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EXHIBIT 4.13
INCENTIVE STOCK OPTION AGREEMENT
CYBERGUARD CORPORATION
STOCK INCENTIVE PLAN
This Stock Option Agreement ("Agreement") is entered into as of the
____ day of ______, 1997, between CYBERGUARD CORPORATION (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"),
the Corporation hereby grants to the Employee an Incentive Stock Option (the
"Option"), that is intended to comply with Section 422 of the Internal Revenue
Code ("Code") to purchase an aggregate of ______ shares of Common Stock of the
Corporation at the price of $________ per share, subject to the following
conditions:
(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%).
(e) For the purposes of this Agreement, the definition of the
term "Change in Control" contained in Section 2 (c) of the Plan
shall be amended by deleting the percentage "80%" contained in such
Section 2 (c) and substituting in its place the percentage "30%". Upon
a Change in Control, any outstanding Option shall immediately become
exercisable. Notwithstanding the foregoing, if (i) individuals who
constitute the Incumbent Board continue to constitute in excess of
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forty percent (40%) of the Board, 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.
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. 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
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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 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 this Agreement shall govern.
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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.
CYBERGUARD CORPORATION EMPLOYEE
By:
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