Exhibit (e)(20)
STOCK OPTION AGREEMENT
FOR OPTION GRANTED TO XXXXXX XXXXXX
ON [DATE]
Pursuant to the Notice of Grant and Stock Options and this Stock Option
Agreement, the Company has granted you an option to purchase the number of
shares of Common Stock indicated in the Notice of Grant and Stock Options at the
exercise price indicated in the Notice of Grant and Stock Options.
Your option is granted in connection with and in furtherance of the
Company's compensatory benefit plan for the Company's employees (including
officers), directors or consultants, and is intended to comply with the
provisions of Rule 701 promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"). Defined
terms not explicitly defined in this Stock Option Agreement but defined in the
Plan shall have the same definitions as in the Plan.
1. VESTING. Subject to the limitations contained herein, your option will vest
as provided in the Notice of Grant and Stock Options, provided that vesting will
cease upon the termination of your Continuous Status as an Employee, Director or
Consultant.
2. METHOD OF PAYMENT.
(a) PAYMENT OPTIONS. Payment of the exercise price is due in full upon
exercise of all or any part of your option. You may elect, to the extent
permitted by applicable law and the Notice of Grant and Stock Options, to make
payment of the exercise price under one of the following alternatives:
(i) By cash or check;
(ii) Payment pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board which, prior to the issuance of Common
Stock, results in either the receipt of cash (or a check) by the Company or the
receipt of irrevocable instructions to pay the aggregate exercise price to the
Company from the sales proceeds; or
(iii) Payment by a combination of the above methods.
3. WHOLE SHARES. Your option may only be exercised for whole shares.
4. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained
herein, your option may not be exercised unless the shares issuable upon
exercise of your option are then registered under the Securities Act or, if such
shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the
Securities Act.
1.
5. TERM. The term of your option commences on the date of grant and expires upon
the earliest of:
(i) the Expiration Date indicated in the Notice of Grant and Stock
Options.
(ii) ten (10) years after the Date of Grant; or
(iii) three (3) months after the termination of your Continuous
Status as an Employee, Director or Consultant for any reason other than death or
total and permanent disability (as determined by the Company in its sole
discretion), unless: (a) during any part of such three (3) month period, the
option is not exercisable solely because of the condition set forth in Section 5
above, in which event the option shall not expire until the earlier of the
Expiration Date or until it shall have been exercisable for an aggregate period
of three (3) months after the termination of Continuous Status as an Employee,
Director or Consultant; (b) exercise of the option within three (3) months after
termination of your Continuous Status as an Employee, Director or Consultant
would result in liability under Section 16(b) of the Securities Exchange Act of
1934, in which event the option will expire on the earliest of (i) the
Expiration Date, (ii) the tenth (10th) day after the last date upon which
exercise would result in such liability or (iii) six (6) months and ten (10)
days after the termination of your Continuous Status as an Employee, Director or
Consultant; or (c) such termination of employment is due to your disability or
death, in which event the option shall terminate on the earlier of the
termination date set forth above or twelve (12) months following such
termination of employment.
To obtain the federal income tax advantages associated with an
"incentive stock option," the Code requires that at all times beginning on the
date of grant of the option and ending on the day three (3) months before the
date of the option's exercise, you must be an employee of the Company or an
affiliate of the Company, except in the event of your death or permanent and
total disability. The Company cannot guarantee that your option will be treated
as an "incentive stock option" if you exercise your option more than three (3)
months after the date your employment with the Company terminates.
6. EXERCISE.
(a) You may exercise the vested portion of your option during its term
(and the unvested portion of your option if the Notice of Grant of Stock Options
so permits) by delivering a notice of exercise (in a form designated by the
Company) together with the exercise price to the Secretary of the Company, or to
such other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require.
(b) By exercising your option you agree that:
(i) as a condition to any exercise of your option, the Company may
require you to enter an arrangement providing for the payment by you to the
Company of any tax withholding obligation of the Company arising by reason of
(1) the exercise of your option; (2) the lapse of any substantial risk of
forfeiture to which the shares are subject at the time of exercise; or (3) the
disposition of shares acquired upon such exercise;
2.
(ii) you will notify the Company in writing within fifteen (15) days
after the date of any disposition of any of the shares of Common Stock issued
upon exercise of your option that occurs within two (2) years after the date of
your option grant or within one (1) year after such shares of Common Stock are
transferred upon exercise of your option; and
(iii) the Company (or a representative of the underwriters) may, in
connection with the first underwritten registration of the offering of any
securities of the Company under the Securities Act, require that you not sell or
otherwise transfer or dispose of any shares of Common Stock or other securities
of the Company during such period (not to exceed one hundred eighty (180) days)
following the effective date of the registration statement of the Company filed
under the Securities Act as may be requested by the Company or the
representative(s) of the underwriters. You further agree that the Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such period.
7. TRANSFERABILITY. Your option is not transferable, except by will or by the
laws of descent and distribution, and is exercisable during your life only by
you. Notwithstanding the foregoing, by delivering written notice to the Company,
in a form satisfactory to the Company, you may designate a third party who, in
the event of your death, shall thereafter be entitled to exercise your option.
8. RIGHT OF FIRST REFUSAL. Before any shares of Common Stock (the "Shares")
issued upon exercise of an option to you or any transferee (either being
sometimes referred to herein as the "Holder") may be sold or otherwise
transferred (including transfer by gift or operation of law), the Company shall
have an assignable right of first refusal to purchase the Shares on the terms
and conditions set forth in this Section 8 (the "Right of First Refusal").
(a) NOTICE OF PROPOSED TRANSFER. The Holder of the Shares shall deliver to
the Company a written notice (the "Notice") stating: (i) the Holder's bona fide
intention to sell or otherwise transfer the Shares; (ii) the name of each
proposed purchaser or other transferee (the "Proposed Transferee"); (iii) the
number of Shares to be transferred to each Proposed Transferee; and (iv) the
bona fide cash price or other consideration for which the Holder proposed to
transfer the Shares (the "Offered Price"); and the Holder shall offer to sell
the Shares at the Offered Price to the Company.
(b) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within thirty (30)
days after receipt of the Notice, the Company or its assignee may, by giving
written notice to the Holder, elect to purchase all (but not less than all) of
the Shares proposed to be transferred to any one or more of the Proposed
Transferees, at the Offered Price.
(c) PAYMENT. Payment of the purchase price shall be made, at the option of
the Company or its assignee, either (i) in cash (by check) or (ii) in the manner
and at the time(s) set forth in the Notice.
(d) HOLDER'S RIGHT TO TRANSFER. If all the Shares proposed in the Notice
to be transferred to a given Proposed Transferee are not purchased by the
Company and/or its assignee as provided in this Section 10, then the Holder may
sell or otherwise transfer such Shares to that
3.
Proposed Transferee at the Offered Price or at a higher price, provided that
such sale or other transfer is consummated within thirty (30) days after the
date of the Notice and provided further that any such sale or other transfer is
effected in accordance with any applicable securities laws. If the Shares
described in the Notice are not transferred to the Proposed Transferee within
such period, a new Notice shall be given to the Company, and the Company shall
again be offered the Right of First Refusal, before any Shares held by the
Holder may be sold or otherwise transferred.
(e) EXCEPTION FOR CERTAIN FAMILY TRANSFERS. Anything to the contrary
contained in this Section 8 notwithstanding, the transfer of any or all of the
Shares during the Optionee's lifetime or on the Optionee's death by will or
intestacy to Optionee's immediate family or to a trust for the benefit of
Optionee or Optionee's immediate family shall be exempt from the provisions of
this Section 8; provided that, as a condition to receiving the Shares, the
transferee or other recipient shall agree in writing to receive and hold the
Shares so transferred subject to the provisions of the Plan, and to transfer
such Shares no further except in accordance with the terms of the Plan. As used
herein, "immediate family" shall mean spouse, lineal descendant or antecedent,
father, mother, brother or sister.
(f) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First Refusal
shall terminate as to any Shares upon the first sale of Common Stock of the
Company to the general public pursuant to a registration statement filed with
and declared effective by the Securities and Exchange Commission (other than a
registration statement solely covering an employee benefit plan or corporate
reorganization).
9. OPTION NOT A SERVICE CONTRACT. Your option is not an employment contract and
nothing in your option shall be deemed to create in any way whatsoever any
obligation on your part to continue in the employ of the Company, or of the
Company to continue your employment with the Company. In addition, nothing in
your option shall obligate the Company or its stockholders, board of directors,
officers or employees to continue any relationship which you might have as a
director or consultant for the Company.
10. NOTICES. Any notices provided for in your option or the Plan shall be given
in writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the last address you
provided to the Company.
11. GOVERNING PLAN DOCUMENT. Your option is subject to all the provisions of the
Plan, the provisions of which are hereby made a part of your option, including
without limitation the provisions of the Plan relating to option provisions, and
is further subject to all interpretations, amendments, rules and regulations
which may from time to time be promulgated and adopted pursuant to the Plan. In
the event of any conflict between the provisions of your option and those of the
Plan, the provisions of the Plan shall control.
12. ACCELERATED VESTING. Your option is subject to the "Change in Control"
provisions described in item number three (3) of your employment letter dated
March 21, 2000.
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