Exhibit 4.15
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
VIVID PUBLISHING, INC.
1997 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
(Four Year Vesting with 90-Day Cliff)
Vivid Publishing, Inc., a California corporation (the "Company"), hereby
grants an option to purchase Shares of its common stock to the optionee named
below. The terms and conditions of the option are set forth in this cover sheet,
in the attachment and in the Company's 1997 Stock Option Plan (the "Plan").
Date of Option Grant:
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Name of Optionee:
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Optionee's Social Security Number:
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Number of Shares of
Common Stock Covered by Option:
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Exercise Price per Share: $
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Vesting Start Date:
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By signing this cover sheet, you agree to all of the terms and conditions
described in the attached Agreement and in the Plan, a copy of which is
also enclosed.
Optionee:
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(Signature)
Company:
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(Signature)
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Title:
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Attachment
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE,
AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS
PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
VIVID PUBLISHING, INC.
1997 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
(Four Year Vesting with 90-Day Cliff)
Incentive Stock Option This option is intended to be an incentive
stock option under section 422 of the Internal
Revenue Code and will be interpreted
accordingly.
Vesting Your right to exercise this option vests
monthly beginning on the Vesting Start Date,
as shown on the cover sheet, provided,
however, no portion of this option may be
exercised prior to the expiration of ninety
(90 days) from the Date of Grant, as shown on
the cover sheet. The number of Shares which
may be purchased under this option by you at
the Purchase Price shall be equal to the
difference between (i) the product (rounded to
the nearest integer) of the number of full
months of your continuous employment with the
Company (including all days of any approved
leaves of absence) from the Vesting Starting
Date times the number of Shares covered by
this option times .02083333, minus (ii) the
number of Shares purchased pursuant to this
Option prior to such exercise. The resulting
number of Shares will be rounded to the
nearest whole number. No additional Shares
will vest after your Company service has
terminated for any reason.
Notwithstanding anything to the contrary in
this Agreement, the vesting of this option is
conditioned upon the Company obtaining a
written waiver from the Leap Group ("Leap") of
any anti-dilution provisions in Leap's favor
set forth in the promissory note of the
Company issued to Leap on February 8, 1997,
which provisions might otherwise be triggered
by this option. In the event that Leap refuses
in writing to provide such waiver, or
otherwise attempts to assert such anti-
dilution rights, this option
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will automatically and immediately become
rescinded, null and void.
Term Your option will expire in any event at the
close of business at Company headquarters on
the day before the 10th anniversary of the
Date of Grant, as shown on the cover sheet.
(It will expire earlier if your Company
service terminates, as described below.)
Regular Termination If your service as an employee of the Company
(or any subsidiary) terminates for any reason
except death or Disability, then your option
will expire at the close of business at
Company headquarters on the 90th day after
your termination date.
Death If you die as an employee of the Company (or
any subsidiary), then your option will expire
at the close of business at Company
headquarters on the date 6 months after the
date of death. During that 6-month period,
your estate or heirs may exercise the vested
portion of your option.
Disability If your service as an employee of the Company
(or any subsidiary) terminates because of your
Disability, then your option will expire at
the close of business at Company headquarters
on the date 6 months after your termination
date.
"Disability" means that you are unable to
engage in any substantial gainful activity by
reason of any medically determinable physical
or mental impairment.
Leaves of Absence For purposes of this option, your service does
not terminate when you go on a bona fide leave
of absence that was approved by the Company in
writing, if the terms of the leave provide for
continued service crediting, or when continued
service crediting is required by applicable
law. However, for purposes of determining
whether your option is entitled to ISO status,
your service will be treated as terminating 90
days after you went on leave, unless your
right to return to active work is guaranteed
by law or by a contract. 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.
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Restrictions on Exercise The Company will not permit you to exercise
this option if the issuance of Shares at that
time would violate any law or regulation.
Notice of Exercise When you wish to exercise this option, you
must notify the Company by filing the proper
"Notice of Exercise" form at the address given
on the form. Your notice must specify how many
Shares you wish to purchase. Your notice must
also specify how your Shares should be
registered (in your name only or in your and
your spouse's names as community property or
as joint tenants with right of survivorship).
The notice will be effective when it is
received by the Company.
If someone else wants to exercise this option
after your death, that person must prove to
the Company's satisfaction that he or she is
entitled to do so.
Periods of Nonexercisability Any other provision of this Agreement
notwithstanding, the Company shall have the
right to designate one or more periods of
time, each of which shall not exceed 180 days
in length, during which this option shall not
be exercisable if the Company determines (in
its sole discretion) that such limitation on
exercise could in any way facilitate a
lessening of any restriction on transfer
pursuant to the Securities Act of 1933, as
amended (the "Securities Act") or any state
securities laws with respect to any issuance
of securities by the Company, facilitate the
registration or qualification of any
securities by the Company under the Securities
Act or any state securities laws, or
facilitate the perfection of any exemption
from the registration or qualification
requirements of the Securities Act or any
applicable state securities laws for the
issuance or transfer of any securities. Such
limitation on exercise shall not alter the
vesting schedule set forth in this Agreement
other than to limit the periods during which
this option shall be exercisable.
Form of Payment When you submit your notice of exercise, you
must include payment of the option price for
the Shares you are purchasing. Payment may be
made in one (or a combination) of the
following forms:
- Your personal check, a cashier's check or a
money order.
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- Common Shares which have already been owned
by you for any time period specified by the
Committee and which are surrendered to the
Company. The value of the Shares, determined
as of the effective date of the option
exercise, will be applied to the option price.
- To the extent that a public market for the
Shares exists as determined by the Company, by
delivery (on a form prescribed by the
Committee) of an irrevocable direction to a
securities broker to sell Shares and to
deliver all or part of the sale proceeds to
the Company in payment of the aggregate
Exercise Price.
Withholding Taxes You will not be allowed to exercise this
option unless you make acceptable arrangements
to pay any withholding or other taxes that may
be due as a result of the option exercise or
the sale of shares acquired upon exercise of
this option and the sale of the shares.
Restrictions on Resale By signing this Agreement, you agree not to
sell any option Shares at a time when
applicable laws, regulations or Company or
underwriter trading policies prohibit a sale.
In connection with any underwritten public
offering by the Company of its equity
securities pursuant to an effective
registration statement filed under the
Securities Act, including the Company's
initial public offering, you agree not to
sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer
for value or agree to engage in any of the
foregoing transactions with respect to any
shares without the prior written consent of
the Company or its underwriters, for such
period of time after the effective date of
such registration statement as may be
requested by the Company or such underwriters.
In order to enforce the provisions of this
paragraph, the Company may impose stop-
transfer instructions with respect to the
shares until the end of the applicable stand-
off period.
You represent and agree that the Shares to be
acquired upon exercising this option will be
acquired for investment, and not with a view
to the sale or distribution thereof.
In the event that the sale of Shares under the
Plan is not registered under the Securities
Act but an exemption is available which
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requires an investment representation or other
representation, you shall represent and agree
at the time of exercise that the Shares being
acquired upon exercising this option are being
acquired for investment, and not with a view
to the sale or distribution thereof, and shall
make such other representations as are deemed
necessary or appropriate by the Company and
its counsel.
The Company's In the event that you propose to sell, pledge
Right of First Refusal or otherwise transfer to a third party any
Shares acquired under this Agreement, or any
interest in such Shares, the Company shall
have the "Right of First Refusal" with respect
to all (and not less than all) of such Shares.
If you desire to transfer Shares acquired
under this Agreement, you must give a written
"Transfer Notice" to the Company describing
fully the proposed transfer, including the
number of Shares proposed to be transferred,
the proposed transfer price and the name and
address of the proposed transferee. The
Transfer Notice shall be signed both by you
and by the proposed new transferee and must
constitute a binding commitment of both
parties to the transfer of the Shares. The
Company shall have the right to purchase all,
and not less than all, of the Shares on the
terms of the proposal described in the
Transfer Notice (subject, however, to any
change in such terms permitted in the next
paragraph) by delivery of a notice of exercise
of the Right of First Refusal within 30 days
after the date when the Transfer Notice was
received by the Company. The Company's rights
under this Subsection shall be freely
assignable, in whole or in part.
If the Company fails to exercise its Right of
First Refusal within 30 days after the date
when it received the Transfer Notice, you may,
not later than 90 days following receipt of
the Transfer Notice by the Company, conclude a
transfer of the Shares subject to the Transfer
Notice on the terms and conditions described
in the Transfer Notice. Any proposed transfer
on terms and conditions different from those
described in the Transfer Notice, as well as
any subsequent proposed transfer by you, shall
again be subject to the Right of First Refusal
and shall require compliance with the
procedure described in the paragraph above. If
the Company exercises its Right of First
Refusal, the parties shall consummate the sale
of the Shares on the terms set forth in the
Transfer Notice within 60 days after the date
when the Company received the Transfer Notice
(or within such longer period as may have been
specified in the Transfer Notice); provided,
however, that in the event the Transfer Notice
provided that payment for the Shares was to be
made in a form other than lawful money paid at
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the time of transfer, the Company shall have
the option of paying for the Shares with
lawful money equal to the present value of the
consideration described in the Transfer
Notice.
The Company's Right of First Refusal shall
inure to the benefit of its successors and
assigns and shall be binding upon any
transferee of the Shares.
The Company's Right of First Refusal shall
terminate in the event that Stock is listed on
an established stock exchange or is quoted
regularly on the Nasdaq National Market.
Right of Repurchase Following termination of your employment for
any reason, the Company shall have the right
to purchase all of those Shares that you have
or will acquire under this option. If the
Company fails to provide you with written
notice of its intention to purchase such
Shares before or within 30 days of the date
the Company receives written notice from you
of your termination of employment, the
Company's right to purchase such Shares shall
terminate. If the Company exercises its right
to purchase such Shares, the Company will
consummate the purchase of such Shares within
60 days of the date of its written notice to
you. The purchase price for any Shares
repurchased shall be the higher of the Fair
Market Value of those Shares on the date of
purchase or the aggregate Exercise Price for
those Shares and shall be paid in cash. The
Company's right of repurchase shall terminate
in the event that Stock is listed on an
established stock exchange or is quoted
regularly on the Nasdaq National Market.
Transfer of Option Prior to your death, only you may exercise
this option. You cannot transfer or assign
this option. For instance, you may not sell
this option or use it as security for a loan.
If you attempt to do any of these things, this
option will immediately become invalid. You
may, however, dispose of this option in your
will.
Regardless of any marital property settlement
agreement, the Company is not obligated to
honor a notice of exercise from your spouse or
former spouse, nor is the Company obligated to
recognize such individual's interest in your
option in any other way.
Retention Rights Your option or this Agreement do not give you
the right to be retained by the Company (or
any subsidiaries) in any capacity. The Company
(and any subsidiaries) reserve the right to
terminate your service at any time and for any
reason.
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Shareholder Rights You, or your estate or heirs, have no rights
as a shareholder of the Company until a
certificate for your option Shares has been
issued. No adjustments are made for dividends
or other rights if the applicable record date
occurs before your stock certificate is
issued, except as described in the Plan.
Adjustments In the event of a stock split, a stock
dividend or a similar change in the Company
stock, the number of Shares covered by this
option and the exercise price per share may be
adjusted pursuant to the Plan. Your option
shall be subject to the terms of the agreement
of merger, liquidation or reorganization in
the event the Company is subject to such
corporate activity.
Legends All certificates representing the Shares
issued upon exercise of this option shall,
where applicable, have endorsed thereon the
following legends:
"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."
Applicable Law This Agreement will be interpreted and
enforced under the laws of the State of
California.
The Plan and Other The text of the Plan is incorporated in this
Agreement by reference.
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Agreements Certain capitalized terms used in this
Agreement are defined in the Plan.
This Agreement and the Plan constitute the
entire understanding between you and the
Company regarding this option. Any prior
agreements, commitments or negotiations
concerning this option are superseded.
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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