies, Inc.
909 E. Las Colinas Boulevard, 16th Floor
Irving, Texas 75039
Attention: ________________
4. Except to the extent specifically modified by this Option
Assumption Agreement, all of the terms and conditions of each Option Agreement
as in effect immediately prior to the Merger shall continue in full force and
effect and shall not in any way be amended, revised or otherwise affected by
this Stock Option Assumption Agreement.
3.
<PAGE> 4
IN WITNESS WHEREOF, i2 Technologies, Inc. has caused this Stock
Option Assumption Agreement to be executed on its behalf by its duly-authorized
officer as of the ___ day of _____, 1997.
I2 TECHNOLOGIES, INC.
_____________________________________
By:
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to each of his or her Optimax Options hereby assumed by i2 Technologies,
Inc. are as set forth in the Option Agreement, the Plan and such Stock Option
Assumption Agreement.
_____________________________________
1~, OPTIONEE
DATED: __________________, 199_
4.
<PAGE> 5
EXHIBIT A
Optionee's Outstanding Options to Purchase Shares of Optimax Systems Corporation
Common Stock (Pre-Merger)
<PAGE> 6
EXHIBIT B
Optionee's Outstanding Options to Purchase Shares of i2 Technologies, Inc.
Common Stock (Post-Merger)
