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EXHIBIT 10.8
OBJECTSPACE, INC.
AMENDED AND RESTATED
1994 RESTRICTED STOCK AND STOCK OPTION PLAN
ARTICLE I
PURPOSE OF PLAN
This Amended and Restated 1994 Restricted Stock and Stock Option Plan
(the "Plan") of ObjectSpace, Inc. is intended to provide greater incentives
for key employees to attain and maintain the highest standards of performance,
to attract and retain key employees of outstanding competence and ability, to
stimulate the active interest of such persons in the development and financial
success of the Company, to further the identity of interest of such employees
with those of the Company's owners generally and to reward such employees for
outstanding performance. As used herein, the term "Company" means ObjectSpace,
Inc. and each of its fifty percent (50%) or more owned affiliates.
ARTICLE II
ADMINISTRATION OF THE PLAN
2.1 APPOINTMENT OF PLAN MANAGEMENT COMMITTEE. The Plan shall be
administered by a plan management committee (the "Committee") of not less than
two persons designated by the Board of Directors of the Company; provided,
however, that the Plan shall be administered by the Board of Directors (and
all references herein to the Committee shall be deemed a reference to the
Board of Directors) until such time as the Committee is established by the
Board of Directors.
2.2 COMMITTEE POWERS. The Committee shall be deemed to have and to be
exercising all of the powers of the Board of Directors of the Company in the
performance of any of the powers and duties delegated to it under the Plan,
including, but without limiting the generality of the foregoing, (a) the
selection of employees who shall be awarded shares of Common Stock of the
Company ("Common Stock") or options ("Options") to acquire shares of Common
Stock and (b) the determination of the number of shares of Common Stock to be
awarded, or for which Options will be granted, to each such employee. The
Committee shall have full power and authority to interpret the provisions of
the Plan and may from time to time establish eligibility requirements for
participation in the Plan and rules for the administration of the Plan that
are not inconsistent with the provisions and purposes of the Plan.
2.3 COMMITTEE ACTION. A majority of the members of the Committee
shall constitute a quorum for the transaction of business. All action taken by
the Committee at a meeting shall be by the vote of a majority of those present
at such meeting, but any action may be taken by the Committee without a
meeting upon written consent signed by all of the members of the Committee.
2.4 COMMITTEE DETERMINATIONS CONCLUSIVE. All determinations of the
Committee as to which employees shall receive Options or shares of Common
Stock under the Plan, the number of shares of Common Stock to be awarded or
for which Options will be granted, and the terms and vesting schedule
applicable to such Options or shares of Common Stock, shall be final, binding,
and conclusive upon all persons. The determination of the Committee as to any
disputed question arising under the Plan, including questions of construction
and interpretation, shall be final, binding and conclusive upon all persons.
Without limiting the generality of the foregoing, the determination of the
Committee as to whether an employee has terminated his
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EXHIBIT 10.8
employment and the date thereof, or the cause to which termination of
employment is attributable, shall be final, binding, and conclusive upon all
persons.
2.5 COMMITTEE LIABILITY. No member of the Committee shall be liable
for any act done or determination made in good faith.
ARTICLE III
GRANT OF OPTIONS AND SHARES OF COMMON STOCK
3.1 MAXIMUM NUMBER OF SHARES OF COMMON STOCK. The maximum number of
shares of Common Stock which may be awarded and outstanding and for which
Options may be awarded and outstanding at any one time, and the maximum number
of shares of Common Stock awarded or for which Options may be granted to any
one employee, shall be determined by the Committee in its sole discretion;
provided, however, that the aggregate number of shares of Common Stock awarded
or for which Options may be granted to all employees pursuant to the Plan
shall not be more than 1,000,000; provided, however, that the maximum number
of shares for which an Option or Options may be granted to any one employee
during any calendar year shall not exceed 200,000 shares. In the event that
any outstanding shares of Common Stock or Options are forfeited pursuant to
Sections 5.2(c), 5.3(c) and 5.3(d) hereof, such forfeited shares or options
shall be canceled and shall no longer be considered outstanding and may again
be subject to award under the Plan.
3.2 DESIGNATION OF EMPLOYEES. The persons eligible for participation
in the Plan as recipients of shares of Common Stock or Options (the
"Participants") shall be determined by the Committee and shall include only
employees. In determining the employees to whom shares of Common Stock or
Options shall be granted and the number of shares of Common Stock to be
covered by each such grant, the Committee may take into account the nature of
the services rendered by the respective employees, their present and potential
contributions to the success of the Company and its subsidiaries, and such
other factors as the Committee in its sole discretion shall deem relevant. Any
employee who has been granted shares of Common Stock or Options hereunder may
be granted additional shares of Common Stock or Options, if the Committee
shall so determine.
ARTICLE IV
CAPITAL CHANGE OF THE COMPANY
4.1 RIGHT TO CHANGE CAPITAL STRUCTURE. The existence of this Plan and
any outstanding shares of Common Stock or Options granted hereunder shall not
affect in any way the right or power of the Company or its owners to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred
equity interests, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
act or proceeding whether of a similar character or otherwise.
4.2 REORGANIZATION OF THE COMPANY.
(a) In the event the outstanding shares of Common Stock of the Company
shall at any time be changed or exchanged by declarations of a stock
dividend, split-up, combination of shares, or recapitalization, the
maximum aggregate number and class of shares as to which awards may be
granted under the Plan, the number of shares of Common Stock covered
by each outstanding Option, and/or the exercise price of each
outstanding Option shall be appropriately adjusted by the Committee
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EXHIBIT 10.8
whose determination shall be conclusive, final and binding; PROVIDED,
HOWEVER, that no adjustment shall be made with respect to Options,
unless the aggregate effect of all such increases and decreases
occurring in any one fiscal year after the effective date of this Plan
increases or decreases the number of issued and outstanding shares of
Common Stock of the Company by two percent (2%) or more; PROVIDED,
FURTHER, that any Option to purchase fractional shares resulting from
any such adjustment shall be eliminated by rounding down to the
nearest whole share of Common Stock.
(b) If the Company participates in any merger, consolidation
or similar occurrence where the Company is not the surviving entity,
the surviving corporation or its parent or subsidiary (the "Surviving
Corporation") may assume the Company's duties and obligations as to
Options or Unvested Shares (as defined in Section 5.2(a)) granted
under the Plan and substitute new option rights with respect to the
stock of the Surviving Corporation for such Options or common stock
of the Surviving Corporation for such Unvested Shares; PROVIDED,
HOWEVER, that the value, nature and terms (including vesting periods,
forfeiture provisions and restrictions) of the new options and new
shares of stock shall be the same as the Options and Unvested Shares
for which the new options and new shares of stock are substituted. If
the Company (i) participates in any merger, consolidation or similar
occurrence where the Company is not the surviving entity and the
Surviving Corporation does not assume the Company's duties and
obligations as to Options and Unvested Shares awarded under the Plan,
or (ii) undergoes any sale of all or substantially all of its assets
following which all or any portion of the proceeds of such sale are
to be distributed to the stockholders of the Company (each such event
being hereinafter referred to as an "Extraordinary Transaction"), the
Committee, in its sole discretion, may designate a date (the
"Extraordinary Vesting Date"), not less than twenty (20) calendar
days immediately before the effective date of such Extraordinary
Transaction at which time all Unvested Shares and Unvested Options
(as defined in Sections 5.2(a) and 5.3(a), respectively) shall become
Vested Shares and Vested Options (as defined in Sections 5.2(f) and
5.3(e), respectively). In such a case, during the period beginning on
the Extraordinary Vesting Date and ending on the effective date of
the Extraordinary Transaction, each participant may exercise all
Vested Options (including those that become vested pursuant to the
provisions of this Section 4.2(b)) in accordance with the terms of
Section 5.3(i) hereof Any Options outstanding under the Plan after
the effective date of the Extraordinary Transaction which have not
been exercised on or prior to such effective date shall terminate and
thereupon become null and void.
(c) Any shares of Common Stock or other securities or assets
(other than ordinary cash dividends) received by a Participant with
respect to Unvested Shares shall also be unvested, shall be subject to
the restrictions and forfeiture provisions set forth in Article V, and
shall be deposited by the Participant with the Company in the manner
specified in Section 5.2(d).
ARTICLE V
TERMS OF RESTRICTED STOCK AND OPTIONS
5.1 GENERAL. Subject to the provisions of Section 2.2 and 3.2 hereof,
the Committee may, from time to time, determine which employees shall be
granted shares of Common Stock or Options under the Plan, the number of shares
of Common Stock granted or subject to each Option, and the time or times at
which shares of Common Stock or Options shall be granted. All shares of Common
Stock and Options awarded to Participants under this Plan (and shares of
Common Stock issuable upon exercise of such Options) shall be subject to the
terms ind conditions set forth in this Article V and to such other terms and
conditions not inconsistent with the Plan as shall be contained in a
Restricted Stock Agreement or Option Agreement entered into between the
Participant and the Company. In the event of any inconsistency between the
terms and conditions of this Plan and those contained in a Restricted Stock
Agreement or Option Agreement, the
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EXHIBIT 10.8
provisions of the Plan shall govern. The Restricted Stock Agreement or Option
Agreement shall be in a form specified by the Committee and shall set forth
the Vesting Period and forfeiture provisions and other terms and conditions
applicable to the shares of Common Stock or Options awarded hereunder (and
shares of Common Stock issuable upon exercise of such Options) and such other
matters, including compliance with applicable federal and state securities
laws and methods of withholding required taxes, as the Committee shall in its
sole discretion determine.
5.2 RESTRICTED STOCK. All shares of Common Stock awarded to
Participants under the Plan shall be subject to the following additional terms
and conditions.
(a) Except as otherwise provided in the Participant's
Restricted Stock Agreement, all shares of Common Stock awarded to
Participants under this Plan shall initially be unvested ("Unvested
Shares") and will be subject to the substantial risk of forfeiture and
restrictions on transfer referred to in Sections 5.2(b)-(d).
(b) Unvested Shares may not be sold, assigned, transferred,
pledged, or otherwise encumbered or disposed of, except as hereinafter
provided. No transfer of a participant's rights with respect to
Unvested Shares, whether voluntary or involuntary, by operation of law
or otherwise, shall vest the transferee with any interest or right in
or with respect to such Unvested Share, but immediately upon any
attempt to transfer such rights, such Unvested Share, and all of the
rights related thereto, shall be forfeited by the Participant and the
transfer shall be of no force or effect.
(c) If a Participant ceases to be an employee of the Company
or one of its fifty percent (50%) or more owned affiliates for any
reason, all Unvested Shares shall be forfeited and returned to the
Company upon such termination of employment, subject to the terms and
conditions set forth in the Participant's Restricted Stock Agreement.
(d) Each certificate issued in respect of shares of Common
Stock awarded under the Plan shall be registered in the name of the
Participant and deposited by him, together with a stock power endorsed
in blank, with the Company and shall bear the following legend:
"THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF
STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE) CONTAINED IN THE AMENDED
AND RESTATED 1994 RESTRICTED STOCK AND STOCK OPTION PLAN FOR
OBJECTSPACE, INC. AND AN AGREEMENT ENTERED INTO BETWEEN THE
REGISTERED OWNER AND OBJECTSPACE, INC. COPIES OF SUCH PLAN
AND AGREEMENT ARE ON FILE IN THE PRINCIPAL OFFICE OF
OBJECTSPACE, INC., DALLAS, TEXAS."
(e) Except for the restrictions on transfer and subject to
the risk of forfeiture set forth in Sections 5.2(b)-(d), and subject
to the agreement specified in Section 5.2(g) hereof, any Participant
who receives Unvested Shares, as owner of such Unvested Shares, shall
have all the rights of a holder of Common Stock, including but not
limited to the right to receive all dividends paid on such shares and
the right to vote such shares.
(f) Provided that the Participant remains employed by the
Company (or a 50% or more owned affiliate of the Company) continuously
throughout the Vesting Period applicable to the Unvested Shares which
is specified in the Participant's Restricted Stock Agreement, and
subject to such other terms and conditions as are set forth in the
Participant's Restricted Stock Agreement, such
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EXHIBIT 10.8
Unvested Shares shall become vested ("Vested Shares") and shall no
longer be subject to the transfer restrictions and forfeiture
provisions set forth in Sections 5.2(b)-(d) (but shall be subject to
the agreement specified in Section 5.2(g) hereof).
(g) If the Company so requests, the Participant shall execute
a counterpart of a shareholders' agreement among the Company and its
shareholders, as in effect at such time or in a form specified by the
Company, which shareholders' agreement may, among other things, set
forth terms and conditions applicable to the participant's exercise of
voting rights with respect to Unvested Shares and Vested Shares and
restrictions applicable to sales or other dispositions of Vested
Shares.
(h) As soon as practicable after Unvested Shares become
Vested shares, the Company shall redeliver to the Participant, or his
legal representative, the certificates representing the shares of
Common Stock deposited with it pursuant to Section 5.2(d). Such
certificates, upon delivery to the Participant, shall no longer bear
the legend set forth in Section 5.2(d).
5.3 OPTIONS. All Options awarded to Participants under this Plan shall
be subject to the following additional terms and conditions.
(a) Except as otherwise provided in the Participant's Option
Agreement, all Options awarded to Participants under this Plan shall
initially be unvested ("Unvested Options") and will be subject to the
substantial risk of forfeiture and other restrictions hereinafter
referred to.
(b) The purchase price of each share of Common Stock subject
to an option granted pursuant to the Plan shall be determined by the
Committee on the date of the grant.
(c) The Committee shall determine at the date of grant of an
Option what conditions shall apply to the exercise and expiration of
Vested Options (as defined in Section 5.3(e)) in the event the
Participant ceases to be employed by the Company for any reason. No
Option shall be exercisable after the expiration of ten (10) years
from the date the Option is granted, or such shorter period as is
established by the Committee and set forth in the Participant's Option
Agreement. No Option shall be exercisable prior to the time it becomes
a Vested Option.
(d) If a Participant ceases to be an employee of the Company
or one of its 50% or more owned affiliates for any reason, (i) all
Vested Options (as defined in Section 5.3(e)) shall expire and
terminate pursuant to the terms set forth in the Participant's Option
Agreement and (ii) all Unvested Options shall be forfeited and
returned to the Company upon such termination of employment, subject
to the terms and conditions set forth in the Participant's Option
Agreement.
(e) Provided that the Participant remains employed by the
Company (or a 50% or more owned affiliate of the Company) continuously
throughout the Vesting Period applicable to the Unvested Option which
is specified in the Participant's Option Agreement, and subject to
such other terms and conditions as are set forth in the Participant's
Option Agreement, such Unvested Option shall become vested ("Vested
Option") and shall no longer be subject to the forfeiture provisions
set forth in Section 5.3(d)(ii), but shall be subject to the
expiration and termination provisions referred to in Section
5.3(d)(i).
(f) No Vested Option or Unvested Option granted under the
Plan shall be assigned or transferred otherwise than by last will and
testament or by the laws of descent and distribution or otherwise
pledged or hypothecated (whether by operation of law or otherwise).
During the lifetime of a Participant, any Vested Options held by the
Participant shall be exercisable only by the Participant
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EXHIBIT 10.8
or the Participant's attorney in fact. Any attempted assignment,
transfer, pledge or hypothecation contrary to the provisions hereof
shall be void and ineffective for all purposes.
(g) A Participant shall have no rights as a stockholder with
respect to any shares of Common Stock of the Company for which the
Participant holds an Option, until after the Option is exercised and
the stock certificates are issued to the Participant for such Shares.
(h) If the Company so requests, the Participant shall execute
a counterpart of a shareholders' agreement among the Company and its
shareholders, as in effect at such time or in a form specified by the
Company, which shareholders' agreement may, among other things, set
forth terms and conditions applicable to the Participant's exercise of
voting rights with respect to, and restrictions applicable to sales or
other dispositions of, shares of Common Stock received upon exercise
of an Option.
(i) The Participant may exercise any Vested Option, in whole
or in part, in the manner specified in this Section 5.3(i) at any time
on or before the earlier of (i) the tenth anniversary of the date of
grant of such Option, (ii) the date specified in the last two
sentences of Section 4.2(b) hereof, or (iii) the date of expiration
of such Option as set forth in Participant's Option Agreement in the
event the Participant ceases to be employed by the Company for any
reason. In order to exercise a Vested Option in whole or in part, the
Participant must (i) notify the Company in writing of the full number
of shares of Common Stock with respect to which the Option is being
exercised, (ii) deliver to the Company the full option exercise
price, (iii) satisfy all applicable provisions of the Participant's
Option Agreement and all applicable tax withholding obligations in
accordance with Section 7.1 hereof, and (iv) if the Company so
requests, enter into the agreement referred to in Section 5.3(h)
hereof. Within ten (10) days of the Company's receipt of the
Participant's written notification and satisfaction of the
requirements specified in the preceding sentence, the Company shall
deliver to the Participant at the principal office of the Company or
such other place as shall be mutually acceptable, a certificate or
certificates for shares of Common Stock issued on exercise of the
Option; PROVIDED, HOWEVER, that the time of such issuance and
delivery may be postponed by the Company for such period as may be
required for it with reasonable diligence to comply with any
requirements of law or any exchange on which the Common Stock may
then be listed.
5.4 RESTRICTIONS ON TRANSFER. In the event shares of Common Stock
awarded to Participants under the Plan, or issued to Participants upon exercise
of Options awarded under the Plan, are not covered by a then current
registration statement under the Securities Act of 1933, as amended (the "1933
Act"), and are not otherwise exempt from such registration, such shares shall
be restricted against transfer to the extent required by the 1933 Act or the
regulations thereunder, and -all certificates representing such shares shall
bear legends describing such restrictions.
ARTICLE VI
RIGHTS OF PARTICIPANTS
6.1 LIMITATION OF RIGHTS. Nothing in this Plan shall be construed to:
(a) Give any employee any right to be awarded any Options or
shares of Common Stock other than as the Committee may, in its sole
discretion, determine;
(b) Limit in any way the right of the Company to terminate a
Participant's employment with the Company at any time;
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EXHIBIT 10.8
(c) Give a Participant or any other person any interest in
any fund or in any specific asset or assets of the Company; or
(d) Be evidence of any agreement or understanding, express or
implied, that the Company will (i) continue to employ a Participant or
(ii) employ a Participant in any particular position or at any
particular rate of remuneration.
6.2 NONALIENATION OF BENEFITS. No right or benefit under this Plan
shall be subject to alienation, sale, assignment, pledge, encumbrance or
charge, and any attempt to alienate, sell, assign, pledge, encumber or charge
the same will be void. No right or benefit hereunder shall in any manner be
liable for or subject to any debts, contracts, liabilities or torts of the
person entitled to such benefits. If any Participant hereunder shall become
bankrupt or attempt to alienate, assign, sell, pledge, encumber or charge any
right or benefit hereunder, or if any creditor shall attempt to subject the
same to a writ of garnishment, attachment, execution, sequestration, or any
other form of process or involuntary lien or seizure, then such right or
benefit shall be held by the Company for the sole benefit of the Participant,
his or her spouse, children or other dependents, or any of them in such manner
and in such proportion as the Committee shall deem proper, free and clear of
the claims of any other party whatsoever.
6.3 PREREQUISITES TO BENEFITS. No Participant hereunder, or any
person claiming through a Participant hereunder, shall have any right or
interest in the Plan or any benefits hereunder unless and until all the terms,
conditions and provisions of the Plan that affect such Participant or such
other person shall have been complied with as specified herein. The
Participant shall complete such forms and furnish such information as the
Committee may require in the administration of the Plan.
ARTICLE VII
WITHHOLDING OF TAXES
7.1 WITHHOLDING. A Participant shall be responsible for ensuring that
all applicable income tax withholding obligations and the Participant's share
of FICA withholding obligations with respect to awards of Options or shares of
Common Stock hereunder are satisfied. The method for satisfying such
withholding obligations shall be as set forth in the Participant's Restricted
Stock Agreement or Option Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 AMENDMENT OR TERMINATION OF THE PLAN.
(a) The Board of Directors may amend or terminate this Plan
at any time without the consent of any Participant. Except as
otherwise contemplated in the Plan, any amendment or termination of
this Plan shall not have any material adverse affect on the rights of
a Participant to the benefits provided hereunder as to the shares of
Common Stock or Options outstanding at the time of such amendment or
termination without the consent of such Participant.
(b) The right to grant awards of shares of Common Stock or
Options under this Plan shall terminate automatically at the close of
business on September 6, 2004 (the tenth anniversary of the effective
date of the Plan).
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EXHIBIT 10.8
8.2 RELIANCE UPON INFORMATION. The Committee may rely upon any
information supplied to them by any officer of the Company, the Company's
legal counsel or by the Company's independent public accountants in connection
with the administration of the Plan, and shall not be liable for any decision,
action or omission in reliance thereon.
8.3 GOVERNING LAW. The place of administration of the Plan shall be
conclusively deemed to be within the State of Texas. THE VALIDITY,
CONSTRUCTION, INTERPRETATION AND EFFECT OF THE PLAN AND ALL RIGHTS OF ANY AND
ALL PERSONS HAVING OR CLAIMING TO HAVE ANY INTEREST IN THE PLAN SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
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EXHIBIT 10.8
IN WITNESS WHEREOF, the Company has executed this Plan this 15th day
of March, 1997.
ObjectSpace, Inc.
By: /s/ DAVID NORRIS
--------------------------
David Norris
President
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