1
EXHIBIT 4.05
AMENDED AND RESTATED INCENTIVE STOCK OPTION AGREEMENT
STOCK INCENTIVE PLAN
This Stock Option Agreement ("Agreement") is entered into as of the ___
day of ________, 199__, between ______________________ (the "Corporation"), a
Florida corporation having its principal office in Ft. Lauderdale, Florida, and
_______________(the "Employee"), of the Corporation or one of its subsidiaries.
1. THE OPTION. Under and subject to the provisions of the
Corporation's Stock Incentive Plan as in effect from time to time (the "Plan"),
on February 4, 1996 the Corporation granted to the Employee an Incentive Stock
Option (the "Option"), which complies with Section 422 of the Internal Revenue
Code ("Code"). On March 18, 1996, the Corporation's three-for-one stock split
became effective and this Amended and Restated Incentive Stock Option Agreement
is being entered into to reflect that the number of shares subject to the Option
has, as a result of the stock split, been multiplied by three and the per-share
exercise price of the Option has been divided by three. As a result of the stock
split, the Option granted February 4, 1996 is now an option to purchase an
aggregate of ____________ shares of Common Stock of the Corporation at the price
of __________ per share. In all other respects, the Option shall remain the
same, as follows:
(a) The Option shall not be exercisable to any extent until
and unless the Employee shall have remained continuously in the employ
of the Corporation for one year from the date hereof. Nothing herein
shall limit or restrict the Corporation's rights to terminate the
Employee's employment.
(b) During the lifetime of the Employee, the Option shall be
exercisable only by the Employee, and (except when Section 2 is
applicable) only while the Employee continues as an employee of the
Corporation.
(c) Notwithstanding any other provision of this Agreement, the
Option shall expire no later than five years from the date of this
Agreement, and shall not be exercisable thereafter.
(d) The number of shares of Common Stock with respect to which
the Option may be exercised from time to time is limited to the
following percentages of the aggregate number of shares optioned
hereby:
(i) After the end of one year and prior to the end of
two years from the date hereof, not more than
thirty-three percent (33.333%);
(ii) After the end of two years and prior to the end of
three years from the date hereof, not more than
sixty-six percent (66.666%);
(iii) After the end of three years from the date hereof,
one-hundred percent (100%).
2
(e) Upon a Change in Control, any outstanding Option shall
immediately become exercisable. Notwithstanding the foregoing, (i)
individuals who constitute the Incumbent Board continue to constitute
in excess of three-fourths (3/4) of the Board as described in Section
2(b) of the Plan, and (ii) the Board Committee and the Board each
unanimously determine that it would be in the best interest of the
Corporation for an event that would constitute a Change in Control not
to accelerate the vesting of the exercisability of the Option, and
(iii) Employee's employment with the Corporation is not terminated by
the Corporation within one year after the Change in Control, and (iv)
within one year after the Change in Control Employee's principal work
location is not moved geographically by more than 75 miles (if Employee
is a sales representative whose principal work location is not the
Company's Fort Lauderdale headquarters, then the 75-mile limitation
contained this subsection 1(e)(iv) shall be 500 miles), then the Board
Committee, in its sole discretion, may take any one or more of the
following actions: (x) determine to retain the existing schedule of
exercisability of the Option as described in Section 1(d) hereof
("Vesting Schedule"); (y) modify the Vesting Schedule so that some, but
not all, of the Option's exercisability accelerates; and (z) change the
dates under the Vesting Schedule so that some or all of the Options
become exercisable on dates earlier than those set forth in the Vesting
Schedule. The sale of the Corporation's real-time division to
Concurrent Computer Corporation shall not constitute a Change in
Control.
2. TERMINATION OF EMPLOYMENT
(a) Death. In the event of the death of the Employee, the
Option shall be exercisable only within the twelve (12) months next
succeeding the date of death, and then only (i) by the executor or
administrator of the Employee's estate or by the person or persons to
whom the Employee's rights under the Option shall pass by the
Employee's will or the laws of descent and distribution, and (ii) if
and to the extent that the Option was exercisable at the date of the
Employee's death
(b) Disability. In the event of disability of the Employee,
the Option shall be exercisable by the Employee only within the twelve
(12) months following such cessation of employment but no later than
the expiration date described in Section 1(c) and to the extent that
the Option was exercisable at the date of such cessation of employment,
and no more.
(c) Retirement. In the event of retirement of the Employee,
the Option shall be exercisable by the Employee only within thirty-six
(36) months following such cessation of employment, but no later than
the expiration date described in Section 1(c) and to the extent that
the Option was exercisable at the date of such cessation of employment,
and no more.
(d) Termination of Employment. In the event of termination of
employment for reasons other than death, disability or retirement, the
Option shall be exercisable only by the Employee within three (3)
months following such cessation of employment but no later than the
expiration date described in Section 1(c) and to the extent that it was
exercisable at the date of such cessation of employment, and no more.
3
3. EXERCISE OF OPTION. The Option may be exercised by delivering to the
Corporation at the office of the Corporate Secretary (i) a written notice,
signed by the person entitled to exercise the Option, stating the number of
shares such person then elects to purchase hereunder, (ii) payment in an amount
equal to the full purchase price of the shares then to be purchased, and (iii)
in the event the Option is exercised by any person other than the Employee,
evidence satisfactory to the Corporation that such person has the right to
exercise the Option. Payment shall be made (a) in cash, (b) in previously
acquired shares of Common Stock of the Corporation, valued at their Fair Market
Value on the day preceding the exercise date of the Option, or (c) in any
combination of cash and such shares. Shares tendered in payment of the purchase
price which have been acquired through an exercise of a stock option shall have
been held at least six (6) months prior to exercise of the Option. Upon the due
exercise of the Option, the Corporation shall issue in the name of the person
exercising the Option, and deliver to the Employee, one or more certificates for
the shares in respect of which the Option shall have been so exercised. The
Employee acknowledges that the Employee does not have any rights as a
shareholder in respect of any shares as to which the Option shall not have been
duly exercised and that no rights as a shareholder shall arise in respect of any
such shares until and except to the extent that a certificate or certificates
for such shares shall have been issued.
4. PROHIBITION AGAINST TRANSFER. The Option and rights granted by the
Corporation under this Agreement are not transferable except by will or the laws
of descent and distribution. Without limiting the generality of the foregoing,
the Option may not be assigned, transferred except as aforesaid, pledged or
hypothecated, shall not be assignable by operation of law, and shall not be
subject to execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary to
the provisions hereof, or the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without effect.
5. ADJUSTMENTS. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure such that shares of Common Stock are changed into or become
exchangeable for a larger or smaller number of shares, the number of shares
subject to outstanding Options shall be increased or decreased in direct
proportion to the increase or decrease in the number of shares of Common Stock
by reason of such change in corporate structure. The number of shares shall
always be a whole number, and the purchase price per share of any outstanding
Options shall, in the case of an increase in the number of shares, be
proportionately reduced, and in the case of a decrease in the number of shares,
shall be proportionately increased.
6. EMPLOYMENT BY PARENT, SUBSIDIARY OR SUCCESSOR. For the purpose of
this Agreement, employment by a parent or subsidiary of or a successor to the
Corporation shall be considered employment by the Corporation. "Parent" and
"subsidiary" as used herein shall have the meaning of "parent" and "subsidiary
corporation," respectively, as defined in Section 424 of the Internal Revenue
Code of 1986, as amended, or subsequent comparable statute.
7. COMMITTEE. The Committee administering the Plan shall have
authority, subject to the express provisions of the Plan as in effect from time
to time, to construe this Agreement and the Plan, to establish, amend and
rescind rules and regulations relating to the Plan, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any
4
inconsistency in this Agreement in the manner and to the extent it shall deem
expedient to carry the Plan into effect, and it shall be the sole and final
judge of such expediency.
8. INCORPORATION OF PLAN PROVISIONS. This Agreement is made pursuant to
the Plan, the terms and conditions of which are hereby incorporated by
reference. Capitalized terms not otherwise defined herein have the meanings set
forth in the Plan. In the event of a conflict between the terms of this
Agreement and the Plan, the terms of the Plan shall govern, except that to the
extent that Section 1(e) of this Agreement conflicts with the Plan, such Section
1(e) shall govern.
9. MISCELLANEOUS. Words such as "herein", "hereof" and "hereunder" when
used in this Agreement shall refer to this Agreement as a whole unless the
context otherwise requires. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties hereto with respect to the subject matter hereof, and,
except as expressly provided herein, is not intended to confer upon any person
other than the parties hereto any rights or remedies. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
This Agreement may be amended or modified only in a written document executed by
both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Option
Agreement in duplicate as of the day and year first above written.
EMPLOYEE CYBERGUARD CORPORATION
-------------------------------- ----------------------------
