EXHIBIT 4.5
NON-QUALIFIED STOCK OPTON AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement"), dated as of
(Grant Date) (the "Grant Date"), is between divine, inc., a Delaware
corporation (the "Company"), and (First Name) (Last Name), (the "Participant")
relating to an option granted under the divine, inc. 2001 Stock Incentive Plan
(the "Plan"). Capitalized terms used in this Agreement without definition shall
have the meanings ascribed to such terms in the Plan.
1. Grant of Option, Option Price, and Term.
(a) The Company hereby grants to the Participant a Non-Qualified Stock
Option (the "Option") to purchase (Shares Granted) shares (the "Option Shares")
of the Company's class A common stock, par value $.001 per share ("Stock"),
during the Option Period (as hereinafter defined) at a price of (Price) per
share (the "Option Price"), subject to the provisions of the Plan and the terms
and conditions herein.
(b) The term of this Option shall be for a period of ten (10) years from
the Grant Date (the "Option Period"). During the Option Period, the Option shall
be vested as of the date set forth below for the cumulative percentage of the
Option set forth opposite such date:
Date Cumulative Percentage Vested
---- -----------------------------
(Lapse Date 1) 25%
(Lapse Date 2) 50%
(Lapse Date 3) 75%
(Lapse Date 4) 100%
Notwithstanding the foregoing, in the event the Participant incurs a termination
of employment for any reason whatsoever as an employee of, and/or ceases to be
an officer of or consultant to, the Company or an Affiliate, the provisions of
Section 4 of the Plan relating to termination of employment shall apply.
(c) The Option granted hereunder is designated as a Non-Qualified Stock
Option.
(d) The Company shall not be required to issue any fractional shares of
Stock.
2. Exercise.
The Option may be exercised only to the extent the Option is vested, unless
otherwise agreed to by the Administrator, and may be exercised only by the
delivery to the Company of a properly completed written notice, in form
satisfactory to the Administrator, which notice shall specify the number of
Option Shares to be purchased and the aggregate Option Price for such shares,
together with payment in full of such aggregate Option Price. Payment shall
only be made as specified in the Plan. If any part of the payment of the Option
Price is made in shares of Stock, such shares shall be valued by using their
Fair Market Value as of the date of exercise of the Option.
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The Option may not be exercised unless the Participant (a) enters into (i)
a restricted stock agreement covering the shares of Stock issuable upon exercise
of the Option (a "Restricted Stock Agreement") and (ii) any other document (a
"Private Issuance Document") the Company determines necessary to ensure that the
Option Shares are issued pursuant to an available exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, and (b) there has been
compliance with all the preceding provisions of this Section 2. For all purposes
of this Stock Option Agreement, the date of the exercise of the Option shall be
the date upon which there is compliance with all such requirements.
Notwithstanding the foregoing, the Participant shall not be required to enter
into a Restricted Stock Agreement or a Private Issuance Document upon exercise
of the Option in the event that, at the time of such exercise, (a) the Option is
fully vested as to the Option Shares being purchased, (b) the Company has
consummated an initial public offering of the Stock registered under the
Securities Act, and (c) there is an effective Registration Statement on Form S-8
of the Company under the Securities Act covering the issuance of the Option
Shares upon exercise of the Option.
The Participant acknowledges and agrees that the Restricted Stock Agreement
may include such provisions as the Administrator in its sole discretion may
determine to be desirable including, without limitation, restrictions on
transfer, rights of first refusal of the Company, Company repurchase rights that
may be exercised at any time and for any reason, including repurchases under
specified circumstances that will result in the Participant not realizing any
gain from the purchase of the shares, deferred payment for the purchase of
shares from the Participant, rights to require sale of the shares in the event
of a change in control of the Company, and limitations on sales immediately
following an initial public offering. Except as provided above, exercise of the
Option and issuance of the underlying Option Shares will be conditioned upon the
Participant's (i) acknowledgment that the Participant has read and understands
the terms and provisions of the Restricted Stock Agreement and enters into such
Restricted Stock Agreement voluntarily with an intent to be bound by its
provisions, and (ii) delivery of executed copies of the Restricted Stock
Agreement to the Administrator.
The Option shall be transferable only to, and shall be exercisable only by,
such persons permitted in accordance with Section 4(e) of the Plan.
3. Payment of Withholding Taxes.
If the Company is obligated to withhold an amount on account of any tax
imposed as a result of the exercise of the Option, the Participant shall be
required, at the time of exercise, to pay such amount to the Company, as
provided in the Plan. The Participant acknowledges and agrees that the
Participant is responsible for the tax consequences associated with the grant of
the Option and its exercise.
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4. Changes in Company's Capital Structure.
The existence of the Option will not affect in any way the right or
authority of the Company or its stockholders to make or authorize (a) any
adjustment, recapitalization, reorganization, or other changes in the Company's
capital structure or its business; (b) any merger or consolidation of the
Company; (c) any issuance of bonds, debentures, preferred, or prior preference
stock ahead of or affecting the Stock or the rights thereof; (d) the dissolution
or liquidation of the Company; (e) any sale or transfer of all or any part of
the Company's assets or business; or (f) any other corporate act or proceeding,
whether of a similar character or otherwise. In the event of a Change in
Control or other corporate transaction provided for in the Plan, the Participant
shall have such rights, and the Administrator shall take such actions, as are
provided for in the Plan.
5. Plan.
The Option is granted pursuant to the Plan, and the Option and this
Agreement are in all respects governed by the Plan and subject to all of the
terms and provisions thereof, whether or not such terms and provisions are
incorporated in this Agreement by reference or are expressly cited. In the
event of any conflict between, or inconsistency with, the Plan and this
Agreement, the terms of the Plan shall control and be binding. The Participant
hereby acknowledges receipt of a copy of the Plan.
6. Employment Rights.
No provision of this Agreement or of the Option granted hereunder shall
give the Participant any right to continue in the employ of the Company or any
Affiliate of the Company, create any inference as to the length of employment of
the Participant, affect the right of the Company or any Affiliate of the Company
to terminate the employment of the Participant, with or without Cause, or give
the Participant any right to participate in any employee welfare or benefit plan
or other program (other than the Plan) of the Company or any Affiliate of the
Company.
7. Governing Law.
This Agreement and the Option granted hereunder shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without giving effect to provisions thereof regarding conflict of laws.
8. Waiver; Cumulative Rights.
The failure or delay of either party to require performance by the other
party of any provision hereof shall not affect its right to require performance
of such provision unless and until such performance has been waived in writing.
Each and every right hereunder is cumulative and may be exercised in part or in
whole from time to time.
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9. Notices.
Any notice which either party hereto may be required or permitted to give
the other shall be in writing and may be delivered personally or by mail,
postage prepaid, addressed to the Secretary of the Company, at its then
corporate headquarters, and the Participant at the Participant's address as
shown on the Company's payroll records, or to such other address as the
Participant, by notice to the Company, may designate in writing from time to
time.
10. Conditional Grant.
If the Participant is a resident of a community property state, this Option
is granted upon the condition that, and the Option Shares shall be forfeited
unless, each and any person who is a spouse of the Participant at any time on or
after the Grant Date (including any person who becomes a spouse after the Grant
Date) executes a Consent of Spouse form provided by the Committee, unless the
Committee shall waive either such condition.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by an officer thereunto duly authorized, and the Participant hereby
acknowledges that he/she has read carefully and understands this Agreement and
the Plan and agrees to be bound by all of the provisions set forth in such
documents and has hereunto set his hand, all as of the day and year first above
written.
divine, inc.
By:______________________________
Name:____________________________
Title:___________________________
Participant
Signed:__________________________
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