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EXHIBIT 10.1
2000 NON-QUALIFIED STOCK
OPTION PLAN OF MANUGISTICS GROUP, INC.
1. PURPOSE.
The purposes of the 2000 Non-Qualified Stock Option Plan (the
"Plan") of Manugistics Group, Inc. (the "Company") are to advance the interests
of the Company and its shareholders by strengthening the ability of the Company
to attract, retain and reward highly qualified officers and other employees, to
motivate officers and other selected employees to achieve business objectives
established to promote the long-term growth, profitability and success of the
Company, and to encourage ownership of the Common Stock of the Company by
participating officers and other selected employees. The Plan authorizes
non-qualified stock options only. In addition, the Plan is intended as an
additional incentive to directors of the Company who are not employees of the
Company or an Affiliate to serve on the Board of Directors and devote themselves
to the future success of the Company by providing them with an opportunity to
acquire or increase their proprietary interest in the Company through the
receipt of options to acquire Common Stock. The Plan is also intended as an
additional incentive to selected consultants to the Company to devote themselves
to the success of the Company by providing them with similar benefits.
2. DEFINITIONS.
"Board of Directors" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, or any successor statute thereto, together with the
published rulings, regulations and interpretations duly promulgated thereunder.
"Committee" means the committee of the Board of Directors
established and constituted as provided in Section 5 of the Plan.
"Common Stock" means the common stock, $.002 par value of the
Company, or any security issued by the Company in substitution or exchange
therefor or in lieu thereof.
"Company" means Manugistics Group, Inc., a Delaware corporation,
or any successor corporation.
"Employee" means any employee, including any officer of the
Company, who is on the active payroll of the Company or a Subsidiary at the
relevant time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended
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and in effect time to time, including all rules and regulations promulgated
thereunder.
"Fair Market Value" means in respect of any date on or as of which
a determination thereof is being or to be made, the average of the high and low
per share sale prices of the Common Stock for the immediately preceding trading
day reported on the NASDAQ System, or other established stock exchange on which
the Common Stock is then traded.
"Non-Qualified Stock Option" means any option to purchase shares
of Common Stock granted pursuant to the provisions of Section 6 of the Plan.
"Participant" means any Employee, non-employee director of, or
consultant to, the Company or a Subsidiary who receives a Stock Option under the
Plan.
"Plan" means this 2000 Non-Qualified Stock Option Plan of the
Company, as set forth herein and as hereafter amended from time to time in
accordance with the terms hereof.
"Stock Option" means and includes any Non-Qualified Stock Option
granted pursuant to Section 6 of the Plan.
"Subsidiary" means the definition set forth in Section 424(f) of
the Code.
3. EFFECTIVE DATE; TERM.
(a) EFFECTIVE DATE. The Plan shall be effective on September 13,
2000, the date of adoption of the Plan by the Board of Directors of the Company.
(b) TERM. The Plan shall remain in effect until September 13, 2010
unless sooner terminated by the Board of Directors. Termination of the Plan
shall not affect grants then outstanding.
4. SHARES OF COMMON STOCK SUBJECT TO PLAN.
(a) MAXIMUM NUMBER OF SHARES AVAILABLE FOR ISSUANCE UNDER THE
PLAN. The maximum aggregate number of shares of Common Stock which may be issued
pursuant to the Plan, subject to adjustment as provided in Section 4(b) of the
Plan, shall be two million (2,000,000), plus any shares of Common Stock issued
under the Plan that are forfeited back to the Company or are canceled pursuant
to the terms of any option grant agreement. The shares of Common Stock which may
be issued under the Plan may be authorized and unissued shares or issued shares
which have been reacquired by the Company. No fractional shares of the Common
Stock shall be issued under the Plan.
(b) ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE. In the event
of any change in the capital structure, capitalization or Common Stock of the
Company such as a stock dividend, stock split, recapitalization, merger,
consolidation, split-up,
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combination or exchange of shares or other form of reorganization, or any other
change affecting the Common Stock, unless the Board of Directors in its
discretion determines otherwise, a proportionate adjustment to reflect such
change shall be made with respect to: (i) the maximum number of shares of Common
Stock which may be issued pursuant to the Plan; (ii) the number of shares of
Common Stock subject to any outstanding Stock Option made to any Participant
under the Plan; (iii) the per share exercise price in respect of any outstanding
Stock Options; (iv) the number of shares of Common Stock which are the subject
of grants then outstanding under the Plan; and (v) any other term or condition
of any grant affected by any such change, subject to the provisions of Section
8(a) below.
5. ADMINISTRATION.
(a) THE COMMITTEE. The Plan shall be administered by the
Committee to be appointed from time to time by the Board of Directors and
comprised of not less than two of the then members of the Board of Directors,
each of whom is a "Non-Employee Director" within the meaning of Rule 16(b)-3
under the Exchange Act (or has similar status under any successor provision) and
as "outside directors" within the meaning of Section 162(m) of the Code. Members
of the Committee shall serve at the pleasure of the Board of Directors. The
Board of Directors may from time to time remove members from, or add members to
the Committee. A majority of the members of the Committee shall constitute a
quorum for the transaction of business and the acts of a majority of the members
present at any meeting at which a quorum is present shall be the acts of the
Committee. Any one or more members of the Committee may participate in a meeting
by conference telephone or similar means where all persons participating in the
meeting can hear and speak to each other, which participation shall constitute
presence in person at such meeting. Action approved in writing by a majority of
the members of the Committee then serving shall be fully as effective as if the
action had been taken by unanimous vote at a meeting duly called and held. The
Company shall issue Stock Options under the Plan in accordance with the terms
and conditions specified by the Committee, which terms and conditions shall be
set forth in grant agreements and/or other instruments in such forms as the
Committee shall approve.
(b) COMMITTEE POWERS. The Committee shall have full power and
authority to operate and administer the Plan in accordance with its terms. The
powers of the Committee include, but are not limited to, the power to: (i)
select Participants from among the Employees and non-employee Directors of the
Company and Subsidiaries; (ii) establish the types of, and the terms and
conditions of, all grants of Stock Options made under the Plan, subject to any
applicable limitations set forth in, and consistent with the express terms of
the Plan; (iii) make grants of Stock Options subject to and consistent with the
express provisions of the Plan; (iv) prescribe the form or forms of grant
agreements and other instruments evidencing grants under the Plan; (v) construe
and interpret the Plan and make any determination of fact incident to the
operation of the Plan; (vi) promulgate, amend and rescind rules and regulations
relating to the implementation, operation and administration of the Plan; (vii)
adopt such modifications, procedures and subplans as may be necessary or
appropriate to comply with the laws of other countries with respect to
Participants or prospective Participants employed in such
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other countries; (viii) modify the terms of outstanding Stock Options, except
that, without the consent of the optionee, no such modification may impair the
rights granted under any such Stock Option; (ix) delegate to other persons the
responsibility for performing administrative or ministerial acts in furtherance
of the Plan; (x) engage the services of persons and firms, including banks and
consultants, in furtherance of the Plan's activities; and (xi) make all other
determinations and take all other actions as the Committee may deem necessary or
advisable for the administration and operation of the Plan.
(c) COMMITTEE'S DECISIONS FINAL. Any determination, decision or
action of the Committee in connection with the construction, interpretation,
administration or application of the Plan, and of any grant agreement, shall be
final, conclusive and binding upon all Participants, and all persons claiming
through Participants, affected thereby.
(d) INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such
other rights of indemnification as they may have as members of the Board or the
Committee, the members of the Committee shall be indemnified by the Company
against all costs and expenses reasonably incurred by them in connection with
any action, suit or proceeding to which they or any of them may be party by
reason of any action taken or failure to act under or in connection with the
Plan or any Stock Option granted under the Plan, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding; provided, however, that any
such Committee member shall be entitled to the indemnification rights set forth
in this Section 5(d) only if such member has acted in good faith and in a manner
that such member reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe that such conduct was unlawful, and further
provided that upon the institution of any such action, suit or proceeding a
Committee member shall give the Company written notice thereof and an
opportunity to handle and defend the same before such Committee member
undertakes to handle and defend it on his own behalf.
6. STOCK OPTIONS.
(a) IN GENERAL. Options to purchase shares of Common Stock may
be granted under the Plan and shall be Non-Qualified Stock Options. All Stock
Options shall be subject to the terms and conditions of this Section 6 and shall
contain such additional terms and conditions, not inconsistent with the express
provisions of the Plan, as the Committee shall determine.
(b) ELIGIBILITY AND LIMITATIONS. Any officer of the Company and
any other Employee of the Company or a Subsidiary may be granted Stock Options.
The Committee shall determine, in its discretion, the Employees to whom Stock
Options will be granted, the timing of such grants, and the number of shares of
Common Stock subject to each Stock Option granted; provided, that the maximum
number of shares of Common Stock in respect of which Stock Options may be
granted to any Employee during any calendar year shall be 250,000.
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(c) OPTION EXERCISE PRICE. The per share exercise price of each
Stock Option granted under the Plan shall be determined by the Committee prior
to or at the time of grant, but in no event shall the per share exercise price
of any Stock Option be less than 100% of the Fair Market Value of the Common
Stock on the date of the grant of such Stock Option, unless otherwise required
by law.
(d) OPTION TERM. The term of each Stock Option shall be fixed
by the Committee; except that in no event shall the term of any Stock Option
exceed ten years after the date such Stock Option is granted.
(e) EXERCISABILITY. A Stock Option shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Committee at the date of grant. No Stock Option may be exercised unless the
holder thereof is at the time of such exercise an Employee and has been
continuously an Employee since the date such Stock Option was granted, except
that the Committee may permit the exercise of any Stock Option for any period
following the Participant's termination of employment not in excess of the
original term of the Stock Option on such terms and conditions as it shall deem
appropriate, including, if the Committee so determines, the continuation of any
vesting requirements during the time such holder serves as a consultant or
director to the Company or any Subsidiary. In the case of any option subject to
any vesting requirements, the Committee may provide for the acceleration of the
time at which such option may be exercised. Notwithstanding anything to the
contrary in this Plan or in any Stock Option, if an Employee is terminated
involuntarily without cause within one year after a consolidation or merger in
which the Company is not the surviving corporation, all unexpired Stock Options
held by such Employee shall be exercisable for a period of ninety (90) days
after such termination, but in no event after the original expiration date set
forth in the applicable Stock Option.
(f) METHOD OF EXERCISE. A Stock Option may be exercised, in
whole or in part as to a minimum of 50 shares or, if fewer, the total number of
shares subject to the Stock Option, by giving written notice of exercise to the
Company specifying the number of shares of Common Stock to be purchased. Such
notice shall be accompanied by payment in full of the purchase price, plus any
required withholding taxes, in cash or, if permitted by the terms of the related
grant agreement or otherwise approved in advance by the Committee, in shares of
Common Stock already owned by the Participant valued at the Fair Market Value of
the Common Stock on the date of exercise. The Committee may also permit
Participants, either on a selective or aggregate basis, to simultaneously
exercise Stock Options and sell the shares of Common Stock thereby acquired
pursuant to a brokerage or similar arrangement approved in advance by the
Committee and to use the proceeds from such sale to pay the exercise price and
withholding taxes.
(g) STOCK OPTIONS TO NON-EMPLOYEE DIRECTORS.
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(i) Unless such director receives an equivalent option
under any other stock option plan maintained by the Company, on
the date of an Annual Meeting of the Shareholders, each director
who is not an employee of the Company shall receive a
Non-Qualified Stock Option to purchase shares of the Common Stock
at a price per share as determined in Section 6(c) above in the
following amounts: 16,000 shares after the first Annual Meeting at
which a director is initially elected to the Board and 16,000
shares at each Annual Meeting thereafter, so long as the director
remains a member of the Board. Any director who is elected to the
Board at any time other than an Annual Meeting will receive a
percentage of the annual grant on the date of his or her election
based on the number of fiscal quarters ending from the date of the
appointment or election until the next Annual Meeting of
Shareholders. Each Non-Qualified Stock Option received by a
director pursuant to this Section 6(g)(i) shall vest quarterly
over a four year period and therefore become exercisable in 16
equal installments each calendar quarter from the date the
Non-Qualified Stock Option is granted. Any director leaving the
Board prior to the quarterly vesting date of a Non-Qualified Stock
Option grant shall forfeit the unvested portion of any such
Non-Qualified Stock Option grant, unless the exception contained
in Section 6(g)(iv) applies.
(ii) In addition to the Non-Qualified Stock Option pursuant
to Section 6(g)(i) above, any director who is newly elected or
appointed to the Board will receive an additional Non-Qualified
Stock Option, at the sole discretion of the Board, to purchase up
to 16,000 shares of the Common Stock at a price per share as
determined in Section 6(c) above. Each Non-Qualified Stock Option
received by a director pursuant to this Section 6(g)(ii) shall
vest and become exercisable with respect to 25% of the shares
subject to the additional Non-Qualified Stock Option one calendar
year from the date the additional Non-Qualified Stock Option is
granted. The remaining 75% of the shares subject to the additional
Non-Qualified Stock Option shall vest and become exercisable in
equal installments quarterly over the following 12 calendar
quarters. Any director leaving the Board prior to the annual or
quarterly vesting date of an additional Non-Qualified Stock Option
grant shall forfeit the unvested portion of any such additional
Non-Qualified Stock Option grant, unless the exception contained
in Section 6(g)(iv) applies.
(iii) If the director's term in office is terminated by the
death of the director, the executor or administrator of the
director's estate shall have the right to exercise with respect to
all or any part of the number of shares which were vested on the
date of death, within one year of the date of the death of the
director.
(iv) Any director asked to resign from the Board, except
for Cause (defined below), or not nominated for election to an
additional term on the Board, except for Cause (defined below),
shall retain the unvested portion of his or her Non-Qualified
Stock Option grants, subject to their original
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vesting schedule. Cause shall be defined as a good faith
determination by the Board that the director, in or related to the
performance of his or her duties, has not acted in good faith and
in a manner to be in or not opposed to the best interests of the
Company.
Notwithstanding anything contained herein to the contrary,
no Non-Qualified Stock Option shall be exercisable following ten
(10) years from the date the Non-Qualified Stock Option is
granted.
(h) STOCK OPTIONS TO CONSULTANTS. The Committee may grant
Non-Qualified Stock Options to consultants to the Company on such terms and
conditions as are determined by the Committee, generally similar to those set
forth above in Sections 6(a) through 6(f), except that any restrictions required
to be set forth only in Stock Options to Employees need not be set forth in
Stock Options to consultants
(i) Notwithstanding anything herein to the contrary, in no
event shall options be issued to directors and officers of the Company in an
amount in any twelve-month period that would cause the Plan to fail to be
"broadly-based" under Nasdaq requirements.
7. NON-TRANSFERABILITY OF GRANTS.
No grant under the Plan, and no right or interest therein, shall
be (a) assignable, alienable or transferable by a Participant, except by will or
the laws of descent and distribution, or (b) subject to any obligation, or the
lien or claims of any creditor, of any Participant, or (c) subject to any lien,
encumbrance or claim of any party made in respect of or through any Participant,
however arising. During the lifetime of a Participant, Stock Options are
exercisable only by, and shares of Common Stock issued upon the exercise of
Stock Options will be issued only to the Participant or his or her legal
representative. The Committee may, in its sole discretion, authorize written
designations of beneficiaries and authorize Participants to designate
beneficiaries with the authority to exercise Stock Options granted to a
Participant in the event of his or her death or disability. Notwithstanding the
foregoing, the Committee may, in its sole discretion and on and subject to such
terms and conditions as it shall deem appropriate, which terms and conditions
shall be set forth in the related grant agreement: (i) authorize a Participant
to transfer all or a portion of any Non-Qualified Stock Option granted to such
Participant; provided, that in no event shall any transfer be made to any person
or persons other than such Participant's parents, spouse or other life partner,
children or grandchildren, siblings, or children of siblings, or a trust for the
exclusive benefit of one or more such persons, which transfer must be made as a
gift and without any consideration; and (ii) provide for the transferability of
a particular grant pursuant to a qualified domestic relations order. All other
transfers and any retransfer by any permitted transferee are prohibited and any
such purported transfer shall be null and void. Each Stock Option which becomes
the subject of a permitted transfer (and the Participant to whom it was granted
by the Company) shall continue to be subject to the same terms and conditions as
were in effect immediately prior to such permitted transfer. The Participant
shall remain responsible to the Company for the payment of all withholding taxes
incurred as a result of any exercise of such Stock Option. In no event shall any
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permitted transfer of a Stock Option create any right in any party in respect of
any Stock Option, other than the rights of the qualified transferee in respect
of such Stock Option specified in the related grant agreement.
8. CHANGE IN CONTROL.
Subject to any required action by the shareholders of the Company,
if the Company shall be the surviving corporation in any merger or
consolidation, each outstanding Stock Option shall pertain to and apply to the
securities to which a holder of the number of shares of Common Stock subject to
the Stock Option would have been entitled. A dissolution or liquidation of the
Company or a merger or consolidation in which the Company is not the surviving
corporation, shall cause each outstanding Stock Option to terminate, provided
that each optionee shall, in such event, have the right immediately prior to
such dissolution or liquidation, or merger or consolidation in which the
Corporation is not the surviving corporation, to exercise his or her Stock
Option in whole or in part without regard to any vesting requirements or
installment provisions set forth in his or her Stock Option grant agreement.
Notwithstanding the above provisions, a Stock Option will not terminate
if assumed by the surviving or acquiring corporation, or its parent, upon a
merger or consolidation under circumstances which are not deemed a modification
of the Stock Option within the meaning of Sections 424 and 424(3)(A) of the
Internal Revenue Code.
9. AMENDMENT OF PLAN.
The Board of Directors shall have the sole right and power to
amend or terminate the Plan at any time and from time to time; provided,
however, that the Board of Directors may not amend the Plan, without approval of
the shareholders of the Company, in a manner which would:
(a) cause the Plan or any transaction thereunder to fail to
meet the requirements of Rule 16(b)-3; or
(b) violate applicable law.
10. GENERAL PROVISIONS.
(a) All certificates for shares of Stock delivered under the
Plan shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange or
association upon which the Stock is then listed or traded, any applicable
Federal or state securities law, and any applicable corporate law.
(b) Nothing contained in the Plan shall prevent the Board of
Directors from adopting such other or additional incentive arrangements as it
may deem desirable,
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including, but not limited to, the granting of stock options and the awarding of
stock otherwise than under the Plan; and such arrangements may be either
generally applicable or applicable only in specific cases.
(c) Nothing contained in the Plan or in any grant hereunder
shall be deemed to confer upon any employee of the Company or any Subsidiary any
right to continued employment with the Company or any Subsidiary, nor shall it
interfere in any way with the right of the Company or any Subsidiary to
terminate or modify the employment of any of its employees at any time.
(d) The Plan and all grants made and actions taken thereunder
shall be governed by and construed in accordance with the laws of the State of
Delaware (without regard to choice of law provisions).
(e) Any Stock Option granted under the Plan shall not be deemed
compensation for purposes of computing benefits under any retirement plan of the
Company or any Subsidiary and shall not affect any benefits under any other
benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation (unless required by
specific reference in any such other plan to grants under this Plan).
(f) A leave of absence, unless otherwise determined by the
Committee prior to the commencement thereof, shall not be considered a
termination of employment. Any Stock Option granted under the Plan shall not be
affected by any change of employment, so long as the holder continues to be an
employee of the Company or any Subsidiary.
(g) The obligations of the Company with respect to all Stock
Options under the Plan shall be subject to (A) all applicable laws, rules and
regulations, and such approvals by any governmental agencies as may be required,
and (B) the rules and regulations of any securities exchange or association on
which the Common Stock may be listed or traded.
(h) If any of the terms or provisions of the Plan conflict with
the requirements of Rule 16(b)-3 as in effect from time to time, or with the
requirements of any other applicable law, rule or regulation, then such terms or
provisions shall be deemed inoperative to the extent they so conflict with the
requirements of said Rule 16(b)-3, law, rule or regulation.
(i) A Participant or a permitted transferee of an option shall
have no rights as a stockholder with respect to any shares covered by the
Participant's Stock Option until the date of the issuance of a stock certificate
to the Participant for such shares following the exercise of such Stock Option.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued, except as
provided in Section 4(b) hereof.
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(j) No provision of this Plan or any Stock Option shall be
construed to prevent the Company from taking any corporate action deemed by the
Company to be appropriate or in its best interest, whether or not such action
could have an adverse effect on the Plan or any Stock Options granted hereunder,
and no Stock Option holder or Stock Option holder's estate, personal
representative or beneficiary shall have any claim against the Company as a
result of taking such action. The adoption of the Plan shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company, nor shall the Plan preclude the Company from establishing any other
forms of incentive or other compensation for employees or directors of, or
consultants to, the Company.
