EXHIBIT 10.1
ONYX SOFTWARE CORPORATION
STOCK AWARD AGREEMENT
Onyx Software Corporation, (the "Company"), hereby awards shares of Common Stock
to the individual named below (the "Participant"). The terms and conditions of
the Stock Award are set forth in this cover sheet, in the attached Stock Award
Agreement and in the Onyx Software Corporation 1998 Stock Compensation Incentive
Plan as amended and restated on March 21, 2003 (the "Plan").
Vesting Date: _________________, YEAR
Award Date: _________________, YEAR
Name of Participant:______________________________________________________
Number of shares of Common Stock Awarded: ________________________________
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED IN THE ATTACHED STOCK AWARD AGREEMENT AND IN
THE PLAN. YOU ARE ALSO ACKNOWLEDGING RECEIPT OF THIS AGREEMENT
AND COPIES OF THE PLAN AND THE PLAN'S PROSPECTUS.
Participant:______________________________________________________________
(Signature)
Company:__________________________________________________________________
(Signature)
Title:____________________________________________________________________
Attachment
ONYX SOFTWARE CORPORATION
STOCK AWARD AGREEMENT
THE PLAN AND OTHER The text of the Plan is incorporated in this
AGREEMENTS Agreement by this reference. You and the Company
agree to execute such further instruments and to
take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
Unless otherwise defined in this Agreement, certain
capitalized terms used in this Agreement are defined
in the Plan.
This Agreement, the attached Exhibits and the Plan
constitute the entire understanding between you and
the Company regarding this Award of Common Stock.
Any prior agreements, commitments or negotiations
are superseded.
AWARD OF COMMON STOCK The Company awards you the number of shares of
Common Stock shown on the cover sheet of this
Agreement. These shares are referred to in this
Agreement as your "Restricted Shares." The Award is
subject to the terms and conditions of this
Agreement and the Plan. This Award is not intended
to constitute a "nonqualified deferred compensation
plan" within the meaning of Section 409A of the
Code, and will be interpreted accordingly.
VESTING As long as you render continuous service to the
Company (or its parent or Subsidiary), you will
become incrementally vested as to 33% of the total
number of Restricted Shares (rounded to the nearest
whole number) as shown on the attached cover sheet
on the one year anniversary of the Vesting Date and
an additional 16.75% of the total number of
Restricted Shares (rounded to the nearest whole
number) each six-months thereafter, with the result
that 100% of the Restricted Shares shall be vested
three years from the Vesting Date. In addition, the
total number of then unvested Restricted Shares may
become fully vested in accordance with Section 11.2
of the Plan in the event of a Corporate Transaction.
Except as provided in the preceding sentence, in the
event that your service ceases prior to the third
anniversary of the Vesting Date, you will forfeit to
the Company all of the unvested Restricted Shares.
For purposes of facilitating the enforcement of the
provisions of this Section, the Company may issue
stop-transfer instructions on the Restricted Shares
to the Company's transfer agent, or otherwise hold
the Restricted Shares in escrow, until the
Restricted Shares have vested and you have satisfied
all applicable obligations with respect to the
Restricted Shares, including any applicable tax
withholding obligations. Any new, substituted or
additional securities or other property which is
issued or distributed with respect to the unvested
Restricted Shares shall be subject to the same terms
and conditions as are applicable to the unvested
Restricted Shares under this Agreement and the Plan.
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CODE SECTION 83(B) Under Section 83 of the Internal Revenue Code of
ELECTION 1986, as amended (the "Code"), the Fair Market Value
of the Restricted Shares on the date any forfeiture
restrictions applicable to such Restricted Shares
lapse will be reportable as ordinary income at that
time. You may elect to be taxed at the time the
Restricted Shares are awarded to you to the extent
that the Fair Market Value of the Restricted Shares
exceeds the amount of consideration paid by you (if
any) for such Restricted Shares at that time rather
than when such Restricted Shares ceases to be
subject to such forfeiture restrictions, by filing
an election under Section 83(b) of the Code with the
Internal Revenue Service within thirty (30) days
after the Award Date. The form for making this
election is attached as Exhibit A hereto. YOU
ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND
NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER
CODE SECTION 83(B), EVEN IF YOU REQUEST THE COMPANY
OR ITS REPRESENTATIVES TO MAKE THIS FILING ON YOUR
BEHALF. YOU ARE RELYING SOLELY ON YOUR OWN ADVISORS
WITH RESPECT TO THE DECISION AS TO WHETHER OR NOT TO
FILE A CODE SECTION 83(B) ELECTION.
LEAVES OF ABSENCE For purposes of this Agreement, while you are a
common-law employee, your service does not terminate
when you go on a bona fide leave of absence that was
approved by the Company (or its parent or
subsidiary) in writing, if the terms of the leave
provide for continued service crediting, or when
continued service crediting is required by
applicable law. Your service terminates in any event
when the approved leave ends, unless you immediately
return to active work.
The Company determines which leaves count for this
purpose, and when your service terminates for all
purposes under the Plan.
VOTING AND OTHER RIGHTS Subject to the terms of this Agreement, you shall
have all the rights and privileges of a shareholder
of the Company while the Restricted Shares are
subject to stop-transfer restrictions, or otherwise
held in escrow, including the right to vote and to
receive dividends (if any).
RESTRICTIONS ON The Company will not issue any Common Stock if the
ISSUANCE issuance of such Common Stock at that time would
violate any law or regulation.
WITHHOLDING TAXES You will be solely responsible for payment of any
and all applicable taxes associated with this Award.
Unless you make other arrangements with the Company
to satisfy your withholding obligations, you agree
to satisfy any applicable withholding tax
obligations that arise in connection with the
Restricted Shares by (i) having the Company withhold
shares from the Restricted Shares held in escrow, or
(ii) tendering shares to the Company, in either
case, equal in value to the amount necessary to
satisfy any such withholding tax obligation. Such
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Shares shall be valued based on the fair market
value as of the day prior to the date that the
amount of tax to be withheld is to be determined
under applicable law. The Company shall not be
required to release the Restricted Shares from the
stop-transfer instructions or escrow unless and
until such obligations are satisfied.
RESTRICTIONS ON RESALE By signing this Agreement, you agree not
to sell any Restricted Share prior to its vesting or
sell any shares of Common Stock acquired under this
Award at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit
sale.
If the sale of shares of Common Stock acquired under
this Award is not registered under the Securities
Act, but an exemption is available which requires an
investment or other representation and warranty, you
shall represent and agree that the shares being
acquired are being acquired for investment, and not
with a view to the sale or distribution thereof, and
shall make such other representations and warranties
as are deemed necessary or appropriate by the
Company and its counsel.
NO RETENTION RIGHTS This Agreement is not an employment agreement and
does not give you the right to be retained by the
Company (or its parent or Subsidiaries). The Company
(or its parent or Subsidiaries) reserves the right
to terminate your service at any time and for any
reason.
ADJUSTMENTS In the event of a stock split, a stock dividend or a
similar change in the Company stock, the number of
Restricted Shares covered by this Award may be
adjusted (and rounded down to the nearest whole
number) pursuant to the Plan.
AUTHORIZATION TO You hereby authorize and direct your employer to
RELEASE NECESSARY collect, use and transfer in electronic or other
PERSONAL INFORMATION form, any personal information (the "Data")
regarding your employment, the nature and amount of
your compensation and the facts and conditions of
your participation in the Plan (including, but not
limited to, your name, home address, telephone
number, date of birth, social security number (or
any other social or national identification number),
salary, nationality, job title, number of shares
held and the details of all awards or any other
entitlement to shares awarded, cancelled, exercised,
vested, unvested or outstanding) for the purpose of
implementing, administering and managing your
participation in the Plan. You understand that the
Data may be transferred to the Company or any of its
Subsidiaries, or to any third parties assisting in
the implementation, administration and management of
the Plan, including any requisite transfer to a
broker or other third party assisting with the
administration of this Award under the Plan or with
whom shares acquired pursuant to this Award or cash
from the sale of such shares may be deposited. You
acknowledge that recipients of the Data may be
located in different countries, and those countries
may have data privacy laws and protections different
from those in the country of your residence.
Furthermore, you acknowledge and understand that the
transfer of the Data
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to the Company or any of its Subsidiaries, or to any
third parties is necessary for your participation in
the Plan.
You may at any time withdraw the consents herein by
contacting your local human resources representative
in writing. You further acknowledge that withdrawal
of consent may affect your ability to exercise or
realize benefits from this Award, and your ability
to participate in the Plan.
LEGENDS If certificates representing the Restricted
Shares are issued under this Award, then such
certificates, where applicable, shall have endorsed
thereon the following legend and any other legend
the Company determines appropriate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES
SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE REGISTERED HOLDER, OR HIS OR
HER PREDECESSOR IN INTEREST. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY BY THE HOLDER OF RECORD OF THE
SHARES REPRESENTED BY THIS CERTIFICATE."
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
NOTICE Any notice to be given or delivered to the Company
relating to this Agreement shall be in writing and
addressed to the Company at its principal corporate
offices. Any notice to be given or delivered to you
relating to this Agreement shall be in writing and
addressed to you at such address of which you advise
the Company in writing. All notices shall be deemed
effective upon personal delivery or upon deposit in
the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
APPLICABLE LAW This Agreement will be interpreted and enforced
under the laws of the State of Washington.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
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EXHIBIT A
ELECTION UNDER SECTION 83(B) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. The name, address and social security number of the undersigned:
________________________________________________________________
________________________________________________________________
________________________________________________________________
Social Security No. :________________________________________
2. Description of property with respect to which the election is being made:
______________ shares of common stock of Onyx Software Corporation (the
"Company").
3. The date on which the property was transferred is _____________, [YEAR].
4. The taxable year to which this election relates is calendar year [YEAR].
5. Nature of restrictions to which the property is subject:
The shares of stock are subject to the provisions of a Stock Award
Agreement (the "Agreement") between the undersigned and the Company. The
shares of stock are subject to forfeiture under the terms of the
Agreement.
6. The fair market value of the property at the time of transfer (determined
without regard to any lapse restriction) was $__________ per share, [for a
total of $__________.]
7. The amount paid by taxpayer for the property was $__________.
8. A copy of this statement has been furnished to the Company.
Dated: _____________ __, [YEAR].
___________________________
[Taxpayer's Name]
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