EXHIBIT 10.72
CHEYENNE SOFTWARE, INC.
1989 Incentive Stock Option Plan
Originally Adopted October 18, 1989
Adopted by the Board of Directors,
As Amended and Restated, on September 12, 1994
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1. Purpose of the Plan. This plan shall be known as the Cheyenne
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Software, Inc. 1989 Stock Option Plan (the "Plan" or the "ISOP" or the "1989
ISOP"). The purpose of the Plan is to attract and retain the best available
personnel for positions of substantial responsibility and to provide additional
incentives to the officers and other key employees of Cheyenne Software Inc., a
Delaware corporation (the "Company") and any present or future Parent or
Subsidiary of the Company to promote the success of the Company. Pursuant to
the Plan, such persons will be given the opportunity to acquire common stock of
the Company through the grant of incentive stock options. This Plan and the
Options to be granted hereunder are intended to be "incentive stock options" as
defined in Section 422A of the Internal Revenue Code of 1986, as amended.
2. Definitions. In addition to other terms defined elsewhere
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herein, the following capitalized terms used herein have the following
definitions:
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Option Committee of the Board, appointed by
the Board in accordance with Section 4 hereof.
"Common Stock" means the common stock, par value $.01 per share,
of
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the Company.
"Company" means Cheyenne Software, Inc., and all present and
future Subsidiaries. "Continuous Status as an Employee" means the absence of
any interruption or termination of an individual's employment by, or status as
an officer or director of the Company, or any present or future Parent or
Subsidiary. In the case of an Employee on an approved leave of absence, the
Committee may, if it determines that to do so would be in the best interests of
the Company, provide in a specific case for the continuation of Options during
such leave of absence, such continuation to be on such terms and conditions as
the Committee determines to be appropriate.
"Employee" means any person (who may be an officer or a director
of the Company) employed by the Company (within the meaning of Section 3401(c)
of the Code and the regulations promulgated thereunder), or any successor
corporation by merger or consolidation, or employed by a Subsidiary.
"ISO" means an Option.
"Option" means an option granted pursuant to the Plan. Each
Option shall be evidenced by a stock option agreement or certificate, which may
be in the form of a letter.
"Optionee" means an Employee to whom an Option has been granted.
"Option Committee" means the Option Committee of the Board,
appointed by the Board in accordance with Section 4 hereof.
"Parent" means any present or future corporation which would be a
"parent corporation" as defined in Subsections (e) and (g) of Code Section 425.
When the context requires, such determination shall be made as if the Company
were the employer corporation.
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"Plan" means the Cheyenne Software, Inc. 1989 Incentive Stock
Option Plan.
"Share" means one share of Common Stock, adjusted if applicable
in accordance with Section 6 of the Plan.
"Subsidiary" shall mean any present or future corporation which
would be a "subsidiary corporation" as defined in Subsections (f) and (g) of
Code Section 425. When the context requires, such determination shall be made
as if the Company were the employer corporation.
"Underlying Stock" shall mean the Shares of Common Stock subject
to an Option.
3. Shares Subject to the Plan. Except as otherwise required by the
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provisions of paragraph 9 hereof, the aggregate number of Shares which may be
issued upon the exercise of all Options pursuant to the Plan shall not exceed
4,806,250 Shares, unless adjusted in accordance with paragraph 8. Such Shares
may be either authorized but unissued Shares or treasury shares. If an Option
shall expire without having been exercised in full, the unpurchased Underlying
Shares which were subject thereto shall, unless the Plan shall theretofore have
been terminated, again be available for issuance under the Plan.
4. Administration.
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(a) The Plan shall be administered by an option committee (the
"Option Committee" or the "Committee") appointed by the Board and consisting of
two or more members of the Board; the Board, in its absolute discretion, may
select persons to serve on the Committee who would be "disinterested persons".
The term "disinterested person", as used in
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this Plan, shall mean an administrator of the Plan who has not at any time
within one year prior to his/her service as administrator of the Plan received,
and who will not during the term of his/her service receive a discretionary
grant or award of a stock option or stock appreciation rights under this Plan or
any other plan or practice of the Company or any of its affiliates. Any such
person shall otherwise comply with the requirements of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended, as from time to time in
effect. Any standing or other committee of the Board which otherwise satisfies
the requirements of the Option Committee may be authorized by the Board to serve
as the Option Committee, whether or not the name of such committee includes the
term "Option Committee".
(b) The Committee shall be authorized (but only to the extent
not contrary to the express provisions of the Plan or to resolutions adopted by
the Board) to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to determine the recipients, form, and content
of Options to be granted under the Plan, and to make other determinations which
it deems necessary or appropriate for the proper administration of the Plan, and
shall have and may exercise such other powers and authority as may be delegated
to it by the Board from time to time. A majority of the entire Committee shall
constitute a quorum, and the action of a majority of the Committee members
present at any meeting at which a quorum is present shall be the action of the
Committee. All decisions, determinations, and interpretations of the Committee
shall be final and conclusive on all persons affected thereby and shall be
consistent with Code Section 422A.
(c) No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option granted
thereunder.
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(d) The President or such other officers of the Company as the
Committee may designate, or a Secretary of the Committee designated by majority
resolution of the Committee, shall execute such certificates, option agreements
and other documents as may be necessary to evidence the decisions of the
Committee and/or implement and carry out the Plan. The President or other
officers of the Company, when so acting, shall be deemed to be acting solely in
a ministerial capacity, and the acts of such officers of the Company shall not
be construed as giving them any discretionary authority over the granting of
Options or the administration of the Plan.
5. Eligibility. Options may be granted to any Employee who, in the
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opinion of the Committee, has or is expected to make key contributions to the
success of the Company. An Employee who has been granted an Option or any other
options or rights, under any other plan or otherwise, may, if otherwise eligi-
ble, be granted additional Options.
6. Terms and Conditions of Options. Options granted pursuant to the
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Plan shall be evidenced by written agreements in such form as the Committee from
time to time shall determine, which agreements shall comply with and be subject
to the following terms and conditions:
(a) Option Price. The price per share at which any Incentive
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Stock Option granted under the Plan may be exercised shall not be less than the
fair market value (determined in good faith by the Committee on a basis consis-
tent with the provisions of Section 422A of the Code) of the Underlying Stock at
the time such Option is granted. The exercise price of an Option granted to an
Optionee who owns (within the meaning of Section 425(d) of the Code) more than
10% of the total combined voting power of all classes of stock of the
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Company, or of any of its Parent or Subsidiary corporations, at the time such
Option is granted shall not be less than 110% of the fair market value of the
Underlying Stock at the time the Option is granted. No Option may be granted at
a price per share which is less than the par value of the Underlying Stock.
(b) Option Term. The term of each Option shall be established
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by the Committee, but shall not in any event exceed seven (7) years from the
date of grant of the Option.
(c) Nontransferability of Options. Options shall by their terms
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not be transferable except by will or by the laws of descent and distribution
and shall be exercisable during an Optionee's lifetime only by the Optionee.
(d) Time of Exercise. No option may be exercised until the
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second (2nd) anniversary of the date of grant. Not more than 25% of the
Underlying Stock may be purchased prior to the third (3rd) anniversary of the
date of grant, and not more than 50% of the Underlying Stock (including Underly-
ing Stock acquired prior to the 3rd anniversary) may be acquired prior to the
fourth (4th) anniversary of the date of grant.
(e) Other Provisions. The Option agreements authorized under
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the Plan shall contain such other provisions not inconsistent with the terms of
the Plan, including, without limitation, restrictions upon the exercise of the
Option, as the Committee shall deem advisable. Options may contain other terms
or restrictions as determined by the Committee in its discretion.
7. Exercise of Options.
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(a) Procedure for Exercise. Options may be exercised in whole
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or in part by written notice, delivered by hand or mailed by prepaid registered
or certified mail,
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addressed to the President or Secretary of the Company or the Secretary of the
Committee, at the Company's executive offices, which notice shall specify the
date the Option to be exercised was granted and the number of whole Shares to
which such exercise applies. No Option may be exercised to any extent until all
conditions set forth in the Plan and in such Option shall have been satisfied.
(b) Payment. Payment for all Shares purchased by the exercise
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of an Option shall be made in cash or by delivery of Shares owned by the
Optionee having an aggregate fair market value on the date of exercise equal to
the aggregate exercise price of the portion of the Option being exercised.
Payment shall be made at the time that an Option or any part thereof is exer-
cised, and no Shares shall be issued until full payment therefor has been made.
No Optionee shall, as such, have any rights as a stockholder of the Company.
(c) Holding Period of Shares Acquired Under Incentive Stock
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Options. The Committee shall advise each holder of an Option that (i) in order
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for such Option to be treated as an incentive stock option under the Code, the
Shares acquired upon exercise of such Option must not be disposed of until a
date which is at least two years after the date such Option was granted and at
least one year after the date such Shares were acquired by such Optionee, and
that (ii) without written notice, delivered by hand or mailed by prepaid
registered or certified mail, addressed to the President or Secretary of the
Company or the Secretary of the Committee at the Company's executive offices, no
Optionee may dispose of Shares acquired pursuant to the exercise of an Option
within the aforesaid two or one-year periods.
(d) Termination of Employment of an Optionee.
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(i) Subject to the provisions of subparagraphs (ii)
through (v)
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of this paragraph 7(d), if an Optionee's employment with the Company
or a Parent or Subsidiary terminates for any reason, with or without
cause, any Option granted to him shall terminate on the date his
employment terminates.
(ii) Subject to the provisions of subparagraph (iv) of
this paragraph 7(d), if an Optionee dies while in the employ of the
Company or a Parent or Subsidiary, or on approved leave of absence,
his Option may be exercised within three (3) months after his death by
the executor or administrator of the estate of the Optionee or by the
person to whom the Option shall pass by will or by the laws of descent
and distribution, but only to the extent the Optionee was entitled to
exercise the Option on the date of his death. The Company may require
such executor or any other person claiming to be entitled to exercise
the Option pursuant to this subparagraph to furnish such proof of his
or her authority, including a bond or indemnity agreement, as the
Company may reasonably require. The cost of any such bond shall be
the responsibility of the persons seeking to exercise the Options.
(iii) Subject to the provisions of subparagraph (iv) of this
paragraph 7(d), if an Optionee's termination of employment with the
Company and its Parent or Subsidiary shall be by reason of his perma-
nent and total disability (within the meaning of Section 422A(c)(7) of
the Code), any Option shall terminate upon the expiration of twelve
(12) months after the date on which the Optionee's employment is
terminated, and may be exercised by a conservator, guardian or other
fiduciary ("Legal Representative") duly appointed to act on behalf of
the
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Optionee. The Company may require such Legal Representative to
furnish such proof of his or her authority, including a bond or
indemnity agreement, as the Company may reasonably require. The cost
of any such bond shall be the responsibility of the persons seeking to
exercise the Options.
(iv) Notwithstanding the provisions of subparagraphs (ii) and
(iii) of this paragraph 7(d) or any other provisions of this Plan, in
no event may an Option be exercised by anyone after five (5) years
from the date it was granted.
(v) Nothing in the Plan or in any Option shall confer upon any
Optionee the right to continue in the employ of the Company or any
Parent or Subsidiary or interfere in any way with the right of the
Company or such Parent or Subsidiary to terminate the employment of an
Optionee at any time. The Committee's determination that an Optione-
e's employment has terminated and the date thereof shall be final and
conclusive on all persons affected thereby.
8. Changes in Capital. If the outstanding Common Stock subject to
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the Plan shall at any time be changed or exchanged by declaration of a stock
dividend, stock split, combination of shares, recapitalization, merger, consoli-
dation or other corporate reorganization in which the Company is the surviving
corporation, the number and kind of shares subject to this Plan and the option
prices shall be appropriately and equitably adjusted so as to maintain the
option price thereof. In the event of a dissolution or liquidation of the
Company or a merger, consolidation, sale of all or substantially all of its
assets, or other corporate reorganization in which the Company is not the
surviving corporation, or any merger in which the Company is the surviving
corporation but the holders of the Common Stock receive securities of another
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corporation, any outstanding options hereunder shall terminate, provided that
each Optionee shall, in such event, if no provision has been made for a substi-
tution pursuant to the following sentence, have the right immediately prior to
such dissolution, liquidation, merger, consolidation, sale of assets or reorga-
nization in which the Company is the surviving corporation but the holders of
its Common Stock receive securities of another corporation, to exercise any
unexpired option in whole or in part without regard to the date on which the
option otherwise would be first exercisable. Nothing herein contained shall
prevent the substitution of a new option by the surviving corporation. The
existence of the Plan or options hereunder shall not in any way prevent any
transaction described herein and no holder of an option shall have the right to
prevent any such transaction.
9. Time of Granting Options. The date of grant of an Option under
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the Plan shall, for all purposes, be the date specified in such grant. Notice
shall be given to each Employee to whom an Option has been granted within a
reasonable time after the date of such grant.
10. Effective Date, Approval of Stockholders.
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(a) The Plan shall become effective immediately upon adoption by
the Board, subject to the approval by the stockholders of the Company within 12
months after the adoption of the Plan by the Board. The Plan shall continue in
effect for a term of 10 years from the date the Plan is adopted by the Board.
(b) The 1991 amendment to paragraph 3 of the Plan shall become
effective as of the date of stockholder approval and adoption of the Plan, as
amended and restated, with the exception of the amendments contained in subpara-
graph 4(a), which provisions
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shall become effective as of September 1, 1992.
11. Modification of Options. At any time and from time to time the
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Board may authorize the Committee to direct execution of an instrument providing
for the modification, extension, or renewal of any outstanding Option; provid-
ed, however, that no such modification, extension, or renewal shall confer on
the Optionee any right or benefit which could not then be conferred on him by
the grant of a new Option nor shall it impair such Option without the consent of
the Optionee.
12. Amendment and Termination of the Plan. The Board may alter,
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suspend, or discontinue the Plan, except that no action of the Board may
increase (other than as provided in paragraph 10 hereof) the maximum number of
Shares subject to Options or available for the grant of Options under the Plan,
reduce the applicable minimum exercise price, extend the maximum period within
which Options may be exercised under the Plan, or change the designation of
persons eligible to receive Options under the Plan, unless such action of the
Board shall be subject to approval or ratification by the stockholders of the
Company. No action of the Board shall, without the consent of the Optionee,
impair any then outstanding Option.
13. Conditions Upon Issuance of Shares. No Shares shall be delivered
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pursuant to the exercise of any Option unless the delivery of such Shares shall
comply (in the opinion of counsel to the Company) with all relevant provisions
of law, including, without limitation, the Securities Act of 1933, as amended,
the rules and regulations promulgated thereunder, any applicable state securi-
ties laws, and the requirements of any stock exchange upon which the Common
Stock may then be listed. As a condition to the exercise of an Option, the
Company may require the exercising Optionee to make such written representations
and
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warranties as may be necessary to assure the availability of an exemption from
any registration requirements of federal or state securities laws. Certifi-
cates representing Shares issued upon the exercise of any Option may bear a
legend restricting transfer of the Shares except in compliance with Federal and
State securities statutes or an exemption therefrom, if available; failure of
any certificates to contain such a legend shall not constitute a waiver by the
Company of any such registration requirements. The Company, in its discretion,
may require any Optionee to bear (i) his or her proportionate share of the
Company's costs of the registration of his Underlying Shares under the Securi-
ties Act of 1933, as amended (the "Act") or any other federal or state securi-
ties laws, or (ii) the Company's cost of obtaining the opinion of its legal
counsel (not in excess of $500 per transaction for sales effected prior to
January 1, 1994, nor in excess of $1,000 per transaction thereafter) as to the
availability of any exemption from the Act or any other applicable federal or
state securities laws. The foregoing shall not be construed to obligate the
Company to effect any registration under the Act or other securities laws.
14. Gender and Number.
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(a) The use of any gender herein shall be construed to include
all other genders, unless the context clearly indicates that less than all the
genders is intended.
(b) The use of the singular or of the plural herein shall be
construed to include both the singular and the plural, unless the context
clearly indicates that only the singular or only the plural is intended.
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