Exhibit 10.9
ASTEA INTERNATIONAL INC.
AMENDED AND RESTATED 1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. This Non-Qualified Stock Option Plan, to be known as the Astea
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International Inc. Amended and Restated 1995 Non-Employee Director Stock Option
Plan (hereinafter, this "Plan"), is intended to promote the interests of Astea
International Inc. (hereinafter, the "Company") by providing an inducement to
obtain and retain the services of qualified persons who are not employees or
officers of the Company to serve as members of its Board of Directors (the
"Board"). Additionally, this Plan is intended to provide directors of the
Company who are not employees or officers with opportunities to make direct
acquisitions of stock in the Company in lieu of cash compensation for their
services as directors ("Purchases").
2. Available Shares. The total number of shares of Common Stock, par value
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$.01 per share, of the Company (the "Common Stock") for which options may be
granted or Purchases permitted under this Plan shall not exceed 200,000 shares,
subject to adjustment in accordance with paragraph 10 of this Plan. Shares
subject to this Plan are authorized but unissued shares or shares that were once
issued and subsequently reacquired by the Company. If any options granted under
this Plan are surrendered before exercise or lapse without exercise, in whole or
in part, the shares reserved therefor shall continue to be available under this
Plan.
3. Administration. This Plan shall be administered by the Board or by a
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committee appointed by the Board (the "Committee"). In the event the Board
fails to appoint or refrains from appointing a Committee, the Board shall have
all power and authority to administer this Plan. In such event, the word
"Committee" wherever used herein shall be deemed to mean the Board. The
Committee shall, subject to the provisions of the Plan, have the power to
construe this Plan, to determine all questions hereunder, and to adopt and amend
such rules and regulations for the administration of this Plan as it may deem
desirable. No member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to this Plan or any
option granted under it.
4. Automatic Grant of Options. Subject to the availability of shares under
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this Plan,
(a) each person who becomes a member of the Board and who is not an employee
or officer of the Company (a "Non-Employee Director"), shall automatically be
granted, on the date such person is first elected to the Board, without
further action by the Board, an option to purchase 30,000 shares of Common
Stock, and
(b) each Non-Employee Director immediately after the annual meeting of
stockholders of each year (other than the year in which an initial stock
option is granted under subparagraph 4(a) above) shall be automatically
granted on such date, without further action by the Board, an option to
purchase 5,000 shares of the Common Stock.
Options to be granted under this paragraph 4 shall be the only options ever to
be granted at any time to any person under this Plan. The number of shares
covered by options granted under this paragraph 4 shall be subject to adjustment
in accordance with the provisions of paragraph 10 of this Plan. Notwithstanding
anything to the contrary set forth herein, if this Plan is not approved by a
majority of the Company's stockholders present, or represented, and voting on
such matter at the 1998 meeting of Stockholders of the Company, then the
amendments to the Plan contained herein shall terminate and become void.
5. Option Price. The purchase price of the stock covered by an option
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granted pursuant to this Plan shall be 100% of the fair market value of such
shares on the day the option is granted. The option price will be subject to
adjustment in accordance with the provisions of paragraph 10 of this Plan. For
purposes of this Plan, if, at the time an option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if the Common Stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the Common
Stock on the Nasdaq National Market, if the Common Stock is not then traded on a
national securities exchange; or (iii) the closing bid price (or average of bid
prices) last quoted (on that date) by an established quotation service for over-
the-counter securities, if the Common Stock is not reported on the Nasdaq
National Market List. However, if the Common Stock is not publicly traded at the
time an option is granted under the Plan, "fair market value" shall be deemed to
be the fair value of the Common Stock as determined by the Committee after
taking into consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
6. Period of Option. Unless sooner terminated in accordance with the
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provisions of paragraph 8 of this Plan, an option granted hereunder shall expire
on the date which is ten (10) years after the date of grant of the option.
7. (a) Vesting of Shares and Non-Transferability of Options. Options
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granted under this Plan shall not be exercisable until they become vested.
Options granted under this Plan shall vest in the optionee and thus become
exercisable, in accordance with the following schedule, provided that the
optionee has continuously served as a member of the Board through such vesting
date:
For initial options granted pursuant to subparagraph 4(a) above:
Percentage of Option
Shares for which
Option Will be Exercisable Date of Vesting
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0% Less than one year from the date of grant
20% One year from the date of grant
40% Two years from the date of grant
60% Three years from the date of grant
80% Four years from the date of grant
100% Five years from the date of grant
For annual options granted pursuant to subparagraph 4(b) above:
Percentage of Option
Shares for which
Option Will be Exercisable Date of Vesting
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0% Less than one year from the date of grant
50% One year from the date of grant
100% Two years from the date of grant
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The number of shares as to which options may be exercised shall be
cumulative, so that once the option shall become exercisable as to any shares it
shall continue to be exercisable as to said shares, until expiration or
termination of the option as provided in this Plan.
(b) Non-transferability. Any option granted pursuant to this Plan shall
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not be assignable or transferable other than by will or the laws of descent and
distribution or pursuant to a domestic relations order and shall be exercisable
during the optionee's lifetime only by him or her.
8. Termination of Option Rights.
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(a) Except as otherwise specified in the agreement relating to an option,
in the event an optionee ceases to be a member of the Board for any reason other
than 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 optionee so ceases to be a member of the
Board may be exercised, to the extent it is then vested, by the optionee at any
time prior to the scheduled expiration date of the option.
(b) In the event that an optionee ceases to be a member of the Board by
reason of his or her death or permanent disability, any option granted to such
optionee shall be immediately and automatically accelerated and become fully
vested and all unexercised options shall be exercisable by the optionee (or by
the optionee's personal representative, heir or legatee, in the event of death)
for a period of one year thereafter. Any options which are then exercisable but
have not been exercised at the time the Optionee so ceases to be a member of the
Board of Directors may be exercised, to the extent any portion of such options
are then exercisable, by the Optionee at any time prior to the scheduled
expiration date of the option. Notwithstanding the foregoing, in the event any
Optionee (i) ceases to be a member of the Board of Directors at the request of
the Company, (ii) is removed without cause, or (iii) otherwise does not stand
for nomination or re-election as a director of the Company at the request of the
Company, then any portion of any Option granted to such Optionee which is not
then exercisable shall be accelerated and such Option shall be fully exercisable
by the Optionee at any time prior to the scheduled expiration date. No portion
of this Option may be exercised if the Optionee is removed from the Board of
Directors for any one of the following reasons: (i) disloyalty, gross
negligence, dishonesty or breach of fiduciary duty to the Company; or (ii) the
commission of an act of embezzlement, fraud or deliberate disregard of the rules
or policies of the Company which results in loss, damage or injury to the
Company, whether directly or indirectly; or (iii) the unauthorized disclosure of
any trade secret or confidential information of the Company; or (iv) the
commission of an act which constitutes unfair competition with the Company or
which induces any customer of the Company to break a contract with the Company;
or (v) the conduct of any activity on behalf of any organization or entity which
is a competitor of the Company (unless such conduct is approved by a majority of
the members of the Board of Directors).
9. Exercise of Option. Subject to the terms and conditions of this Plan and
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the option agreements, an option granted hereunder shall, to the extent then
exercisable, be exercisable in whole or in part by giving written notice to the
Company by mail or in person addressed to Astea International Inc., Attn:
General Counsel, 455 Business Center Drive, Horsham, PA 19044, stating the
number of shares with respect to which the option is being exercised,
accompanied by payment in full for such shares. Payment may be (a) in United
States dollars in cash or by check, (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 exercised (subject to such
restrictions and guidelines as the Board may adopt from time to time), valued at
fair market value determined in accordance with the provisions of paragraph 5 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. There
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shall be no such exercise at any one time as to fewer than one hundred (100)
shares or all of the remaining shares then purchasable by the person or persons
exercising the option, if fewer than one hundred (100) shares. The Company's
transfer agent shall, on behalf of the Company, prepare a certificate or
certificates representing such shares acquired pursuant to exercise of the
option, shall register the optionee as the owner of such shares on the books of
the Company and shall cause the fully executed certificate(s) representing such
shares to be delivered to the optionee as soon as practicable after payment of
the option price in full. The holder of an option shall not have any rights of a
stockholder with respect to the shares covered by the option, except to the
extent that one or more certificates for such shares shall be delivered to him
or her upon the due exercise of the option.
10. Adjustments Upon Changes in Capitalization and Other Events. Upon the
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occurrence of any of the following events, an optionee's rights with respect to
options granted to him or her hereunder shall be adjusted as hereinafter
provided:
(a) Stock Dividends and Stock Splits. If the shares of Common Stock
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shall be subdivided or combined into a greater or smaller number of shares or
if the Company shall issue any shares of Common Stock as a stock dividend on
its outstanding Common Stock, the number of shares of Common Stock
deliverable upon the exercise of options shall be appropriately increased or
decreased proportionately, and appropriate adjustments shall be made in the
purchase price per share to reflect such subdivision, combination or stock
dividend.
(b) Business Combinations. If the Company is to be consolidated with or
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acquired by another entity in a merger, stock sale, sale of all or
substantially all of the Company's assets or otherwise, each option granted
under this Plan which is outstanding but unvested as of the effective date of
such event shall become exercisable in full immediately prior to the
effective time of such event. In the event of a reorganization,
recapitalization, merger, consolidation, or any other change in the corporate
structure or shares of the Company, to the extent permitted by Rule 16b-3
under the Securities Exchange Act of 1934, adjustments in the number and kind
of shares authorized by this Plan and in the number and kind of shares
covered by, and in the option price of outstanding options under this Plan
necessary to maintain the proportionate interest of the optionee and
preserve, without exceeding, the value of such option, shall be made.
Notwithstanding the foregoing, no such adjustment shall be made which would,
within the meaning of any applicable provisions of the Internal Revenue Code
of 1986, as amended, constitute a modification, extension or renewal of any
Option or a grant of additional benefits to the holder of an Option.
(c) Issuances of Securities. Except as expressly provided herein, no
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issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
(d) Adjustments. Upon the happening of any of the foregoing events, the
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class and aggregate number of shares set forth in paragraphs 2 and 4 of this
Plan that are subject to options which previously have been or subsequently
may be granted under this Plan shall also be appropriately adjusted to
reflect such events. The Board shall determine the specific adjustments to
be made under this paragraph 10 and its determination shall be conclusive.
11. Restrictions on Issuance of Shares. Notwithstanding the provisions of
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paragraphs 4 and 9 of this Plan, the Company shall have no obligation to deliver
any certificate or certificates upon exercise of an option until one of the
following conditions shall be satisfied:
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(i) The issuance of shares with respect to which the option has been
exercised is at the time of the issue of such shares effectively registered
under applicable Federal and state securities laws as now in force or
hereafter amended; or
(ii) Counsel for the Company shall have given an opinion that the
issuance of such shares is exempt from registration under Federal and state
securities laws as now in force or hereafter amended; and the Company has
complied with all applicable laws and regulations with respect thereto,
including without limitation all regulations required by any stock exchange
upon which the Company's outstanding Common Stock is then listed.
12. Purchases. Each non-employee Director may elect in writing to receive
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all or a portion of his cash compensation for Board service and other cash
compensation in shares of Common Stock, which will be issued quarterly. Such
election shall be irrevocable and shall be made at least three months in advance
of the date the non-employee Director receives the cash payment. Only whole
numbers of shares will be issued and any fractional shares shall be paid in
cash. For purposes of computing the number of shares earned and their taxable
value each quarter, the value of each share shall be equal to the fair market
value of the Common Stock on the last business day of the quarter. If a
Participant dies prior to payment of all shares earned, the balance due shall be
payable in full to the Director's estate, in cash. Members of the Board who
either are eligible for Purchases pursuant to the Plan or have made Purchases
may vote on any matters affecting the administration of the Plan or the approval
of any Purchase pursuant to the Plan.
13. Legend on Certificates. The certificates representing shares issued
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pursuant to the exercise of an option granted hereunder or a Purchase shall
carry such appropriate legend, and such written instructions shall be given to
the Company's transfer agent, as may be deemed necessary or advisable by counsel
to the Company in order to comply with the requirements of the Securities Act of
1933 or any state securities laws.
14. Representation of Optionee. If requested by the Company, the optionee
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shall deliver to the Company written representations and warranties upon
exercise of the option that are necessary to show compliance with Federal and
state securities laws, including representations and warranties to the effect
that a purchase of shares under the option is made for investment and not with a
view to their distribution (as that term is used in the Securities Act of 1933).
15. Option Agreement. Each option granted under the provisions of this Plan
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shall be evidenced by an option agreement, which agreement shall be duly
executed and delivered on behalf of the Company and by the optionee to whom such
option is granted. The option agreement shall contain such terms, provisions
and conditions not inconsistent with this Plan as may be determined by the
officer executing it.
16. Termination and Amendment of Plan. Options may no longer be granted
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under this Plan after March 20, 2008, and this Plan shall terminate when all
options granted or to be granted hereunder are no longer outstanding. The Board
may at any time terminate this Plan or make such modification or amendment
thereof as it deems advisable; provided, however, that the Board may not,
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without approval by the affirmative vote of the holders of a majority of the
shares of Common Stock present in person or by proxy and voting on such matter
at a meeting, (a) increase the maximum number of shares for which options may be
granted under this Plan (except by adjustment pursuant to Section 10), (b)
materially modify the requirements as to eligibility to participate in this
Plan, (c) materially increase benefits accruing to option holders under this
Plan or (d) amend this Plan in any manner which would cause Rule 16b-3 under the
Securities Exchange Act (or any successor or amended provision thereof) to
become inapplicable to this Plan; and provided further that the provisions of
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this Plan specified in Rule 16b-3 (or any successor or amended provision
thereof) under the Securities Exchange Act of 1934 (including without
limitation, provisions as to eligibility, amount, price and timing of awards)
may
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not be amended more than once every six months, other than to comport with
changes in the Internal Revenue Code, the Employee Retirement Income Security
Act, or the rules thereunder. Termination or any modification or amendment of
this Plan shall not, without consent of a participant, affect his or her rights
under an option previously granted to him or her.
17. Withholding of Income Taxes. Upon the exercise of an option, the
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Company, in accordance with Section 3402(a) of the Internal Revenue Code, may
require the optionee to pay withholding taxes in respect of amounts considered
to be compensation includible in the optionee's gross income.
18. Compliance with Regulations. It is the Company's intent that the Plan
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comply in all respects with Rule 16b-3 under the Securities Exchange Act of 1934
(or any successor or amended provision thereof) and any applicable Securities
and Exchange Commission interpretations thereof. If any provision of this Plan
is deemed not to be in compliance with Rule 16b-3, the provision shall be null
and void.
19. Governing Law. The validity and construction of this Plan and the
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instruments evidencing options shall be governed by the laws of the State of
Delaware, without giving effect to the principles of conflicts of law thereof.
Date Approved by Board of Directors of the Company: March 20, 1998
Date Approved by Stockholders of the Company:
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