<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERACT COMMERCE CORPORATION
(FORMERLY KNOWN AS SALESLOGIX CORPORATION)
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 86-0808340
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
8800 N. GAINEY DRIVE, SUITE 200
SCOTTSDALE, ARIZONA 85258
(Address of Principal Executive Offices, including zip code)
SALESLOGIX CORPORATION 1996 EQUITY INCENTIVE PLAN
(Full title of the plans)
PATRICK M. SULLIVAN
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
INTERACT COMMERCE CORPORATION
8800 N. GAINEY DRIVE, SUITE 200
SCOTTSDALE, ARIZONA 85258
TELEPHONE: (602) 368-3700
FACSIMILE: (602) 368-3799
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
THOMAS H. CURZON
OSBORN MALEDON, P.A.
2929 NORTH CENTRAL AVENUE
PHOENIX, ARIZONA 85012-2794
TELEPHONE: (602) 640-9000
FACSIMILE: (602) 640-9050
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
PROPOSED PROPOSED
TITLE OF NUMBER MAXIMUM MAXIMUM
SECURITIES TO TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value, not subject to
outstanding options or not having fixed exercise
prices under the SalesLogix Corporation 1996
Equity Incentive Plan 2,629,802 $ 14.31 $ 37,632,466 $ 9,935.00
============================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers an indeterminate
number of additional shares that may be issuable in connection with share
splits, share dividends or similar transactions.
(2) Estimated as of April 27, 2000, solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) under the Securities Act, based
upon the average of the high and low prices of the registrant's Common
Stock for April 27, 2000, as listed on the Nasdaq Stock Market.
<PAGE> 2
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose
of registering an additional 2,629,802 shares of the Registrant's Common Stock
to be issued pursuant to the SalesLogix Corporation 1996 Equity Incentive Plan,
as amended.
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8 NO. 333-75353
The contents of Registration Statement on Form S-8 No. 333-75353 filed
with the Securities and Exchange Commission on June 22, 1999, including the
Company's Annual Report on Form 10-K for the year ended December 31, 1999, are
incorporated by reference herein.
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Scottsdale, State of Arizona, on the 2nd day of
May, 2000.
INTERACT COMMERCE CORPORATION
By: /s/ Patrick M. Sullivan
-------------------------------------
Patrick M. Sullivan
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 2nd day of May, 2000.
<TABLE>
<CAPTION>
SIGNATURE Title
--------- -----
<S> <C>
/s/ Patrick M. Sullivan President, Chief Executive Officer and Chairman of the
- --------------------------- Board (Principal Executive Officer)
Patrick M. Sullivan
/s/ Gary R. Acord Vice President, Chief Financial Officer, Secretary and
- --------------------------- Treasurer (Principal Financial and Accounting Officer)
Gary R. Acord
/s/ Deepak Kamra Director
- ---------------------------
Deepak Kamra
/s/ Anthony P. Morris Director
- ---------------------------
Anthony P. Morris
/s/ David C. Schwab Director
- ---------------------------
David C. Schwab
/s/ Steve Hansen Director
- ---------------------------
Steve Hansen
/s/ John B. Carrington Director
- ---------------------------
John B. Carrington
</TABLE>
II-2
<PAGE> 4
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Osborn Maledon, P.A.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Osborn Maledon, P.A. (included in opinion filed as
Exhibit 5.1)
99.1 Amendment No. 1 to Amended and Restated SalesLogix Corporation
1996 Equity Incentive Plan
II-3
<PAGE> 1
EXHIBIT 5.1
[OSBORN MALEDON, P.A. LETTERHEAD]
May 2, 2000
Interact Commerce Corporation
8800 N. Gainey Drive, Suite 200
Scottsdale, Arizona 85258
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to 2,629,802 shares of Common
Stock, par value $.001 per share (the "Shares"), which may be issued pursuant to
SalesLogix Corporation 1996 Equity Incentive Plan, as amended (the "1996 Equity
Incentive Plan").
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when sold and issued in accordance with the 1996 Equity Incentive Plan,
the Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ OSBORN MALEDON, P.A.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the Saleslogix Corporation 1996 Equity
Incentive Plan of our report dated January 25, 2000 with respect to the
consolidated financial statements of Saleslogix Corporation included in its
Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the
Securities and Exchange Commission.
We also consent to the incorporation by reference therein of our
report dated March 24, 2000 with respect to the financial statement schedule
of Saleslogix Corporation for the years ended December 31, 1999, 1998 and 1997
included in the Annual Report (Form 10-K) for 1999 filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Phoenix, Arizona
April 28, 2000
<PAGE> 1
EXHIBIT 99.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED SALESLOGIX CORPORATION
1996 EQUITY INCENTIVE PLAN
WHEREAS, the Board of Directors of SalesLogix Corporation (the
"Company") has approved this Amendment No. 1 to the Amended and Restated
SalesLogix Corporation 1996 Equity Incentive Plan, a copy of which is attached
hereto as Exhibit A (the "Plan"), subject to approval by the Company's
stockholders at a Special Meeting to be held on or about April 3, 2000.
NOW, THEREFORE, effective immediately upon approval by the Company's
stockholders, the Plan shall be amended as provided in this Amendment No. 1 as
follows:
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meanings set forth in the Plan.
2. PLAN AMENDMENTS.
(a) NUMBER OF SHARES ISSUABLE UNDER PLAN. References to
4,500,000 shares in Section 3.1 of the Plan shall be revised to reference
6,300,000 shares.
(b) MAXIMUM NUMBER OF SHARES ISSUABLE TO ANY PARTICIPANT. A
new Section 3.5 shall be added to the Plan which provides as follows:
3.5 INDIVIDUAL LIMITS. The maximum number of shares issuable
pursuant to Awards granted to any Participant during any
calendar year shall be 1,000,000 shares, as adjusted under
Section 13.1 of the Plan.
(c) COMMITTEE. Section 5.1 of the Plan shall be amended and
restated in its entirety as follows:
5.1 BOARD. The Plan shall be administered by the Board or a
Committee appointed by the Board to administer the Plan at any
time or from time to time. If the Company has a class of
equity securities registered under Section 12 of the Exchange
Act, the Plan shall be administered by the Board or a
Committee of the Board in accordance with Rule 16b-3, or
successor legislation, under the Exchange Act, and, where
necessary to comply with Section 162(m) of the Code, comprised
of "outside directors" as defined therein. Once appointed, the
Committee shall continue to serve until otherwise directed by
the Board. From time to time, the Board may increase the size
of the Committee and appoint additional members thereof,
remove members (with or without cause), appoint new members in
substitution therefor, and fill vacancies however caused.
(d) PERFORMANCE GOALS. A new Section 12.9 shall be added to
the Plan which provides as follows:
12.9 PERFORMANCE GOALS. For purposes of qualifying Performance
Unit Awards, Restricted Stock Awards and Stock Reference
Awards as "performance-based compensation" under Section
162(m) of the Code, the Committee, in its sole discretion, may
set restrictions based upon the achievement of performance
goals. The performance goals shall be based upon earnings per
share, reductions in costs and/or increases in sales of the
Company or specified business divisions and shall be set by
the Committee on or before the latest date permissible to
enable such Awards to qualify as "performance-based
compensation" under Section 162(m) of the Code. In granting
such Awards that are intended to qualify under Code Section
162(m), the Committee shall follow any procedures determined
by it in its sole discretion from time to time to be
necessary,
<PAGE> 2
advisable or appropriate to ensure qualification of such
Awards under Code Section 162(m).
3. REFERENCES TO THE PLAN. From and after the effectiveness of this
Amendment No. 1, all references in the Plan to "this Plan," "hereof," "herein"
and similar terms shall mean and refer to the Plan as amended by this Amendment
No. 1, and all references in other documents to the Plan shall mean the Plan as
amended by this Amendment No. 1. This Amendment No. 1 shall not be modified,
supplemented or terminated in any manner whatsoever except in accordance with
Section 14.1 of the Plan.
4. RATIFICATION AND CONFIRMATION. The Plan is hereby ratified and
confirmed and, except as herein amended, remains in full force and effect.
IN WITNESS WHEREOF, the Secretary of the Company hereby certifies the
approval of this Amendment No. 1 by the Stockholders of the Company as of April
3, 2000.
THE COMPANY:
SALESLOGIX CORPORATION
By: /s/ Gary R. Acord
------------------------------------------
Gary R. Acord, Secretary
<PAGE> 3
EXHIBIT A
SALESLOGIX CORPORATION
1996 EQUITY INCENTIVE PLAN
As amended and restated effective upon consummation
of the Company's initial public offering
ARTICLE 1: PURPOSE
1.1 General. The purpose of the SalesLogix Corporation 1996 EQUITY
INCENTIVE PLAN (the "Plan") is to promote the interests of SalesLogix
Corporation (the "Company"), by enabling the Company to motivate, attract, and
retain the services of persons upon whose judgment, efforts, and contributions
the success of the Company's business depends. The plan is further intended to
align the personal interests of such persons with the interests of stockholders
of the Company through equity participation in the Company's growth and success.
Capitalized terms not otherwise defined in the text are defined in Article 16.
ARTICLE 2: EFFECTIVE DATE; TERM
2.1 Effective Date. The effective date of the Plan is January 15,
1996 (the "Effective Date"), which is the date as of which the Plan was approved
by the Board of Directors and stockholders of the Company. This amendment and
restatement of the Plan was approved by the Board on March 19, 1999 and the
Company's stockholders as of April __, 1999 and shall be effective upon the
consummation of the Company's initial underwritten public offering of its Stock.
2.2 Term. This Plan shall continue in effect until terminated in
accordance with Article 14, except that Incentive Stock Option Awards shall not
be granted after the tenth (10th) anniversary of the Effective Date.
ARTICLE 3: SHARES SUBJECT TO THE PLAN
3.1 Number of Shares. The aggregate number of shares of Stock
reserved and available for Awards or which may be used to provide a basis of
measurement or valuation of an Award (such as an SAR or Performance Unit Award)
shall be Four Million Five Hundred Thousand (4,500,000) shares (the "Shares") of
Stock, plus an annual increase to be added on the first day of the Company's
fiscal year beginning in 2000 equal to the lesser of (i) 1,500,000 shares, (ii)
5% of the adjusted average shares of outstanding Stock used to calculate fully
diluted earnings per share as reported in the Annual Report to stockholders for
the preceding year, or (iii) a lesser amount determined by the Board; provided,
however, that any shares from any increases in previous years that are not
actually issued shall be added to the aggregate number of Shares available for
issuance under the Plan; and provided further that the maximum number of Shares
available for Incentive Stock Option Awards shall be Four Million Five Hundred
Thousand (4,500,000) shares.
3.2 Lapsed Awards. To the extent that an Award terminates, expires
or lapses for any reason, any shares of Stock subject to the Award will again be
available for the grant of an Award under the Plan (other than shares of Stock
subject to an Incentive Stock Option Award), and shares subject to SARs or other
Awards settled in cash will be available for the grant of an Award under the
Plan, in each case to the full extent available pursuant to the applicable rules
and interpretations of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
3.3 Payments in Stock. Any shares of Stock tendered to or withheld
by the Company in connection with payment for Stock purchased pursuant to the
Plan or withholding taxes thereon shall be added back to the aggregate number of
shares reserved and available for Awards under the Plan (other than shares of
Stock subject to an Incentive Stock Option Award), in each case to the fullest
extent permitted under the applicable rules and interpretations of the Exchange
Act.
<PAGE> 4
3.4 Stock Distributed. Any Stock distributed pursuant to an Award
may consist, in whole or in part, of authorized and unissued Stock, treasury
Stock, or Stock purchased on the open market.
ARTICLE 4: ELIGIBILITY
4.1 General. Awards may be granted only to an individual who is an
employee (including an employee who also is a director or officer), officer,
director, consultant, independent contractor, or adviser of the Company or a
Subsidiary, as determined by the Board.
ARTICLE 5: ADMINISTRATION
5.1 Board. The Plan shall be administered by the Board or a
Committee appointed by the Board to administer the Plan at any time or from time
to time. If the Company has a class of equity securities registered under
Section 12 of the Exchange Act, the Plan shall be administered by the Board or a
Committee of the Board in accordance with Rule 16b-3, or successor legislation,
under the Exchange Act. Once appointed, the Committee shall continue to serve
until otherwise directed by the Board. From time to time, the Board may increase
the size of the Committee and appoint additional members thereof, remove members
(with or without cause), appoint new members in substitution therefor, and fill
vacancies however caused.
5.2 Authority of Board. The Board has the exclusive power,
authority, and discretion to:
(a) Designate Participants;
(b) Determine the type or types of Awards to be granted
to each Participant;
(c) Determine the number of Awards to be granted and the
number of shares of Stock subject to an Award;
(d) Prescribe the form of each Award Agreement, which
need not be identical for each Participant;
(e) Determine the terms and conditions of any Award
granted under the Plan, including but not limited to, the exercise price, grant
price, or purchase price, any restrictions or limitations on the Award, any
schedule for lapse of forfeiture restrictions or restrictions on the
exercisability of an Award and accelerations or waivers thereof, and any
modification or amendment of any Award previously granted, based in each case on
such considerations as the Board in its sole discretion determines;
(f) Determine whether, to what extent, and under what
circumstances an Award may be settled in, or the exercise price of an Award may
be paid in, cash, Stock, other Awards, or other property, or an Award may be
canceled, forfeited, or surrendered;
(g) Determine whether, to what extent, and under what
circumstances cash, Stock, other Awards, other property, and other amounts
payable with respect to an Award shall be deferred either automatically or at
the election of the holder thereof or of the Board;
(h) Decide all other matters that must be determined in
connection with an Award;
(i) Establish, adopt, or revise any rules and regulations
as it may deem necessary or advisable to administer the Plan;
(j) Interpret the Plan, any Award, and any Award
Agreement in its discretion; and
(k) Make all other decisions and determinations that may
be required under the Plan or as the Board deems necessary or advisable to
administer the Plan.
<PAGE> 5
5.3 Decisions Binding. All decisions, interpretations, and
determinations by the Board with respect to the Plan, any Award, and any Award
Agreement are final, binding, and conclusive on all parties.
ARTICLE 6: STOCK OPTIONS
6.1 General. The Board is authorized to grant Options to
Participants on the following terms and conditions:
(a) Exercise Price. The exercise price per share of Stock
under an Option shall be determined by the Board.
(b) Payment. Payment for Stock issued upon exercise of an
Option shall be made in accordance with Article 11 of the Plan.
(c) Time and Conditions of Exercise. The Board shall
determine the time or times at which an Option may be exercised in whole or in
part, provided that no Option may be exercisable prior to six months following
the date of the grant of such Option if and to the extent such limitation is
necessary or required under Rule 16b-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended.
(d) Evidence of Option. All Options shall be evidenced by
a written Award Agreement between the Company and the Participant. The Award
Agreement shall include such provisions as may be specified by the Board.
6.2 Incentive Stock Options. The terms of any Incentive Stock
Options granted under the Plan must comply with the following additional rules:
(a) Employees Only. Incentive Stock Options may only be
granted to employees (including officers and directors who are also employees)
of the Company or a Subsidiary.
(b) Exercise Price. The exercise price per share of Stock
shall be set by the Board, provided that the exercise price for any Incentive
Stock Option may not be less than the Fair Market Value as of the date of the
grant.
(c) Exercise. In no event may any Incentive Stock Option
be exercisable for more than ten years from the date of its grant.
(d) Individual Dollar Limitation. The aggregate Fair
Market Value (determined as of the time an Award is made) of all shares of Stock
with respect to which Incentive Stock Options are first exercisable by a
Participant in any calendar year may not exceed $100,000.00.
(e) Ten Percent Owners. An Incentive Stock Option may be
granted to a Ten Percent Owner, provided that at the time such option is granted
the exercise price per share of Stock shall not be less than 110% of the Fair
Market Value and such option by its terms is not exercisable after the
expiration of five (5) years from the date of its grant.
(f) Expiration of Incentive Stock Options. No Award of an
Incentive Stock Option may be made pursuant to this Plan after the expiration of
ten (10) years from the Effective Date.
(g) Right to Exercise. During a Participant's lifetime,
an Incentive Stock Option may be exercised only by the Participant.
(h) Tax-Qualified ISOP Options. All provisions of the
Plan relating to Incentive Stock Options shall be administered and interpreted
in accordance, and so as to comply, with the provisions of Section 422 of the
Code.
<PAGE> 6
6.3 Termination of Participant. Notwithstanding the exercise
periods set forth in any Award Agreement, Options shall be subject to the
following:
(a) An Option shall lapse ten years after it is granted,
unless an earlier time is set in the Award Agreement.
(b) If a Participant's employment is terminated due to
(i) Disability, (ii) Retirement, or (iii) for any other reason other than for
Cause, such Participant may exercise his or her Incentive Stock Options only to
the extent that such Incentive Stock Options would have been exercisable on the
Termination Date; provided, that such exercise is made prior to the earlier of
(i) the expiration of three (3) months (six (6) months in the case of
Disability) after the Termination Date or (ii) the expiration date of the Option
set forth in the Award Agreement. If a Participant's employment is terminated
due to Cause, the Participant's Incentive Stock Options shall automatically
lapse and not be exercisable by the Participant, whether or not such Options
were vested.
(c) If a Participant's employment, contractual or other
relationship with the Company is terminated due to (i) Disability, (ii)
Retirement, or (iii) for any other reason other than for Cause, such Participant
may exercise his or her Non-Qualified Stock Options, only to the extent that
such Options would have been exercisable on the Termination Date; provided, that
such exercise is made within six months after the Termination Date, or such
other time period as set forth in the Award Agreement. If a Participant's
employment, contractual or other relationship is terminated due to Cause, the
Participant's Non-Qualified Stock Options shall automatically lapse and not be
exercisable by the Participant, whether or not such Options were vested.
(d) If a Participant dies before his or her Options lapse
pursuant to this Section, then the Participant's Options may be exercised, only
to the extent that such Options would have been exercisable on the date of the
Participant's death; provided that such exercise is made prior to the earlier of
(i) the first anniversary of such Participant's death or (ii) the expiration
date of the Option set forth in the Award Agreement. Upon the Participant's
death, any exercisable Options may be exercised by the Participant's legal
representative or representatives.
ARTICLE 7: STOCK APPRECIATION RIGHTS
7.1 Grant of SARs. The Board is authorized to grant SARs to
Participants on the following terms and conditions:
(a) Right to Payment. Upon the exercise of a Stock
Appreciation Right, the Participant to whom it is granted has the right to
receive the excess, if any, of:
(1) The Fair Market Value of one share of Stock
on the date of exercise; over
(2) The grant price of the SAR as determined by
the Board, which shall not be less than the Fair Market Value
of one share of Stock on the date of grant in the case of any
SAR.
(b) Other Terms. All awards of Stock Appreciation Rights
shall be evidenced by an Award Agreement. The terms, methods of exercise,
methods of settlement, form of consideration payable in settlement, and any
other terms and conditions of any Stock Appreciation Right shall be determined
by the Board at the time of the grant of the Award and shall be reflected in the
Award Agreement.
ARTICLE 8: PERFORMANCE UNITS
8.1 Grant of Performance Units. The Board is authorized to grant
Performance Units to Participants on such terms and conditions as may be
selected by the Board. The Board shall have the complete discretion to determine
the number of Performance Units granted to each Participant. All Awards of
Performance Units shall be evidenced by an Award Agreement.
8.2 Right Under Performance Units. A grant of Performance Units
gives the Participant rights, valued as determined by the Board, and payable to,
or exercisable by, the Participant to whom the Performance Units are
<PAGE> 7
granted, in whole or in part, as the Board shall establish at grant or
thereafter. The Board shall set performance goals and other terms or conditions
to payment of the Performance Units in its discretion which, depending on the
extent to which they are met, will determine the amount and value of cash,
Stock, Awards, and/or other property that will be paid to the Participant.
8.3 Other Terms. Performance Units may be payable in cash, Stock,
or other Awards or property, or any combination thereof, and have such other
terms and conditions as determined by the Board and reflected in the Award
Agreement.
ARTICLE 9: RESTRICTED STOCK AWARDS
9.1 Restricted Stock Awards. The Board is authorized to make
Awards of Restricted Stock to Participants either in the form of a grant of
Stock or an offer to sell Stock to a Participant, in such amounts and subject to
such terms, conditions and restrictions as may be selected by the Board. All
Awards of Restricted Stock shall be evidenced by an Award Agreement.
9.2 Issuance and Restrictions. Restricted Stock shall be subject
to such restrictions on transferability and other restrictions, including
without limitation "vesting" or forfeiture restrictions, as the Board may
impose. These restrictions may lapse separately or in combination at such times,
under such circumstances, in such installments, or otherwise, as the Board
determines at the time of the grant of the Award or thereafter.
9.3 Forfeiture. Except as otherwise determined by the Board at the
time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the Company;
provided, however, that the Board may provide in any Award Agreement that
restrictions or forfeiture conditions relating to Restricted Stock will be
waived in whole or in part in specified circumstances, and the Board may in
other cases waive in whole or in part restrictions or forfeiture conditions
relating to Restricted Stock.
9.4 Payment and Certificates for Restricted Stock. If a Restricted
Stock Award provides for the purchase of Stock by a Participant, payment shall
be made pursuant to Article 11 of the Plan. Restricted Stock granted under the
Plan may be evidenced in such manner as the Board shall determine. To the extent
that an Award is granted in the form of newly issued Restricted Stock, the Award
recipient, as a condition to the grant of such an Award, shall be required to
pay to the Company in cash, cash equivalents or other legal consideration an
amount equal to the par value of such Restricted Stock. To the extent that an
Award is granted in the form of Restricted Stock from the Company's treasury, no
such cash consideration shall be required of the Award recipients. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock, and
the Company shall retain physical possession of the certificate until such time
as all applicable restrictions lapse.
ARTICLE 10: STOCK-REFERENCE AWARDS
10.1 Grant of Stock-Reference Awards. The Board is authorized,
subject to limitations under applicable law, to grant to Participants such other
Awards that are payable in, valued in whole or in part by reference to, or
otherwise based on or related to shares of Stock, as deemed by the Board to be
consistent with the purposes of the Plan, including without limitation shares of
Stock awarded purely as a "bonus" and not subject to any restrictions or
conditions, other rights convertible or exchangeable into shares of Stock, and
awards valued by reference to book value of shares of Stock or the value of
securities of or the performance of specified divisions or Subsidiaries of the
Company. The Board shall determine the terms and conditions of such Awards.
ARTICLE 11: PAYMENT FOR STOCK PURCHASES;
WITHHOLDING TAXES; RELOAD OPTIONS
11.1 Payment. Payment for Stock purchased pursuant to the Plan may
be made in cash (by check) or, where expressly approved for the Participant by
the Board in an Award Agreement or otherwise in writing and where permitted by
law:
<PAGE> 8
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of (or attestation to the ownership of)
Stock valued at Fair Market Value on the date new Stock is purchased under the
Plan; provided, however, that such surrender or attestation shall not be
permitted if such action would cause the Company to recognize compensation
expense (or additional compensation expense) with respect to the Award for
financial reporting purposes;
(c) by waiver of compensation due or accrued to
Participant for services rendered;
(d) by tender of property acceptable to the Board;
(e) with respect only to purchases upon exercise of an
Option, and provided that a public market for the Company's stock then exists:
(1) through a "same day sale" commitment from
Participant and a broker-dealer that is a member of the
National Association of Securities Dealers (a "NASD Dealer")
whereby Participant irrevocably elects to exercise the Option
and to sell a portion of the Stock so purchased to pay for the
exercise price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Stock to forward the exercise
price directly to the Company;
(2) through a "margin" commitment from
Participant and a NASD Dealer whereby Participant irrevocably
elects to exercise the Option and to pledge the Stock so
purchased to the NASD Dealer in a margin account as security
for a loan from the NASD Dealer in the amount of the exercise
price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Stock to forward the exercise price directly
to the Company; or
(3) through any other "cashless exercise"
procedure approved by the Board; or
(f) by any combination of the foregoing, or any other
method of payment acceptable to the Board in its sole discretion.
11.2 Loan Guarantees. The Board may, in its discretion, help the
Participant pay for Shares purchased under the Plan by authorizing a guarantee
by the Company of a third-party loan to the Participant.
11.3 Tax Withholding. The Company or any Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to remit
to the Company, an amount sufficient to satisfy federal, state, and local taxes
(including the Participant's FICA obligation) required by law to be withheld
with respect to any taxable event arising as a result of this Plan. Whenever,
under the Plan, payments in satisfaction of Awards are to be made in cash, such
payment shall be net of an amount sufficient to satisfy federal, state, and
local withholding tax requirements. With respect to withholding required upon
any taxable event relating to the issuance of Stock under the Plan, Participants
may elect (the "Election"), on or prior to the date of such taxable event, to
satisfy the withholding requirement, in whole or in part, by having the Company
or any Subsidiary withhold shares of Stock having a Fair Market Value on the
date of withholding equal to the amount to be withheld for tax purposes. The
Board may disapprove any Election or may suspend or terminate the right to make
Elections. An Election is irrevocable. The Board may, at the time any Award is
granted, require that any and all applicable tax withholding requirements be
satisfied by the withholding of shares of Stock as set forth above.
11.4 Reload Options. Award Agreements may contain a provision
pursuant to which a Participant who pays all or a portion of the exercise price
of an Option or the tax required to be withheld pursuant to an exercise of an
Option by surrendering shares of Stock pursuant to Sections 11.1 or 11.3,
respectively, shall be automatically granted an Option for the purchase of Stock
equal to the number of shares surrendered (a "Reload Option"). The grant of the
Reload Option shall be effective on the date the Participant surrenders the
shares of Stock in respect of which the Reload Option is granted (the "Reload
Date"). The Reload Option shall have an exercise price equal to the Fair Market
Value of the Stock on the Reload Date, and shall have a term which is no longer,
and which shall lapse no later, than the original term of the underlying option.
If stock otherwise available under an Incentive Stock
<PAGE> 9
Option is withheld pursuant to Section 11.3, any Reload Option granted in
connection with the withholding shall be treated as a new Incentive Stock
Option, subject to the rules set forth in Section 6.2.
ARTICLE 12: PROVISIONS APPLICABLE TO AWARDS
12.1 Stand-Alone, Tandem, and Substitute Awards. Awards granted
under the Plan may, in the discretion of the Board, be granted either alone or
in addition to, in tandem with, or in substitution for, any other Award granted
under the Plan. Awards granted in addition to or in tandem with other Awards may
be granted either at the same time as or at a different time from the grant of
such other Awards.
12.2 Modification or Assumption of Awards. Within the limitations
of the Plan, the Board may modify, extend or assume outstanding Awards or may
accept the cancellation of outstanding Awards (whether granted by the Company or
by another issuer) in return for the grant of new Awards for the same or a
different number of shares and at the same or a different exercise price. The
foregoing notwithstanding, no modification of an Award shall, without the
consent of the Participant, alter or impair his or her rights or obligations
under such Award.
12.3 Exchange Provisions. The Board may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award, based on the terms and conditions the Board determines and
communicates to the Participant at the time the offer is made.
12.4 Term of Award. The term of each Award shall be for the period
as determined by the Board, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right exceed a period of ten
years from the date of its grant.
12.5 Form of Payment for Awards. Subject to the terms of the Plan
and any applicable law or Award Agreement, payments or transfers to be made by
the Company or a Subsidiary on the grant or exercise of an Award may be made in
such forms as the Board determines at or after the time of grant, including
without limitation, cash, Stock, other Awards, or other property, or any
combination, and may be made in a single payment or transfer, in installments,
or on a deferred basis, in each case determined in accordance with rules adopted
by, and at the discretion of, the Board.
12.6 Limits on Transfer. No right or interest of a Participant in
any Award may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or a Subsidiary, or shall be subject to any lien,
obligation, or liability of such Participant to any other party other than the
Company or a Subsidiary. Except as otherwise provided below, no Award shall be
assignable or transferable by a Participant other than by will or the laws of
descent and distribution or, except in the case of an Incentive Stock Option,
pursuant to a "domestic relations order" as defined in the Code or Title I of
the Employee Retirement Income Security Act, or the rules thereunder. In the
Award Agreement for any Award other than an Award that includes an Incentive
Stock Option, the Board may allow a Participant to assign or otherwise transfer
all or a portion of the rights represented by the Award to specified individuals
or classes of individuals, or to a trust or other entity benefiting such
individuals or classes of individuals, subject to such restrictions,
limitations, or conditions as the Board deems appropriate. At the discretion of
the Board, the Company may reserve to itself or its assignees in any Award (a) a
right of first refusal to purchase any Stock which a Participant may propose to
transfer to a third party and/or (b) a right to repurchase any and all Stock
held by a Participant upon the Participant's termination of employment or other
relationship with the Company or its Parent or Subsidiary for any reason,
including Death or Disability, at a price for such Stock as determined by the
Board.
12.7 Market Standoff. In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, a Participant shall not
sell, make any short sale of, loan, hypothecate, pledge, grant any option for
the purchase of, or otherwise dispose or transfer for value or otherwise agree
to engage in any of the foregoing transactions with respect to, any Stock issued
pursuant to an Award granted under the Plan without the prior written consent of
the Company or its underwriters. Such limitations shall be in effect for such
period of time as may be requested by the Company or such underwriters and
agreed to by the Company's officers and directors with respect to their shares;
provided, however, that in no event shall such period exceed 180 days. The
limitations of this subsection shall in all events terminate two years
<PAGE> 10
after the effective date of the Company's initial public offering. Holders of
Stock issued pursuant to an Award granted under the Plan shall be subject to the
market standoff provisions of this subsection only if the officers and directors
of the Company are also subject to similar arrangements.
In the event of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the Company's outstanding Stock effected as a class without the
Company's receipt of consideration, then any new, substituted or additional
securities distributed with respect to the purchased Stock shall be immediately
subject to the provisions of this subsection, to the same extent the purchased
Stock is at such time covered by such provisions.
In order to enforce the limitations of this subsection, the
Company may impose stop-transfer instructions with respect to the purchased
Stock until the end of the applicable standoff period.
12.8 Stock Certificates. All Stock certificates delivered under the
Plan are subject to any stop-transfer orders and other restrictions as the Board
deems necessary or advisable to comply with federal or state securities laws,
rules, and regulations and the rules of any national securities exchange or
automated quotation system on which the Stock is listed, quoted, or traded. The
Board may place legends on any Stock certificate to reference restrictions
applicable to the Stock.
ARTICLE 13: CHANGES IN CAPITAL STRUCTURE
13.1 General; Adjustments. In the event of a subdivision of the
outstanding Stock, a declaration of a dividend payable in Stock, a declaration
of a dividend payable in a form other than Stock in an amount that has a
material effect on the price of the Stock, a combination or consolidation of the
outstanding Stock (by classification or otherwise) into a lesser number of
shares of Stock, a recapitalization, a spin-off or a similar occurrence, or the
assumption and conversion of outstanding grants of a company acquired by the
Company or its Subsidiary, the Board shall make such adjustments as it, in its
sole discretion, deems appropriate in one or more of (a) the number of shares of
Stock available for future Awards under Article 3, (b) the limitations set forth
in Article 3, (c) the number and kind of shares of Stock covered by each
outstanding Award or (d) the exercise price under each outstanding Option and
other Award in the nature of rights that may be exercised. Except as provided in
this Article 13, a Participant shall have no rights by reason of any issue by
the Company of stock of any class or securities convertible into stock of any
class, any subdivision or consolidation of shares of stock of any class, the
payment of any stock dividend or any other increase or decrease in the number of
shares of stock of any class.
13.2 Dissolution or Liquidation. To the extent not previously
exercised, Awards shall terminate immediately prior to the dissolution or
liquidation of the Company.
13.3 Reorganizations. In the event that the Company is a party to a
merger, consolidation or other reorganization, outstanding Awards shall be
subject to the agreement of merger, consolidation or reorganization. The Board
may cause such agreement to provide, without limitation, (a) for the
continuation of outstanding Awards by the Company (if the Company is a surviving
corporation), (b) for their assumption by the surviving corporation or its
parent or subsidiary, (c) for the substitution by the surviving corporation or
its parent or subsidiary of its own awards for such Awards, (d) for accelerated
vesting, accelerated expiration and/or lapse of restrictions, or (e) for
settlement in cash or cash equivalents. If the Board does not cause such
agreement to provide for one of the alternatives in (a), (b), (c), (d) or (e)
above, then all outstanding Options and other Awards in the nature of rights
that may be exercised shall become fully exercisable and all restrictions on
other Awards shall lapse, upon the effectiveness of the transactions
contemplated by such agreement.
ARTICLE 14: AMENDMENT, MODIFICATION, AND TERMINATION
14.1 Amendment, Modification, and Termination. With the approval of
the Board, at any time and from time to time, the Board may terminate, amend, or
modify the Plan. An amendment or modification of the Plan shall be subject to
the approval of the stockholders of the Company only to the extent required by
applicable laws, regulations and rules.
<PAGE> 11
14.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant.
ARTICLE 15: GENERAL PROVISIONS
15.1 No Rights to Awards. No Participant or employee shall have any
claim to be granted any Award under the Plan, and neither the Company nor the
Board is obligated to treat Participants and employees uniformly.
15.2 No Stockholders Rights. No Award gives the Participant any of
the rights of a stockholder of the Company unless and until shares of Stock are
in fact issued to such person in connection with such Award.
15.3 No Right to Employment. Nothing in the Plan or any Award
Agreement shall interfere with or limit in any way the right of the Company or
any Subsidiary to terminate any Participant's employment or other relationship
with the Company at any time, nor confer upon any Participant any right to
continue in the employment or any other relationship of the Company or any
Subsidiary.
15.4 Unfunded Status of Awards. The Plan is intended to be an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Award Agreement shall give the Participant any rights that
are greater than those of a general creditor of the Company or any Subsidiary.
15.5 Relationship to Other Benefits. No payment under the Plan
shall be taken into account in determining any benefits under any pension,
retirement, savings, profit sharing, group insurance, welfare or other benefit
plan of the Company or any Subsidiary.
15.6 Expenses. The expenses of administering the Plan shall be
borne by the Company and its Subsidiaries.
15.7 Titles and Headings. The titles and headings of the Articles
and Sections in the Plan are for convenience of reference only, and in the event
of any conflict, the text of the Plan, rather than such titles or headings,
shall control.
15.8 Fractional Shares. No fractional shares of stock shall be
issued and the Board shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
15.9 Securities Law Compliance. With respect to any person who is,
on the relevant date, obligated to file reports under Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with all applicable
conditions of Section 16 or its successors under the Exchange Act. To the extent
any provision of the Plan or any Award Agreement or any action by the Board
fails to so comply, it shall be void to the extent permitted by law and voidable
as deemed advisable by the Board.
15.10 Government and Other Regulations. The obligation of the
Company to make payment of awards in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Company shall be under no obligation to
register under the Securities Act, any of the shares of Stock paid under the
Plan. If the shares of Stock paid under the Plan may in certain circumstances be
exempt from registration under the Securities Act, the Company may restrict the
transfer of such shares in such manner as it deems advisable to ensure the
availability of any such exemption. As a condition to the exercise of an Option
or any other receipt of Stock pursuant to an Award under the Plan, the Company
may require the Participant to represent and warrant at the time of any such
exercise or receipt that such Stock is being purchased or received only for the
Participant's own account and without any present intention to sell or
distribute such Stock if, in the opinion of counsel for the Company, such a
representation is required by any relevant provision of the aforementioned laws.
At the option of the company, a stop-transfer order against any such Stock may
be placed on the official stock books and records of the Company, and a legend
indicating that such Stock may not be pledged,
<PAGE> 12
sold or otherwise transferred, unless an opinion of counsel is provided
(concurred in by counsel for the Company) standing that such transfer is not in
violation of any applicable law or regulation, may be stamped on stock
certificates to ensure exemption from registration. The Board may also require
such other action or agreement by the Participant as may from time to time be
necessary to comply with federal and state securities laws.
15.11 Governing Law. The Plan and all Award Agreements shall be
construed in accordance with and governed by the laws of the State of Arizona.
15.12 Nonexclusivity of the Plan. Neither the adoption of the Plan
nor the submission of the Plan to the stockholders of the Company for approval
shall be construed as creating any limitations upon the right and authority of
the Board to adopt such other incentive compensation arrangements (which
arrangements may be applicable either generally to a class or classes of
individuals or specifically to a particular individual or individuals) as the
Board in its discretion determines desirable, including, without limitation, the
granting of stock options or other rights otherwise than under the Plan.
ARTICLE 16: DEFINITIONS
16.1 Definitions. The following words and phrases shall have the
following meanings for purposes of this Plan:
(a) "Award" means any Option, Stock Appreciation Right,
Restricted Stock Award, Performance Unit, Stock-Reference Award or any other
right or interest relating to Stock, cash or property, granted to a Participant
under the Plan.
(b) "Award Agreement" means any written agreement,
contract, or other instrument or document evidencing an Award.
(c) "Board" means the Board of Directors of the Company
or, if the context so requires, a Committee thereof appointed pursuant to
Article 5.
(d) "Cause" means (i) conviction of any crime involving
fraud or gross misconduct, (ii) noncompliance with reasonable directives of the
Board or its designees, (iii) violation of Company rules, policies or procedures
or of the Plan or any applicable Award Agreement.
(e) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(f) "Committee" means the committee of the Board
described in Article 5.
(g) "Disability" means the following: A Participant shall
be disabled if he or she is unable to perform the duties of his customary
position of employment by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which can be
expected to last for a continuous period of not less than 12 months. The Board
may require such medical or other evidence as it deems necessary to judge the
nature and permanency of the Participant's condition.
(h) "Fair Market Value" means with respect to Stock or
any other property, the fair market value of such Stock or other property
determined by the Board in good faith using such methods or procedures as may be
established from time to time by the Board. Unless otherwise determined by the
Board, the Fair Market Value of Stock as of any date shall be the mean between
the bid and asked quotations for the Stock on that date as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ)
or, if there are no bid or asked quotations on such date, the mean between the
bid and asked quotations on the next preceding date for which quotations are
available. If the Stock is subsequently listed and traded upon a recognized
securities exchange or shall be quoted on a recognized national market system,
the Fair Market Value shall be the closing price on such date or, if no closing
price is so reported for that date, the closing price on the next preceding date
for which a closing price was reported.
<PAGE> 13
(i) "Incentive Stock Option" means an Option that is
intended to meet the requirements of Section 422 of the Code or any successor
provision thereto.
(j) "Non-Qualified Stock Option" means an Option that is
not intended to be an Incentive Stock Option.
(k) "Option" means a right granted to a Participant under
Article 6 of the Plan to purchase Stock at a specified price during specified
time periods. An Option may be either an Incentive Stock Option or a
Non-Qualified Stock Option.
(l) "Participant" means a person who, as an officer,
employee, consultant, independent contractor, or adviser of the Company or any
Subsidiary, has been granted an Award under the Plan.
(m) "Performance Unit" means a right granted to a
Participant under Article 8 to receive cash, Stock, or other Awards.
(n) "Plan" means the SalesLogix Corporation 1996 Equity
Incentive Plan, as amended from time to time.
(o) "Restricted Stock Award" means Stock granted to a
Participant or offered for sale to a Participant under Article 9.
(p) "Retirement" means a Participant's termination of
employment with the Company after attaining any normal or early retirement age
specified in any pension, profit sharing, or other retirement program sponsored
by the Company, if any.
(q) "Securities Act" means the Securities Act of 1933, as
amended.
(r) "Stock" means Common Stock ($.001 par value) of the
Company and such other securities of the Company that may be substituted for
Stock pursuant to Article 13.
(s) "Stock Appreciation Right" or "SAR" means a right
granted to a Participant under Article 7 to receive a payment equal to the
difference between the Fair Market Value of a share of Stock as of the date of
exercise of the SAR over the grant price of the SAR, all as determined pursuant
to Article 7.
(t) "Stock-Reference Award" means a right, granted to a
Participant under Article 10.
(u) "Subsidiary" means any corporation of which a
majority of the outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Company.
(v) "Ten Percent Owner" means any individual who, at the
date of grant of an Incentive Stock Option, owns stock possessing more than ten
percent of the total combined voting power of all classes of Stock of the
Company or a Subsidiary. For purposes of determining such percentage, the
following rules shall apply:
(1) The individual with respect to whom such
percentage is being determined shall be considered as owning
the Stock owned, directly or indirectly, by or for his
brothers and sisters (whether by the whole or half blood),
spouse, ancestors, and lineal descendants; and
(2) Stock owned, directly or indirectly, by or
for a corporation, partnership, estate, or trust, shall be
considered as being owned proportionately by or for its
stockholders, partners, or beneficiaries.
<PAGE> 14
(w) "Termination Date" means the date on which the
employment (or other service or relationship in the case of a Participant who is
not an employee of the Company) of a Participant terminates for any reason or no
reason.
