EXHIBIT 99
TIMBERLINE SOFTWARE CORPORATION
2000 STOCK INCENTIVE PLAN
ARTICLE I - Purpose of the Plan
The purpose of this Stock Incentive Plan (the "Plan") is to advance the
interests of Timberline Software Corporation, an Oregon business corporation
(the "Company") and its shareholders by enabling the Company to attract and
retain the services of people with training, experience and ability and to
provide additional incentive to employees and non-employee directors of the
Company and others who provide services to the Company by giving them an
additional opportunity to participate in the ownership of the Company.
ARTICLE II - Definitions
As used herein, the following definitions will apply:
(a) "Available Shares" means the number of shares of Common Stock available
at any time for issuance pursuant to Incentive Stock Options,
Non-Qualified Stock Options or Restricted Stock Grants as provided in
Article III.
(b) "Award" means any grant of an Incentive Stock Option, grant of a
Non-Qualified Stock Option or the making of a Restricted Stock Grant.
(c) "Board of Directors" means the Board of Directors of the Company.
(d) "Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee appointed by the Board of Directors under
Article V to administer this Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Timberline Software Corporation, an Oregon business
corporation, and, unless the context otherwise requires, any majority
owned subsidiary of the Company and any successor or assignee of the
Company by merger, consolidation, acquisition of all or substantially all
of the assets of the Company or otherwise.
(h) "Disabled" means a mental or physical impairment which has lasted or
which is expected to last for a continuous period of 12 months or more
and which renders an Optionee unable, in the Committee's sole discretion,
of performing the duties which were assigned to the Optionee during the
12 month period prior to such determination. The Committee's
determination of the existence of an individual's disability will be
effective when communicated in writing to the Optionee and will be
conclusive on all of the parties.
(i) "Effective Date" means the date on which this Plan is approved by the
Board of Directors.
(j) "Employee" means any person employed by the Company.
Ex. 99 - 1
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(k) "Exercise Price" means the price per share at which a shares of Common
Stock may be purchased upon exercise of an Incentive Stock Option or
Non-Qualified Stock Option.
(l) "Fair Market Value" means:
1) If the Common Stock is traded on a national securities exchange or
on either the Nasdaq National Market or Nasdaq SmallCap Market., the
average between the lowest and highest reported sales price per
share of Common Stock for such date, or if no transactions occurred
on such date, on the last date on which trades occurred;
2) If the Common Stock is not traded on a national securities exchange
or on Nasdaq but bid and asked prices are regularly quoted on the
OTC Bulletin Board Service, by the National Quotation Bureau or any
other comparable service, the average between the highest bid and
lowest asked prices per share of Common Stock as reported by such
service for such date or, if such date was not a business day, on
the preceding business day; or
3) If there is no public trading of the Common Stock within the terms
of subparagraphs 1 or 2 of this subsection, the price per a share of
Common Stock, as determined by the Committee in its sole discretion.
(m) "Grantee " means any individual who receives a Restricted Stock Grant.
(n) "Incentive Stock Option" means an option to purchase shares of Common
Stock that the Committee indicates is intended to qualify as an incentive
stock option within the meaning of Section 422 of the Internal Revenue
Code and is granted under Article VI of this Plan.
(o) "Non-Qualified Stock Option" means an option to purchase shares of Common
Stock that the Committee either indicates is intended to be a
nonqualified stock option or indicates is not intended to qualify as an
incentive stock option within the meaning of Section 422 of the Internal
Revenue Code and is granted subject to the terms and conditions of
Article VII.
(p) "Optionee" means any individual who is granted either an Incentive Stock
Option or a Non-Qualified Stock Option.
(q) "Reserved Shares" means the number of shares of Common Stock reserved for
issuance pursuant to Awards as provided in Section 3.1 of Article III.
(r) "Restricted Stock Grant" means a grant of shares of Common Stock subject
to the terms and conditions of Article IX.
(s) "Retirement" means voluntary termination of service by an Employee with
15 or more years of service with the Company who has attained the age of
65 at such termination, provided that an Employee with at least 15 years
of service with the Company shall be deemed to have met the definition of
Retirement upon voluntary termination at an age that, if added to the
number of years of service exceeding 15 years, would total 65. By way of
example, an Employee with 20 years of service shall be entitled to the
benefits for Retirement under this plan upon reaching the age of 60.
Retirement does not include termination for cause, as such term is
defined or interpreted by the Committee in its sole discretion.
(t) "Securities Act" means the Securities Act of 1933, as amended.
(u) "Significant Shareholder" means any person who owns stock possessing more
than ten percent (10%) of the total combined voting power of all classes
of stock of the Company or any parent or subsidiary of the Company. For
purposes of this definition a person shall be considered as owning all
stock owned, directly or indirectly by or for such person's brothers and
sisters, spouse, ancestors and lineal descendants. In addition, stock
owned, directly or indirectly, by or for a corporation, partnership,
Ex. 99 - 2
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estate or trust shall be considered as being owned proportionately by or
for its shareholders, partners or beneficiaries to the extent required by
Section 422 of the Internal Revenue Code.
ARTICLE III - Stock Subject to the Plan
3.1 Aggregate Number of Reserved Shares. Subject to adjustment in
accordance with Section 10.1, the total number of shares of Common Stock
reserved for issuance pursuant to all Awards is initially established at
1,500,000 shares.
3.2 Number of Available Shares. At any point in time, the number of
Available Shares shall be the number of Reserved Shares minus:
(a) the number of outstanding shares of Common Stock covered by
Restricted Stock Grants;
(b) the number of outstanding shares of Common Stock issued upon the
exercise of Incentive Stock Options and Non-Qualified Stock Options;
and
(c) the number of shares covered by Incentive Stock Options and
Non-Qualified Stock Options that have been granted and that have not
yet expired, been terminated or been cancelled to the extent that
such options have not been exercised.
If an Incentive Stock Option or Non-Qualified Stock Option expires,
terminates or is cancelled for any reason without having been exercised in
full, the shares of Common Stock covered by such option that were not
purchased through the exercise of such option will be added back to the
Available Shares. However, shares of Common Stock used by an Optionee to
satisfy withholding obligations upon the exercise of a Non-Qualified Stock
Option shall nonetheless, for purposes of this Plan, be considered as having
been issued upon the exercise of such option.
3.3 Reservation of Shares. Available Shares shall consist of authorized
but unissued shares of Common Stock of the Company. The Company will, at all
times, reserve for issuance shares of Common Stock equal to the sum of (i) the
number of shares covered by Incentive Stock Options and Non-Qualified Stock
Options that have been granted and which have not yet expired, been terminated
or been cancelled to the extent that such options have not been exercised at
such time and (ii) the number of Available Shares.
3.4 Annual Limit on Number of Shares to Any One Person. No person will be
eligible to receive Awards that, in aggregate, exceed 100,000 shares in any
calendar year except in connection with the hiring or commencement of services
from such person in which case such limit shall be 200,000 shares during such
calendar year.
ARTICLE IV - Commencement and Duration of the Plan
4.1 Effective Date of the Plan. This Plan will be effective as of the
Effective Date, subject to the provisions of Section 4.2.
4.2 Shareholder Approval of the Plan. This Plan will be submitted for the
approval of the shareholders of the Company within twelve (12) months of the
Effective Date. This Plan will be deemed approved by the shareholders if
approved by a majority of the votes cast at a duly held meeting of the
Company's shareholders at which a quorum is present in person or by proxy.
Awards may be made prior to such shareholder approval provided that such
Awards are conditioned upon such approval and state by their terms that they
will be null and void if such shareholder approval is not obtained.
Ex. 99 - 3
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4.3 Termination of the Plan. This Plan will terminate ten years from the
Effective Date. In addition, the Board of Directors will have the right to
suspend or terminate this Plan at any time. Any termination of this Plan will
not affect the exercisability of any Incentive Stock Options or Non-Qualified
Stock Options granted prior to such termination. Termination of the Plan will
not terminate or otherwise affect any Incentive Option Agreement (as defined
in Section 6.1), Non-Qualified Option Agreement (as defined in Section 7.1) or
Restricted Stock Agreement (as defined in Section 9.1) then in effect.
ARTICLE V - Administration
Subject to the provisions of this Plan and any additional terms or
conditions which may, from time to time, be imposed by the Board of Directors,
the Committee will administer this Plan and will have the authority, in its
sole discretion, to grant Incentive Stock Options, grant Non-Qualified Stock
Options and make Restricted Stock Grants in accordance with Articles VI, VII
and IX, respectively. The Committee may, from time to time, adopt rules and
regulations relating to the administration of this Plan and may, but is not
required to, seek the advice of legal, tax, accounting and compensation
advisors. Decisions of the Committee with respect to the administration of
this Plan, the interpretation or construction of this Plan or the
interpretation or construction of any written agreement evidencing an Award
will be final and conclusive, subject only to review by the full Board of
Directors. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in this Plan or in any agreement evidencing an
Award in the manner and to the extent it deems appropriate.
The Board of Directors shall appoint the Committee, which shall consist
of at least two members of the Board of Directors. For purposes of this
paragraph, directors who are not "outside directors" as such term is defined
in Treasury Regulation sec. 1.162-27(e)(3) and directors who are not
"non-employee directors" as such term is defined in Rule 16b-3 issued by the
Securities and Exchange Commission under Section 16 of the Securities Exchange
Act of 1934, as amended, shall be referred to as "nonqualified directors."
Nonqualified directors may serve on the Committee. However, nonqualified
directors shall be deemed (notwithstanding any statement to the contrary which
may be contained in minutes of a meeting of the Committee) to have abstained
from any action requiring, under Section 162(m) of the Internal Revenue Code,
the approval of a committee consisting solely of outside directors, or from
any action requiring, under Rule 16b-3, the approval of a committee consisting
solely of non-employee directors. The assent of any such nonqualified director
shall be ignored for purposes of determining whether or not an such actions
were approved by the Committee. If the Committee proposes to take an action by
unanimous consent in lieu of a meeting and such action would require under
Section 162(m) the approval of a committee consisting solely of outside
directors or such action would require under Rule 16b-3 the approval of a
committee consisting solely of non-employee directors, the nonqualified
director shall, for purposes of such consent, be deemed to not be a member of
the Committee.
If no Committee is appointed, the Board of Directors shall act as the
Committee and will have all the powers, duties and responsibilities of the
Committee as set forth in this Plan. In addition, the Board of Directors may
at any time by resolution abolish the Committee and assume the duties and
responsibilities of the Committee.
ARTICLE VI - Incentive Stock Option Terms and Conditions
Incentive Stock Options will be subject to the following terms and
conditions.
6.1 Requirement for a Written Incentive Stock Option Agreement. Each
Incentive Stock Option will be evidenced by a written option agreement
("Incentive Option Agreement"). The Committee will determine from time to time
the form of Incentive Option Agreement to be used. The terms of the Incentive
Option Agreement must be consistent with this Plan and any inconsistencies
Ex. 99 - 4
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will be resolved in accordance with the terms and conditions specified in this
Plan. Except as otherwise required by this Section 6, the terms and conditions
of Incentive Stock Options do not need to be identical.
6.2 Who May be Granted an Incentive Stock Option. An Incentive Stock
Option may be granted to any Employee who, in the judgment of the Committee,
has performed or will perform services of importance to the Company in the
management, operation and development of the business of the Company or of one
or more of its subsidiaries. The Committee, in its sole discretion, shall
determine when and to which Employees Incentive Stock Options are granted.
6.3 Number of Shares Covered by an Incentive Stock Option. Each Incentive
Option Agreement shall specify the number of shares of Common Stock that may
be purchased upon exercise of the Incentive Stock Option, as determined by the
Committee in its sole discretion.
6.4 Vesting Schedule under an Incentive Stock Option. Each Incentive
Option Agreement shall specify when and to what extent the Incentive Stock
Option is exercisable, and may provide that the Incentive Stock Option is
immediately exercisable as to all of the shares of Common Stock covered by
such option or is only exercisable in accordance with a vesting schedule.
Notwithstanding any vesting schedule set forth in the Incentive Option
Agreement, an Incentive Stock Option shall, upon Retirement of the Optionee,
but subject to the limitations set forth in the following paragraph, become as
of the effective date of Retirement immediately exercisable as to all shares
covered by such Incentive Stock Option.
Notwithstanding the foregoing, to the extent that an Incentive Stock
Option (together with other incentive stock options within the meaning of
Section 422 of the Internal Revenue Code held by such Optionee with an equal
or lower exercise price per share) purports to become exercisable for the
first time during any calendar year as to shares of Common Stock with a Fair
Market Value (determined at the time of grant) in excess of $100,000, such
excess shares shall be considered to be covered by a Non-Qualified Stock
Option and not an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code. Any Incentive Stock Option that was not either
approved by (i) a committee of non-employee directors within the requirements
of Rule 16b-3 or (ii) the full board of directors of the Company, shall,
notwithstanding the acceleration of vesting upon Retirement of the Optionee
provided for in this Section 6.4, Section 10.2 hereof, or the terms set forth
in the Incentive Option Agreement, not be exercisable until at least six
months after the date of grant.
6.5 Exercise Price of an Incentive Stock Option. Each Incentive Option
Agreement shall specify the Exercise Price of the Incentive Stock Option. The
Exercise Price will be 100% of Fair Market Value as of the date on which the
Incentive Stock Option was granted. However, if the Optionee is a Significant
Shareholder, the Exercise Price will be 110% of Fair Market Value as of the
date on which the Incentive Stock Option was granted.
6.6 Duration of an Incentive Stock Option--Generally. Each Incentive
Option Agreement shall set forth the term of the Incentive Stock Option
provided that such term will not exceed 10 years from the date on which such
option was granted. Notwithstanding the foregoing, if the Optionee is a
Significant Shareholder, the term will not exceed 5 years from the date on
which the Incentive Stock Option was granted. The Optionee shall have no
further right to exercise an Incentive Stock Option following the expiration
of such term.
6.7 The Effect of Termination of Employment on the Term of an Incentive
Stock Option. If an Optionee, while possessing an Incentive Stock Option that
has not expired or been fully exercised, ceases to be an Employee of the
Company for any reason other than as a result of the death or disability of
the Optionee (as provided for in Section 6.8 and 6.9, respectively), the
Incentive Stock Option may be exercised, to the extent not previously
exercised and subject to any vesting provisions of the Incentive Option
Ex. 99 - 5
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Agreement, at any time within three months following the date the Optionee
ceased to be an Employee of the Company, except that this provision will not
extend the time within which an Incentive Stock Option may be exercised beyond
the expiration of the term of such option. The Incentive Option Agreement may
provide that if the Optionee's employment is terminated by the Company for
cause, as determined by the Company's President or Board of Directors in their
reasonable discretion, the Incentive Stock Option will terminate immediately
upon the Company's notice to the Optionee of such termination.
6.8 The Effect of the Death of an Optionee on the Term of an Incentive
Stock Option. If an Optionee, while possessing an Incentive Stock Option that
has not expired or been fully exercised, ceases to be an Employee of the
Company as a result of the death of the Optionee, the Incentive Stock Option
may be exercised, to the extent not previously exercised and subject to any
vesting provisions of the Incentive Option Agreement, at any time within 12
months following the date of the Optionee's death, except that this provision
will not extend the time within which an Incentive Stock Option may be
exercised beyond the expiration of the term of such option.
6.9 The Effect of the Disability of an Optionee on the Term of an
Incentive Stock Option. If an Optionee, while possessing an Incentive Stock
Option that has not expired or been fully exercised, ceases to be an Employee
of the Company as a result of the Optionee becoming Disabled, the Incentive
Stock Option may be exercised, to the extent not previously exercised and
subject to any vesting provisions of the Incentive Option Agreement, at any
time within 12 months following the date of the Optionee becoming Disabled,
except that this provision will not extend the time within which an Incentive
Stock Option may be exercised beyond the expiration of the term of such
option.
6.10 Transferability. No Incentive Stock Option may be transferred by the
Optionee other than by will or the laws of descent and distribution upon the
death of the Optionee.
6.11 Tax Treatment and Savings Clause. Nothing contained in this Plan,
any Incentive Option Agreement, any document provided by the Company to an
Optionee, or any statement made by or on behalf of the Company, shall
constitute a representation or warranty of the tax treatment of any option or
that such option shall qualify as an incentive stock option under Section 422
of the Internal Revenue Code. Any option that is designated as an Incentive
Stock Option but which, either in whole or in part, fails for any reason to
qualify as an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code, or which fails to satisfy requirements which apply only
to Incentive Stock Options, shall be treated as an incentive stock option to
the fullest extent permitted under Section 422 of the Internal Revenue Code
and this Plan and shall otherwise, notwithstanding such designation, be
treated as a Non-Qualified Stock Option.
ARTICLE VII - Nonqualified Stock Option Terms And Conditions
Non-Qualified Stock Options shall be subject to the following terms and
conditions.
7.1 Requirement for a Written Non-Qualified Stock Option Agreement. Each
Non-Qualified Stock Option will be evidenced by a written option agreement
("Non-Qualified Option Agreement"). The Committee will determine from time to
time the form of Non-Qualified Option Agreement to be used. The terms of the
Non-Qualified Option Agreement must be consistent with this Plan and any
inconsistencies will be resolved in accordance with the terms and conditions
specified in this Plan. Except as otherwise required by this Section 7, the
terms and conditions of Non-Qualified Stock Options do not need to be
identical.
7.2 Who May be Granted an Non-Qualified Stock Option. A Non-Qualified
Stock Option may be granted to any Employee, any director of the Company and
Ex. 99 - 6
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any other individual who, in the judgment of the Committee, has performed or
will perform services of importance to the Company in the management,
operation and development of the business of the Company or of one or more of
its subsidiaries. The Committee, in its sole discretion, shall determine when
and to whom Non-Qualified Stock Options are granted.
7.3 Number of Shares Covered by a Non-Qualified Stock Option. Each
Non-Qualified Option Agreement shall specify the number of shares of Common
Stock that may be purchased upon exercise of the Non-Qualified Stock Option,
as determined by the Committee in its sole discretion.
7.4 Vesting Schedule Under a Non-Qualified Stock Option. Each
Non-Qualified Option Agreement shall specify when and to what extent the
Non-Qualified Stock Option is exercisable, and may provide that the
Non-Qualified Stock Option is immediately exercisable as to all of the shares
of Common Stock covered by such option or is only exercisable in accordance
with a vesting schedule. Notwithstanding any vesting schedule set forth in the
Non-Qualified Option Agreement, upon Retirement of the Optionee, a
Non-Qualified Stock Option shall, subject to the following sentence of this
Section 7.4, become as of the effective date of Retirement immediately
exercisable as to all shares covered by such Non-Qualified Stock Option. Any
Non-Qualified Stock Option granted that was not either approved by (i) a
committee of non-employee directors within the requirements of Rule 16b-3 or
(ii) the full board of directors of the Company, shall, notwithstanding the
preceding sentence, Section 10.2 hereof, or the terms set forth in the
Non-Qualified Option Agreement not be exercisable until at least six months
after the date of such grant.
7.5 Exercise Price of a Non-Qualified Stock Option. The Exercise Price of
a Non-Qualified Stock Option will be 100% of Fair Market Value as of the date
on which the Non-Qualified Stock Option was granted. However, if it is
subsequently determined that the Exercise Price as stated in the Non-Qualified
Option Agreement is less than 100% of Fair Market Value as of the date the
option was granted, such fact will not invalidate a Non-Qualified Stock
Option.
7.6 Duration of a Non-Qualified Stock Option--Generally. Each
Non-Qualified Option Agreement shall set forth the term of the Non-Qualified
Stock Option, provided that such term will not exceed 10 years from the date
on which such option was granted. The Optionee shall have no further right to
exercise a Non-Qualified Stock Option following the expiration of such term.
7.7 The Effect of Termination of the Optionee's Employment or Service as
a Director on the Term of a Non-Qualified Stock Option. If an Optionee, while
possessing a Non-Qualified Stock Option that has not expired or been fully
exercised, ceases to be an Employee of the Company (or, in the case of an
Optionee who is not an Employee but is a director of the Company, ceases to be
a director of the Company) for any reason other than as a result of the death
or disability of the Optionee (as provided for in Section 7.8 and 7.9,
respectively), the Non-Qualified Stock Option may be exercised, to the extent
not previously exercised and subject to any vesting provisions of the
Non-Qualified Option Agreement, at any time within three months following the
date the Optionee ceased to be an Employee (or a director as the case may be)
of the Company, except that this provision will not extend the time within
which an Non-Qualified Stock Option may be exercised beyond the expiration of
the term of such option. The Non-Qualified Option Agreement may provide that
if the Optionee's employment is terminated by the Company for cause, as
determined by the Company's President or Board of Directors in their
reasonable discretion, the Non-Qualified Stock Option will terminate
immediately upon the Company's notice to the Optionee of such termination.
7.8 The Effect of the Death of an Optionee on the Term of a Non-Qualified
Stock Option. If an Optionee, while possessing a Non-Qualified Stock Option
that has not expired or been fully exercised, ceases to be an Employee, ceases
to serve as a director of the Company or ceases to provide services to the
Ex. 99 - 7
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Company as a result of the Optionee's death, the Non-Qualified Stock Option
may be exercised, to the extent not previously exercised and subject to any
vesting provisions of the Non-Qualified Option Agreement, at any time within
12 months following the date of the Optionee's death, except that this
provision will not extend the time within which a Non-Qualified Stock Option
may be exercised beyond the expiration of the term of such option.
7.9 The Effect of the Disability of an Optionee on the Term of a
Non-Qualified Stock Option. If an Optionee, while possessing a Non-Qualified
Stock Option that has not expired or been fully exercised, ceases to be an
Employee, ceases to serve as a director of the Company or ceases to provide
services to the Company as a result of the Optionee becoming Disabled, the
Non-Qualified Stock Option may be exercised, to the extent not previously
exercised and subject to any vesting provisions of the Non-Qualified Option
Agreement, at any time within 12 months following the date of the Optionee
becoming Disabled, except that this provision will not extend the time within
which a Non-Qualified Stock Option may be exercised beyond the expiration of
the term of such option.
7.10 Transferability. The Non-Qualified Option Agreement may permit a
transfer of the Non-Qualified Stock Option by gift to the Optionee's spouse,
children or a trust for the exclusive benefit of any combination of the
Optionee, the Optionee's spouse and the Optionee's children, if such transfer
is conditioned upon the Optionee and the transferee of such Non-Qualified
Stock Option executing and delivering to the Company a form of
Transfer/Assumption of Non-Qualified Option Agreement as the Company may
request. Notwithstanding any transfer of a Non-Qualified Stock Option, the
Optionee shall remain liable to the Company for any income tax withholding
amounts which the Company is required to withhold at the time that the
transferred Non-Qualified Stock Option is exercised. If the Non-Qualified
Option Agreement does not expressly permit transfer of the Non-Qualified Stock
Option, the Non-Qualified Stock Option may not be transferred by the Optionee,
other than by will or the laws of descent and distribution upon the death of
the Optionee, without the prior written consent of the Committee, which
consent may be withheld in the Committee's sole discretion.
ARTICLE VIII - Exercise of Options
8.1 Notice of Exercise. An Incentive Stock Option or Non-Qualified Stock
Option may only be exercised by delivery to the Company of written notice
signed by the Optionee (or, in the case of exercise after death of the
Optionee, by the executor, administrator, heir or legatee of the Optionee, as
the case may be) directed to the President of the Company (or such other
person as the Company may designate) at the principal business office of the
Company. The notice will specify (i) the number of shares of Common Stock
being purchased, (ii) the method of payment of the Exercise Price, (iii) the
method of payment of the Tax Withholding if the option is a Non-Qualified
Stock Option, and (iv), unless a registration under the Securities Act is in
effect with respect to the Plan at the time of such exercise, the notice of
exercise shall contain such representations as the Company determines to be
necessary or appropriate in order for the sale of shares of Common Stock being
purchased pursuant to such exercise to qualify for exemptions from
registration under the Securities Act.
8.2 Payment of Exercise Price. No shares of Common Stock will be issued
upon the exercise of any Incentive Stock Option or Non-Qualified Stock Option
unless and until payment or adequate provision for payment of the Exercise
Price of such shares has been made in accordance with this subsection. Unless
the Committee, in its sole discretion, determines otherwise, payment of the
Exercise Price shall be in cash, by delivery of a full-recourse promissory
note, by the surrender of other securities issued by the Company (provided
that such other securities have been held by the Optionee for at least six
months prior to the date on which the Option is being exercised) in accordance
with Section 8.4,or by any combination of the foregoing. The Committee may, in
its sole discretion, permit an Optionee to elect to pay the Exercise Price by
authorizing a duly registered and licensed broker-dealer to sell the shares of
Common Stock to be issued upon such exercise (or, at least, a sufficient
portion thereof) and instructing such broker-dealer to immediately remit to
the Company a sufficient portion of the proceeds from such sale to pay the
entire Exercise Price.
Ex. 99 - 8
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8.3 Payment of Tax Withholding Amounts. Unless the Committee, in its sole
discretion, determines otherwise, each Optionee must, upon the exercise of a
Non-Qualified Stock Option (including Non-Qualified Stock Options transferred
by the Optionee), either with the delivery of the notice of exercise or upon
notification of the amount due, pay to the Company or make adequate provision
for the payment of all amounts determined by the Company to be required to
satisfy applicable federal, state and local tax withholding requirements ("Tax
Withholding"). The Non-Qualified Option Agreement may provide for, or the
Committee may allow in its sole discretion, the payment by the Optionee of the
Tax Withholding in cash, by the Company withholding such amount from other
amounts payable by the Company to the Optionee, including salary, by surrender
of other securities of the Company in accordance with Section 8.4, by the
application of shares that could be received upon exercise of the
Non-Qualified Stock Option, or any combination of the foregoing. This
application of shares shall be accomplished by crediting toward the Optionee's
Tax Withholding obligation the difference between the Fair Market Value and
the Exercise Price of the shares being so applied. Any such application shall
be considered an exercise of the Non-Qualified Stock Option to the extent
shares are so applied, and, as such, may add to the Optionee's withholding
obligation.
By receiving and exercising a Non-Qualified Stock Option, the Optionee
shall be deemed to have consented to the Company withholding the amount of any
Tax Withholding from any amounts payable by the Company to the Optionee. The
Committee may, in its sole discretion, permit an Optionee to elect to pay the
Tax Withholding by authorizing a duly registered and licensed broker-dealer to
sell the shares to be issued upon such exercise (or, at least, a sufficient
portion thereof) and instructing such broker-dealer to immediately remit to
the Company a sufficient portion of the proceeds from such sale to pay the Tax
Withholding. No shares will be issued upon an exercise of a Non-Qualified
Stock Option unless and until payment or adequate provision for payment of the
Tax Withholding has been made. If the Company determines that additional
withholding is or becomes required beyond any amount paid or provided for by
the Optionee, the Optionee will pay such additional amount to the Company
immediately upon demand by the Company. If the Optionee fails to pay the
amount demanded, the Company may withhold that amount from other amounts
payable by the Company to the Optionee, including salary.
8.4 Payment of Exercise Price or Withholding with Other Securities. To
the extent permitted in Section 8.2 and Section 8.3 above, the Exercise Price
and Tax Withholding may be paid by the surrender of other securities of the
Company. The notice of exercise shall indicate that payment is being made by
the surrender of other securities of the Company. Payment shall be made by
either (i) delivering to the Company the certificates or instruments
representing such other securities, duly endorsed for transfer, or (ii)
delivering to the Company an attestation in such form as the Company may deem
to be appropriate with respect to the Optionee's ownership of other securities
of the Company. Other securities of the Company shall, for purposes of this
Section 8, be valued at the publicly reported price, if any, for the last sale
on the last business day preceding the day the Company receives the Optionee's
notice of exercise, or, if there are no publicly reported prices of such other
securities of the Company, at the fair market value of such other securities
as determined in good faith by the Board of Directors. To the extent permitted
in Section 8.3 above, Tax Withholding may, if the Optionee so notifies the
Company at the time of the notice of exercise, be paid by the application of
shares which could be received upon exercise of any other stock option issued
by the Company. This application of shares shall be accomplished by crediting
toward the Optionee's Tax Withholding obligation the difference between the
Fair Market Value and the Exercise Price of the stock option specified in the
Optionee's notice. Any such application shall be considered an exercise of the
other stock option to the extent that shares are so applied and, as such, may
add to the Optionee's withholding obligation.
8.5 Compliance with Securities Laws. No shares will be issued with
respect to the exercise of any Incentive Stock Option or Non-Qualified Stock
Option unless the exercise and the issuance of the shares will comply with all
relevant provisions of law, including, without limitation, the Securities Act,
any registration under the Securities Act in effect with respect to the Plan,
Ex. 99 - 9
<PAGE>
all applicable state securities laws, the Securities Exchange Act of 1934, as
amended, the Internal Revenue Code, the respective rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed, and will be further subject to the
approval of counsel for the Company with respect to such compliance. The
Company will not be liable to any Optionee or any other person for failure to
issue shares upon the exercise of an option where such failure is due to the
inability of the Company to obtain all permits, exemptions or approvals from
regulatory authorities which are deemed by the Company's counsel to be
necessary. The Board may require any action or agreement by an Optionee as may
from time to time be necessary to comply with the federal and state securities
laws. The Company will not be obliged to prepare, file or maintain a
registration under the Securities Act with respect to the Plan or to take any
actions with respect to registration under any state securities laws.
8.6 Issuance of Shares. Notwithstanding the good faith compliance by the
Optionee with all of the terms and conditions of an Incentive Option Agreement
or Non-Qualified Option Agreement and with this Article VIII, the Optionee
will not become a shareholder and will have no rights as a shareholder with
respect to the shares covered by such option until the issuance of shares
pursuant to the exercise of such option is recorded on the stock transfer
record of the Company. Notwithstanding the foregoing, the Company shall not
unreasonably delay the issuance of a stock certificate and shall exercise
reasonable efforts to cause such stock certificate to be issued to the
Optionee as soon as is practicable after the compliance by the Optionee with
all of the terms and conditions of the Incentive Option Agreement or
Non-Qualified Option Agreement, as the case may be, and with this Article
VIII.
8.7 Notice of any Disqualifying Disposition and Provision for Tax
Withholding. Any Optionee that exercises an Incentive Stock Option and then
makes a "disqualifying disposition" (as such term is defined under Section 422
of the Internal Revenue Code) of the shares so purchased, shall immediately
notify the Company in writing of such disqualifying disposition and shall pay
or make adequate provision for all Tax Withholding as if such Incentive Stock
Option was a Non-Qualified Stock Option in accordance with Section 8.3.
ARTICLE IX - Restricted Stock Grants
Restricted Stock Grants shall be subject to the following terms and
conditions:
9.1 Requirement for a Written Restricted Stock Agreement. Each Restricted
Stock Grant will be evidenced by a written Restricted Stock agreement
("Restricted Stock Agreement"). The Committee will determine from time to time
the form of Restricted Stock Agreement to be used. The terms of the Restricted
Stock Agreement must be consistent with this Plan and any inconsistencies will
be resolved in accordance with the terms and conditions specified in this
Plan. Except as otherwise required by this Section 9, the terms and conditions
of Restricted Stock Grants do not need to be identical.
9.2 Who May Receive a Restricted Stock Grant. A Restricted Stock Grant
may be made to any Employee, any director of the Company or any other
individual who provides services to the Company where, in the judgment of the
Committee, the services performed or to be performed by such Grantee are of
importance to the Company in the management, operation and development of the
business or businesses of the Company or one or more of its Subsidiaries. The
Committee, in its sole discretion, shall determine when and to whom Restricted
Stock Grants are made.
9.3 Number of Shares Covered by a Restricted Stock Grant. Each Restricted
Stock Agreement shall specify the number of shares covered by each Restricted
Stock Grant.
9.4 Consideration for a Restricted Stock Grant. The Committee, in its
sole discretion, will determine the consideration payable by a Grantee for the
shares covered by a Restricted Stock Grant. Consideration may consist of
services rendered by the Grantee to the Company, or payment, in cash or
Ex. 99 - 10
<PAGE>
delivery of a promissory note, for all or any portion of the Fair Market Value
of the shares covered by the Restricted Stock Grant, or any combination of the
foregoing.
9.5 Vesting Schedule under a Restricted Stock Grant. Each Restricted
Stock Agreement shall specify when and to what extent the shares covered by
the Restricted Stock Grant shall become vested in the Grantee, and may provide
that the shares become vested immediately or vest according to a schedule. The
Committee, in its sole discretion, shall determine the terms and conditions
upon which shares covered by any Restricted Stock Grant shall vest. The
Restricted Stock Agreement shall provide that the Company may repurchase at a
specified price any unvested shares. The unvested portion of a Restricted
Stock Grant may not be transferred by the Grantee under any circumstances
without the prior written consent of the Committee, which consent may be
withheld in its sole discretion.
ARTICLE X - Changes in Capital Structure
10.1 Adjustments of Number of Shares and Exercise Price. Except as
provided in Section 10.2, if the outstanding shares of Common Stock are
hereafter increased, decreased, changed into or exchanged for a different
number or kind of shares of Common Stock or for other securities of the
Company or of another corporation, by reason of any reorganization, merger,
consolidation, reclassification, stock split-up, combination of shares, or
dividend payable in shares of Common Stock, the Committee will make such
adjustment as it deems appropriate in the number and kind of shares of Common
Stock underlying subsequent Awards. In addition, the Committee will at such
time make such adjustment in the number and kind of shares of Common Stock
covered by outstanding Incentive Stock Options and outstanding Non-Qualified
Stock Options, as well as make an adjustment in the Exercise Price of each
such option as the Committee deems appropriate. Any determination by the
Committee as to what adjustments may be made, and the extent thereof, will be
final, binding on all parties and conclusive.
10.2 Acceleration of Vesting. In the event of any dissolution or
liquidation of the Company, or any merger or consolidation with one or more
corporations in which the Company is not the surviving entity, or in which the
security holders of the Company prior to such transaction do not receive in
the transaction securities with voting rights with respect to the election of
directors equal 50% or more of the votes of all classes of outstanding
securities of the surviving corporation immediately after such transaction,
each outstanding Incentive Stock Option and each outstanding Non-Qualified
Stock Option shall become immediately exercisable in its entirety,
notwithstanding any vesting schedule included in the respective Incentive
Option Agreement or Non-Qualified Option Agreement, but subject to Section 6.4
or Section 7.4, as applicable, fifteen (15) days prior to such event and
shall, unless the event fails to occur, continue to be exercisable in such
manner for forty-five (45) days after such event, unless, as an expressed term
of such transaction, adequate provision is made for the continuation of the
rights of holders of such outstanding option after the consummation of such
transaction.
ARTICLE XI - Underwriters Lock-Up
Each written agreement evidencing an Award will specify that the Optionee
or Grantee, by accepting the Award agrees that in the event the Company
undertakes a firmly underwritten public offering of its securities, the
Optionee or Grantee will, if requested to do so by the managing underwriter in
such offering, enter into an agreement not to sell or dispose of any
securities of the Company owned or controlled by the Optionee or Grantee
provided that such restriction will not extend beyond 12 months from the
effective date of the registration statement filed in connection with such
offering.
Ex. 99 - 11
<PAGE>
ARTICLE XII - Employment Rights
Nothing in this Plan nor in any written agreement evidencing an Award
will confer upon any Optionee or Grantee any right to employment by the
Company or to limit or affect in any way the right of the Company, in its sole
discretion, (a) to terminate the employment of such Optionee or Grantee at any
time, with or without cause, (b) to change the duties of such Optionee or
Grantee, or (c) to increase or decrease the compensation of the Optionee or
Grantee at any time. Unless the written agreement evidencing an Award
expressly provides otherwise, vesting under such agreement shall be
conditioned upon:
1) for Employees of the Company, the continued employment of the
Optionee or Grantee;
2) for independent contractors, the Optionee or Grantee continuing to
provide services to the Company on substantially the same terms and
conditions as such services were provided at the time of the Award;
or
3) for directors who are not Employees, the Optionee or Grantee
continuing to serve as a director of the Company;
and nothing in this Plan shall be construed as creating a contractual or
implied right or covenant by the Company to continue such employment, service
as an independent contractor or service as a director.
ARTICLE XIII - Amendment of Plan
The Board of Directors may, at any time and from time to time, modify or
amend this Plan as it deems advisable except that any amendment increasing the
number of shares of Common Stock issuable under the Plan, or any amendment
that expands the group of persons eligible to receive Awards, shall only
become effective if and when such amendment is approved by the shareholders of
the Company. Except as provided in Section 10 hereof, no amendment shall be
made to the terms or conditions of an outstanding Incentive Stock Option,
Non-Qualified Stock Option or Restricted Stock Grant without the written
consent of the Optionee or Grantee.
Effective as of approval by the Board of Directors of the Company at a meeting
held on February 24, 2000.
Approved by the shareholders of the Company on April 25, 2000.
Ex. 99 - 12
<PAGE>
Timberline Software Corporation
Employee Stock Option Agreement
THIS AGREEMENT, entered into as of the Agreement Date (as defined in
Paragraph 1), by and between the Participant and Timberline Software
Corporation (the "Company");
WITNESS:
WHEREAS the Company maintains the 2000 Stock Incentive Plan (the "Plan"),
which is incorporated into and forms a part of this Agreement, and the
Participant has been selected by the committee administering the Plan (the
"Committee") to receive a Non-Qualified Stock Option Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant,
as follows:
1. Terms of Award. The following terms used in this Agreement shall have
the meanings set forth in this Paragraph 1:
a. The "Participant" is .
b. The "Agreement Date" is .
c. The number of "Covered Shares" shall be shares of Stock.
d. The "Option Price" (exercise price) is $ per share.
Other terms used in this Agreement are defined in the Plan, Paragraph 10 of
this agreement or elsewhere in this Agreement.
2. Award and Exercise Price. The Participant is hereby granted an option
(the "Option") to purchase the number of Covered Shares of Stock at the Option
Price as set forth in Paragraph 1. The Option is not intended to constitute an
"incentive stock option" as that term is used in Internal Revenue Code section
422.
3. Date of Exercise. The Option shall become exercisable according to the
following schedule.
Ex. 99 - 13
<PAGE>
------------------------------------------------------------------------------
The Option shall become exercisable
As of the Following Anniversary with respect to the following
of the Agreement Date: percentage
of the Covered Shares:
------------------------------------------------------------------------------
One-year anniversary 25%
------------------------------------------------------------------------------
Two-year anniversary 25%
------------------------------------------------------------------------------
Three-year anniversary 25%
------------------------------------------------------------------------------
Four-year anniversary 25%
------------------------------------------------------------------------------
Notwithstanding the foregoing schedule, the Option shall not become
exercisable with respect to any portion of the Option that has not become
exercisable prior to the Participant's Date of Termination (as defined below)
except that if a Participant's Termination is due to Retirement as defined in
Paragraph 10(d), below, the Option will accelerate on termination and become
immediately exercisable as to all of the Covered Shares.
Exercisability under this schedule is cumulative, and after the Option becomes
exercisable under the schedule with respect to any portion of the Covered
Shares, it shall continue to be exercisable with respect to that portion of
the Covered Shares until the Option expires. Notwithstanding the foregoing
provisions of this Paragraph 3, the participant may elect to exercise the
Option at any time during the period beginning 15 days prior to an
Accelerating Event, and ending 45 days after such event, provided that such
exercise shall be deemed to occur immediately prior to the Accelerating Event
and shall be contingent upon the occurrence of such Accelerating Event.
4. Expiration. The Option shall not be exercisable on or after the
Expiration Date. The "Expiration Date" shall be the earliest to occur of:
a. the ten-year anniversary of the Agreement Date;
b. if the Participant's Date of Termination occurs by reason of
Disability or Death, the twelve-month anniversary of such Date
of Termination; or
c. if the Participant's Date of Termination occurs for reasons
other than death or Disability, the three-month anniversary of
such Date of Termination.
5. Method of Option Exercise. The Option may be exercised in whole or in
part by filing a written notice with the Secretary of the Company at its
corporate headquarters prior to the Expiration Date or pursuant to any other
method which the Committee has approved. Such notice shall specify the number
of shares of Stock which the Participant elects to purchase, and shall be
accompanied by payment of the Exercise Price for such shares of Stock
indicated by the Participant's election. Payment shall be by cash or by check
payable to the Company. Except as otherwise provided by the Committee before
the Option is exercised, the Participant may pay the Exercise Price by
authorizing a third party to sell the shares of Stock acquired upon exercise
of the Option and remit to the Company a sufficient portion of the sale
proceeds to pay the entire Exercise Price and any tax withholding resulting
from such exercise.
6. Fractional Shares. Any fractional shares concerning this Option may be
disregarded or provided for in any manner determined in the sole discretion of
the Committee.
Ex. 99 - 14
<PAGE>
7. Tax Withholding. The issuance of shares pursuant to exercise of this
Option is subject to withholding of all applicable taxes. With the consent of
the Committee, such withholding obligations may be satisfied through the
surrender of shares to which the Participant is otherwise entitled under the
Plan. If Participant fails to pay any amounts demanded by the Company to
satisfy any withholding obligation arising out of exercise of the Option, the
Company may withhold such amounts from other amounts or property payable to
Participant by the Company.
8. Transferability. The Option is not transferable other than as
designated by the Participant by will or by the laws of descent and
distribution; provided, however, that with the consent of the Committee,
Options may be assigned or transferred pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act, as amended ("ERISA"), or the rules thereunder. Each
option granted under the Plan by its terms shall be exercisable during the
Participant's life only by the Participant, or his or her permitted assignee
or transferee pursuant to such a qualified domestic relations order.
9. Changes in Capital Structure. If the outstanding shares of Common
Stock of the Company are hereafter increased or decreased or 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 reason detailed in
Paragraph 11 of the Plan, the Committee shall make appropriate adjustments.
10. Definitions. For purposes of this Agreement, the terms listed below
shall be defined as follows:
a. Accelerating Event. The term "Accelerating Event" means the
occurrence of any merger, consolidation, reorganization, or plan of
exchange or liquidation involving the Company, as the result of which the
shareholders of the Company receive cash, stock or other such property in
exchange for or in connection with their common stock unless adequate
provision for the continuation of the Participant's rights under this
Option is made by the Board of Directors, in its reasonable discretion,
or by any successor in interest to the Company.
b. Date of Termination. The Participant's "Date of Termination"
shall be the first day occurring on or after the Agreement Date on which
the Participant's employment with the Company terminates for any reason;
provided that a Participant's employment shall not be considered
terminated while the Participant is on a leave of absence from the
Company as approved by the Company.
c. Disability. Except as otherwise provided by the Committee, the
Participant shall be considered to have a "Disability" during the period
in which the Participant is disabled within the meaning of Internal
Revenue Code Section 22(e)(3).
d. Retirement. "Retirement" shall mean with respect to any employee
with 15 or more years of service with the Company, retirement or other
termination of service from the company at age 65 or later. The age of 65
may be reduced by the number of whole years of service exceeding 15 years
(e.g., an employee with 20 years of service may have the benefit for
Retirement under the Plan at age 60).
Ex. 99 - 15
<PAGE>
11. Heirs and Successors. This Agreement shall be binding upon, and inure
to the benefit of, the Company and its successors and assigns. In the event of
the Participant's death prior to exercise of this Award, the Award may be
exercised by the estate of the Participant to the extent such exercise is
otherwise permitted by the Agreement. Subject to the terms of the Plan, any
benefits distributable to the Participant under this Agreement that are not
paid at the time of the Participant's death shall be paid at the time and in
the form determined in accordance with the provisions of this Agreement and
the Plan, to the beneficiary designated by the Participant in writing filed
with the Committee in such form and at such time as the Committee shall
require. If a deceased Participant fails to designate a beneficiary, or if the
designated beneficiary of the deceased Participant dies before the Participant
or before complete payment of the amounts distributable under this Agreement,
the amounts to be paid under this Agreement shall be paid to the legal
representative or representatives of the estate of the last to die of the
Participant and the beneficiary.
12. Plan Definitions. Notwithstanding anything in this Agreement to the
contrary, the terms and construction of this Agreement shall be subject to the
terms of the Plan, a copy of which may be obtained by the Participant from the
office of the Secretary of the Company and in the event of any inconsistency
between this Agreement and the Plan, the terms of the Plan shall govern.
13. Amendment. This Agreement may be amended by written Agreement of the
Participant and the Company, without the consent of any other person.
14. Governing Law. The laws of the State of Oregon shall govern all
matters relating to this Agreement.
15. Regulatory Compliance. No stock shall be issued under this Agreement
until the Company has taken all necessary steps to assure compliance with
federal and state securities laws or has determined to its satisfaction and
the satisfaction of its counsel that an exemption from the requirements of the
federal and applicable state securities laws are available.
IN WITNESS WHEREOF, the Participant has executed this Agreement and the
Company has caused these presents to be executed in its name and on its
behalf, all as of the Agreement Date.
Participant
-------------------------------------
TIMBERLINE SOFTWARE CORPORATION
By:
---------------------------------
Its:
---------------------------------
