Exhibit 10.17
STOCK OPTION AGREEMENT
Agreement (the "Option Agreement") dated this 5th day of
November, 2001 (the "Date of Grant"), between Infinium Software, Inc., a
Massachusetts corporation (the "Company"), and Robert A. Pemberton (the
"Participant"), a non-employee member of the Board of Directors of the Company
with a residence address at 125 Wianno Avenue, Osterville, Massachusetts 02655.
1. Grant of Option. The Company hereby grants to the
Participant an option to purchase, in whole or in part and from time to time, on
the terms herein provided, a total of twenty eight thousand (28,000) shares of
Common Stock of the Company ("Common Stock") at $1.35 per share, which is not
less than the Fair Market Value of the Common Stock on the date hereof. This
option is granted pursuant to and subject to the provisions of the Company's
1995 Stock Plan (the "Plan") attached hereto as Exhibit A. Capitalized terms
used herein but not defined herein have the meanings given them in the Plan.
2. Time Limits. Except as otherwise provided in this
Section, in Section 6 hereof (relating to the death or permanent disability of
the Participant), in Section 7 hereof (relating to termination of status as a
member of the Board of Directors), and Section 8 (relating to changes in stock),
the option granted hereby is exercisable as follows:
Shares as To Which Commencement of
Option May be Exercised Exercise Period
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7,000 Shares 5 November 2002
7,000 Shares 5 November 2003
7,000 Shares 5 November 2004
7,000 Shares 5 November 2005
This option may not be exercised to any extent after the expiration of ten years
from the Date of Grant.
3. Exercise of Option. This option (or any part or
installment hereof) shall be exercised by giving written notice to the Company
by mail or in person, signed by the person entitled to exercise the option,
stating the number of shares with respect to which the option is being
exercised, accompanied by payment in full for such shares.
4. Payment for and Delivery of Stock. The shares of
Common Stock purchased on any exercise of the option shall be paid for in full
at the time of such exercise. The option price may be paid (a) in United States
dollars in cash or by check or (b)in whole or in part in shares of the Common
Stock of the Company already owned by the person or persons exercising the
option or shares subject to the option being (subject to such restrictions and
guidelines as the Board may adopt from time to time), valued at Fair Market
Value at the time of exercise, as determined by the Committee, in determining
the extent to which the option price has been paid in shares, or (c) consistent
with applicable law, through the delivery of an
assignment to the Company of a sufficient amount of the proceeds from the sale
of the Common Stock acquired upon exercise of the option and an authorization to
the broker or selling agent to pay that amount to the Company, which sale shall
be at the Participant's direction at the time of exercise.
5. Non-transferability of Option. This option may not be
transferred by the Participant otherwise than by will or by the laws of descent
and distribution or pursuant to a domestic relations order, and during the
Participant's lifetime this option may be exercised only by him.
6. Death or Permanent Disability. If the Participant
ceases to be a member of the Board of Directors as a result of his death or
permanent disability, any option granted to such Participant shall be
immediately and automatically accelerated and become fully vested and all
unexercised options shall be exercisable by the Participant (or by the
Participant's personal representative, heir or legatee, in the event of death)
until the scheduled expiration date of the option.
7. Termination of Status as a Member of the Board of
Directors. If the status of the Participant as a member of the Board of
Directors terminates for any reason other than his death or permanent
disability, any then unexercised portion of options granted to such optionee
shall, to the extent not then vested, immediately, terminate and become void.
Any portion of an option which is then vested but has not been exercised at the
time the participant so ceases to be a member of the Board may be exercised, to
the extent it is then vested, by the participant within 90 days of the date the
Participant ceased to be a member of the Board; and all options shall terminate
after such 90 days have expired. Notwithstanding the foregoing sentence, in the
event any unexercised portion of any option would otherwise terminate when there
is a restriction on the Participant's ability either to exercise the option or
sell any shares issuable upon exercise of the option due to a pooling lock-up
period in the event of a business combination involving the Company, or a
blackout period imposed by the Company to prevent insider trading violations,
the termination of the option will be extended thirty (30) days beyond the lapse
of such restriction, but in no event beyond the period of the option pursuant to
Section 6 of the Plan. Provided, however, in the event that a Participant ceases
to be a member of the Board for any reason but shall continue to render services
to the Company pursuant to a written consulting agreement, any option granted to
such Participant shall continue to vest in accordance with Section 2 for so long
as such person continues so to serve as a consultant to the Company.
8. Changes in Stock. In the event of a stock dividend,
stock split or other change in corporate structure or capitalization affecting
the Common Stock, the Committee shall make appropriate adjustments in (i) the
number and kind of shares of stock remaining subject to the option at the time
of such change and (ii) the option price. The Committee's determination shall be
binding on all persons concerned. If the Company is to be consolidated with or
acquired by another entity in a merger, sales of all or substantially all of the
Company's assets or otherwise, this option shall become exercisable in full
thirty (30) days prior to the effective date of such event.
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9. Reservation of Shares. The Company shall at all times
during the term of the option granted hereby reserve and keep available such
number of shares of the Common Stock as will be sufficient to satisfy the
requirements of the option granted hereby.
10. Restrictions on Disposition. All shares acquired by
the Participant pursuant to the option granted hereby shall be subject to all
restrictions set forth in the Company's by-laws and in any applicable agreements
between or among the Participant, other shareholders and/or the Company.
11. No Right to Continuation on the Board of Directors.
The grant of this option does not confer upon the Participant any right to
continued election or retention on the Company's Board of Directors.
12. Communications. Any communication or notice required
or permitted to be given under this Agreement shall be delivered in hand, if to
the Company, to its Secretary at 25 Communications Way, Independence Park,
Hyannis, MA 02601, and, if to the Participant, at the address set forth on the
first page of this Agreement or such other address, in each case, as the
addressee shall last have furnished to the communicating party.
13. Miscellaneous. This option granted hereunder shall be
construed under and governed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Infinium Software, Inc. has caused this
Agreement to be executed by its duly authorized officer and the Participant has
hereunto set his hand, both as of the Date of Grant set forth above.
INFINIUM SOFTWARE, INC. PARTICIPANT
By: By:
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Print Name: Robert A. Pemberton
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