EXHIBIT 10.17
APPLIX, INC.
2003 DIRECTOR EQUITY PLAN
1. Purpose.
The purpose of this 2003 Director Equity Plan (the "Plan") of Applix, Inc.
(the "Company") is to compensate non-employee directors for their services and
participation in the meetings of the Board of Directors and any committees on
which such director served in the prior year, to encourage ownership in the
Company by non-employee directors of the Company whose services are considered
essential to the Company's future progress and to provide them with a further
incentive to remain as directors of the Company.
2. Administration.
The Board of Directors shall supervise and administer the Plan. All
questions concerning interpretation of the Plan or any stock awards or options
granted under it shall be resolved by the Board of Directors and such resolution
shall be final and binding upon all persons having an interest in the Plan. The
Board of Directors may, to the full extent permitted by or consistent with
applicable laws or regulations, delegate any or all of its powers under the Plan
to a committee appointed by the Board of Directors, and if a committee is so
appointed, all references to the Board of Directors in the Plan shall mean and
relate to such committee.
3. Participation in the Plan; Eligibility.
Directors of the Company who are not employees of the Company or any
subsidiary of the Company ("non-employee directors") shall be eligible to
receive stock awards and options under the Plan, provided he or she attended
(including by telephone or teleconference) at least 75% of the meetings of the
Board of Directors and any committees on which he or she served in the preceding
year, except that such attendance requirement shall not apply to Election Grants
(as defined below).
4. Stock Subject to the Plan.
(a) The maximum number of shares of the Company's Common Stock, par value
$.0025 per share ("Common Stock"), which may be issued under the Plan shall be
300,000 shares, subject to adjustment as provided in Section 9.
(b) If any outstanding option under the Plan for any reason expires or is
terminated without having been exercised in full, the shares covered by the
unexercised portion of such option shall again become available for issuance
pursuant to the Plan.
(c) Shares of Common Stock issued under the Plan may consist in whole or
in part of authorized but unissued shares or treasury shares.
5. Stock Options.
All options granted under the Plan shall be non-statutory options not
entitled to special tax treatment under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"). Each option granted under the Plan shall be
evidenced by a written agreement in such form as the Company shall from time to
time approve, which agreements shall comply with and be subject to the following
terms and conditions:
(a) Option Grant Dates. Options shall automatically be granted to the
non-employee directors as follows:
(i) each person who first becomes a non-employee director on or
following the date that the Plan is approved by the stockholders of the
Company shall be granted an option to purchase 10,000 shares of Common Stock
on the date of his or her election to the Board of Directors (an "Election
Grant"); and
(ii) each non-employee director shall be granted an option to purchase
10,000 shares of Common Stock on January 1 of each year, beginning January 1,
2004.
Each date of grant of an option pursuant to this Section 5(a) is
hereinafter referred to as an "Option Grant Date."
(b) Option Exercise Price. The option exercise price per share for each
option granted under the Plan shall equal (i) the closing price on any national
securities exchange on which the Common Stock is listed, (ii) the closing price
of the Common Stock on the Nasdaq National Market or (iii) the average of the
closing bid and asked prices in the over-the-counter market, whichever is
applicable, as published in The Wall Street Journal, on the Option Grant Date.
If no sales of Common Stock were made on the Option Grant Date, the price of the
Common Stock for purposes of clauses (i) and (ii) above shall be the reported
price for the next preceding day on which sales were made.
(c) Transferability of Options. Except as the Board may otherwise
determine or provide in an option granted under the Plan, any option granted
under the Plan to an optionee shall not be transferable by the optionee other
than by will or the laws of descent and distribution, and shall be exercisable
during the optionee's lifetime only by the optionee or the optionee's guardian
or legal representative. References to an optionee, to the extent relevant in
the context, shall include references to authorized transferees.
(d) Vesting Period.
(i) General. Each option granted under the Plan shall, in the case of
an Election Grant, become exercisable in two equal annual installments on the
first and second anniversaries of the Option Grant Date, and, in the case of
all other option grants, become exercisable in full on the first anniversary
of the Option Grant Date; in each case provided that the optionee is serving
as a director of the Company on such anniversary.
(ii) Acceleration Upon a Change In Control. Notwithstanding the
foregoing, each outstanding option granted under the Plan shall immediately
become exercisable in full
2
upon the occurrence of a Change in Control (as defined in Section 10) with
respect to the Company.
(iii) Right to Receive Restricted Stock. Notwithstanding the
provisions of Section 5(d)(i) above, the Board shall have the authority to
grant options pursuant to Section 5(a) above which are immediately exercisable
subject to the Company's right to repurchase any unvested shares of stock
acquired by the optionee on exercise of an option in the event such optionee's
service as a director terminates for any reason.
(iv) Termination. Each option shall terminate, and may no longer be
exercised, on the earlier of (i) the date seven years after the Option Grant
Date of such option or (ii) the date 90 days after the optionee ceases to
serve as a director of the Company.
(e) Exercise Procedure. An option may be exercised only by written notice
to the Company at its principal office accompanied by (i) payment in cash or by
certified or bank check of the full consideration for the shares as to which
they are exercised, (ii) delivery of outstanding shares of Common Stock
(provided such shares of Common Stock, if acquired directly from the Company,
were owned by the exercising non-employee director, and not subject to
repurchase by the Company, for at least six months prior to such delivery)
having a fair market value on the last business day preceding the date of
exercise equal to the option exercise price, or (iii) an irrevocable undertaking
by a creditworthy broker to deliver promptly to the Company sufficient funds to
pay the exercise price or delivery of irrevocable instructions to a creditworthy
broker to deliver promptly to the Company cash or a check sufficient to pay the
exercise price.
(f) Exercise by Representative Following Death of Director. An optionee,
by written notice to the Company, may designate one or more persons (and from
time to time change such designation), including his or her legal
representative, who, by reason of the optionee's death, shall acquire the right
to exercise all or a portion of the option. If the person or persons so
designated wish to exercise any portion of the option, they must do so within
the term of the option as provided herein. Any exercise by a representative
shall be subject to the provisions of the Plan.
6. Stock Awards.
(a) Date and Amount of Stock Grant. Each non-employee director shall
receive a grant of Common Stock on (1) the date that the Plan is first approved
by the stockholders of the Company and (2) thereafter, on January 1 of each
year, beginning January 1, 2004, as follows:
(i) $5,000 worth of Common Stock to each non-employee director
serving as a director on such date;
(ii) an additional $10,000 worth of Common Stock to the non-employee
director serving as Chairman of the Board of Directors on such date;
(iii) an additional $2,500 worth of Common Stock to each non-employee
director serving on the Audit Committee on such date;
3
(iv) an additional $5,000 worth of Common Stock to the non-employee
director serving as the Chairman of the Audit Committee on such date;
(v) an additional $2,500 worth of Common Stock to each non-employee
director serving on the Compensation Committee on such date;
(vi) an additional $2,500 worth of Common Stock to the non-employee
director serving as the Chairman of the Compensation Committee on such date;
(vii) an additional $2,500 worth of Common Stock to each non-employee
director serving on the Nominating and Corporate Governance Committee on such
date; and
(viii) an additional $2,500 worth of Common Stock to each non-employee
director serving on the Strategic Planning Committee on such date.
(b) Valuation of Stock Granted. The calculation of the number of shares of
Common Stock to be granted pursuant to Section 6(a) above shall be based upon
the average of (i) the closing price on any national securities exchange on
which the Common Stock is listed, (ii) the closing price of the Common Stock on
the Nasdaq National Market or (iii) the average of the closing bid and asked
prices in the over-the-counter market, whichever is applicable, as published in
The Wall Street Journal, on the five consecutive trading days ending two days
prior to the Option Grant Date.
7. Withholding. Each non-employee director shall pay to the Company, or make
provision satisfactory to the Board of Directors for payment of, any taxes
required by law to be withheld in connection with stock awards or options to
such non-employee director no later than the date of the event creating the tax
liability. Except as the Board of Directors may otherwise provide, so long as
the Common Stock is registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), non-employee directors may satisfy such tax
obligations in whole or in part by delivery of shares of Common Stock, including
shares issued pursuant to the stock award or option creating the tax obligation,
valued at their fair market value; provided, however, that the total tax
withholding where stock is being used to satisfy such tax obligations cannot
exceed the Company's minimum statutory withholding obligations (based on minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to such supplemental taxable income). The
Company may, to the extent permitted by law, deduct any such tax obligations
from any payment of any kind otherwise due to a non-employee director.
8. Limitation of Rights.
(a) No Right to Continue as a Director. Neither the Plan, nor the granting
of an option or stock award hereunder, nor any other action taken pursuant to
the Plan, shall constitute or be evidence of any agreement or understanding,
express or implied, that the Company will retain the optionee as a director for
any period of time.
(b) No Stockholders' Rights for Options. An optionee shall have no rights
as a stockholder with respect to the shares covered by his or her option until
the date of the issuance to him or her of a stock certificate therefor, and no
adjustment will be made for dividends or
4
other rights (except as provided in Section 9) for which the record date is
prior to the date such certificate is issued. Notwithstanding the foregoing, in
the event the Company effects a split of the Common Stock by means of a stock
dividend and the exercise price of and the number of shares subject to stock
options are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), then an optionee who exercises an
option between the record date and the distribution date for such stock dividend
shall be entitled to receive, on the distribution date, the stock dividend with
respect to the shares of Common Stock acquired upon such option exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.
(c) Compliance with Securities Laws. Each stock award and option shall be
subject to the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares subject
to such stock award or option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental or regulatory body,
or the disclosure of non-public information or the satisfaction of any other
condition is necessary as a condition of, or in connection with, the issuance or
purchase of shares pursuant to such stock award or option, the such stock award
may not be issued, and such option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or obtained on
conditions acceptable to the Board of Directors. Nothing herein shall be deemed
to require the Company to apply for or to obtain such listing, registration or
qualification, or to satisfy such condition.
9. Adjustment Provisions for Mergers, Recapitalizations and Related
Transactions.
If, through or as a result of any merger, consolidation, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar transaction, (i) the outstanding shares of Common Stock
are exchanged for a different number or kind of securities of the Company or of
another entity, or (ii) additional shares or new or different shares or other
securities of the Company or of another entity are distributed with respect to
such shares of Common Stock, the Board of Directors shall make an appropriate
and proportionate adjustment in (w) the maximum number and kind of shares
reserved for issuance under the Plan, (x) the number and kind of shares or other
securities subject to then outstanding options under the Plan, (y) the number
and kind of shares or other securities issuable pursuant to stock options to be
granted pursuant to Section 5(a) hereof, and (z) the price for each share
subject to any then outstanding options under the Plan (without changing the
aggregate purchase price for such options), to the end that each option shall be
exercisable, for the same aggregate exercise price, for such securities as such
optionholder would have held immediately following such event if he had
exercised such option immediately prior to such event. No fractional shares will
be issued under the Plan on account of any such adjustments.
10. Definition of "Change in Control".
"Change in Control" means an event or occurrence set forth in any one or
more of subsections (a) through (d) below (including an event or occurrence that
constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection):
5
(a) the acquisition by an individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person") of beneficial
ownership of any capital stock of the Company after the date of adoption of this
Plan by the Board of Directors if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 50% or more of either (x) the then-outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (y) the
combined voting power of the then-outstanding securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security acquired
such security directly from the Company or an underwriter or agent of the
Company), (B) any acquisition by the Company, (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (D) any acquisition by any
corporation pursuant to a transaction which complies with clauses (x) and (y) of
subsection (c) of this Section 10; or
(b) such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board of Directors of
a successor corporation to the Company), where the term "Continuing Director"
means at any date a member of the Board (x) who was a member of the Board on the
date of the initial adoption of this Plan by the Board or (y) who was nominated
or elected subsequent to such date by at least a majority of the directors who
were Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election; provided, however, that there shall be excluded from this clause (y)
any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company in
one or a series of transactions (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (x) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a corporation which as a
result of such transaction owns the Company or substantially all of the
Company's assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively, and (y) no
Person (excluding the Acquiring Corporation or any
6
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 30%
or more of the then-outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors
(except to the extent that such ownership existed prior to the Business
Combination); or
(d) approval by the stockholders of a complete liquidation or dissolution
of the Company.
11. Termination and Amendment of the Plan.
The Board of Directors may suspend or terminate the Plan or amend it in any
respect whatsoever.
12. Notice.
Any written notice to the Company required by any of the provisions of the
Plan shall be addressed to the Treasurer of the Company and shall become
effective when it is received.
13. Governing Law.
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the internal laws of the Commonwealth of Massachusetts
(without regard to any applicable conflicts of laws or principles).
14. Effective Date.
The Plan shall become effective on the date it is adopted by the
stockholders of the Company.
Adopted by the Board of Directors on March
25, 2003. Approved by the stockholders on
June 12, 2003.
7