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EXHIBIT 4.3
FORCE COMPUTERS, INC.
STOCK OPTION AGREEMENT
Force Computers, Inc., a California corporation (the "Company"), has
granted to HANS XXXXXXX XXXXXX (the "Optionee"), an option (the "Option") to
purchase a total of 100,000 shares of Common Stock, at the price and on the
terms as provided herein.
Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Common Stock" shall mean the Common Stock of the Company.
(c) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee. Continuous Status
as an Employee shall not be considered interrupted in the case of sick leave,
military leave, or any other leave of absence approved by the Board or in case
of transfers between locations of the Company or between the Company, its
Parent, or any of its Subsidiaries or its Successors; provided that such leave
is for a period of not more than 90 days or reemployment upon the expiration
of such leave is guaranteed by contract or statute.
(d) "Employee" shall mean any person, including officers and
directors, employed by the Company or its Parent or any subsidiary or Successor
of the Company.
(e) "Optioned Stock" shall mean the Common Stock subject to the
Option granted hereunder.
(f) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 425(e) and (g) of the Internal
Revenue Code of 1986, as amended.
(g) "Share" shall mean a share of the Common Stock, as adjusted
in accordance with Section 15 of this Agreement.
(h) "Subsidiary" shall mean a "subsidiary corporation", whether
now or hereafter existing, as defined in Section 425(f) and (g) of the Internal
Revenue Code of 1986, as amended.
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1. Nature of the Option. This Option does not qualify for any special
tax benefits to the Optionee under the Internal Revenue code of 1996.
2. Exercise Price. The exercise price is $1.50 for each share of Common
Stock, which price is not less than the fair market value of a Share of Common
Stock on the date of grant of this Option.
3. Exercise of Option. This Option shall be exercisable during its term
in accordance with the terms hereof as follows:
a. Right to Exercise.
(i) Subject to subsections 3(a)(ii) and (iii), and Section
16, below, this Option shall vest and shall be exercisable cumulatively, as
follows: After the expiration of one year from the date of grant, 25% of the
Optioned Stock (i.e., 25,000 shares), and thereafter at the rate of 2.0833% of
the Optioned Stock (i.e. 2,083.33 shares) for each month which has expired
after the date of grant of the Option.
Provided, however, that this Option, at the election of the
Optionee, may be exercised in whole or in part at any time, provided that the
Optionee shall execute, as a condition to any exercise of this Option with
respect to Shares which have not yet vested under the above schedule, the
Restricted Stock Purchase Agreement attached hereto as Exhibit A.
(ii) This Option may not be exercised for a fraction of a
Share.
(iii) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed by
Sections 7, 8 and 9 below.
(b) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise the Option, the
number of Shares in respect of which the Option is being exercised, and such
other representations and agreements as to the holder's investment intent with
respect to such Shares as may be required by the Company. Such written notice
shall be signed by the Optionee and shall be delivered in person or by
certified mail to the Secretary of the Company. The written notice shall be
accompanied by payment of the exercise price.
No Shares will be issued pursuant to the exercise of this Option unless
such issuance and such exercise shall comply with all relevant provisions of
law and the requirements of any stock exchange upon which the Shares may then
be listed. Assuming such
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compliance, the Shares shall be considered transferred to the Optionee on the
date on which the Option is exercised with respect to such Shares.
This Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company at its principal business office in
accordance with the terms of this Option by the person entitled to exercise the
Option and full payment for the Shares with respect to which the Option is
exercised has been received by the Company. Full payment may, as authorized by
the Board, consist of any consideration and method of payment allowable under
Section 5 below. Until the issuance (as evidenced by the appropriate entry on
books of the Company or of a duly authorized transfer agent of the Company) of
the stock certificate evidencing such Shares, which shall occur without
unnecessary delay, no right to vote or receive dividends or any other rights as
a shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued.
4. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Optionee shall, concurrently with the exercise of all or any portion of this
Option, deliver to the Company his Investment Representation Statement in the
form attached hereto as Exhibit B.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(i) cash;
(ii) check; or
(iii) surrender of other Shares of Common Stock of the Company
of a value equal to the exercise price of the Shares as to which the Option is
being exercised.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule
under Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G")
as promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation
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and warranty to the Company as may be required by any applicable law or
regulation.
7. Termination of Status as an Employee. If Optionee ceases to serve as
an Employee, he may, but only within thirty (30) days after the date he ceases
to be an Employee (but in no event later than the date of expiration of this
Option as set forth in Section 11 below), exercise this Option to the extent
that he was entitled to exercise it at the date of such termination. To the
extent that he was not entitled to exercise this Option at the date of such
termination, or if he does not exercise this Option within the time specified
herein, the Option shall terminate.
8. Disability of Optionee. Notwithstanding the provisions of Section 7
above, if Optionee is unable to continue his employment relationship with the
Company as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the Code), he may, but only within six (6) months from the
date of termination of employment (but in no event later than the date of
expiration of this Option as set forth in Section 11 below), exercise this
Option to the extent he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option at
the date of termination, or if he does not exercise such Option (which he was
entitled to exercise) within the time specified herein, the Option shall
terminate.
9. Death of Optionee. In the event of the death of the Optionee:
(i) during the term of this Option and while an Employee and
having been in Continuous Status as an Employee since the date of grant of the
Option, the Option may be exercised, at any time within six (6) months following
the date of death (but in no event later than the date of expiration of this
Option as set forth in Section 11 below), by Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent of the right to exercise that would have accrued had Optionee
continued living and remained in Continuous Status as an Employee six (6) months
after the date of death; or
(ii) within thirty (30) days after the termination of
Optionee's Continuous Status as an Employee, the Option may be exercised, at
any time within six (6) months following the date of death (but in no event
later than the date of expiration of this Option as set forth in Section 11
below), by Optionee's estate or by a person who acquired the right to exercise
the Option by bequest or inheritance, but only to the extent of the right to
exercise that had accrued at the date of termination.
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10. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by him. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
11. Term of Option. This Option may not be exercised more than five (5)
years and one (1) day from the date of grant of this Option, and may be
exercised during such term only in accordance with the terms of this Option.
12. Repurchase of Unvested Shares. In the event that the Optionee has,
prior to the date of termination, exercised the Option as to Shares which have
not vested in accordance with Section 3(a)(i), the Shares which have not vested
as of the date of termination (or disability or six months after death, as the
case may be under Sections 8 or 9 hereof, respectively) shall be subject to the
Company's right to repurchase such Shares at their original exercise price set
forth in Section 2 hereof, in accordance with the terms of the Restricted Stock
Purchase Agreement attached hereto as Exhibit A.
13. Conditions upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of this Option unless the exercise of such Option and
the issuance and delivery of such Shares pursuant hereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
14. Reservation of Shares. During the term of this Option, the Company
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of this Option. The inability of the
Company to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
15. Adjustments Upon Changes in Capitalization. The number of Shares of
Common Stock covered by this Option, as well as the exercise price per Share,
shall be proportionately adjusted for any increase or decrease in the number of
outstanding Shares of Common Stock of the Company resulting from a stock split,
reverse
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stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of outstanding Shares of
Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration".
Such adjustment shall be made by the Board, whose determination shall be final,
binding and conclusive. Except as specifically provided herein, no issuance by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of Shares of Common Stock
subject to this Option.
In the event of the proposed dissolution or liquidation of the Company,
this Option will terminate immediately prior to consummation of such proposed
action, unless otherwise provided by the Board. The Board may, in the exercise
of its sole discretion in such instances, declare that this Option shall
terminate as of the date fixed by the Board and give the Optionee the right to
exercise this Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company to
any person or entity, or a merger or consolidation to which the Company is a
party if the persons who were shareholders immediately prior to the effective
date of such merger or consolidation have beneficial ownership of less than
fifty percent (50%) of the total combined voting power for election of
directors of the surviving corporation following the effective date of such
merger or consolidation, then this option shall be assumed or an equivalent
option shall be substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless the board determines, in the
exercise of its sole discretion and in lieu of such assumption or substitution,
that the Optionee shall have the right to exercise this Option as to all of the
Optioned Stock, including Shares as to which the Option would not otherwise be
exercisable. If the Board makes this Option fully exercisable in lieu of
assumption or substitution as a result of any such event, the Board shall
notify the Optionee that the Option shall be fully exercisable for a period of
thirty (30) days from the date of such notice and prior to the effective date
of any such event, and this Option will terminate upon the expiration of such
period.
16. Governing Law. This Stock Option Agreement shall be governed by and
construed in accordance with the laws of the State of California.
17. Entire Agreement. This Stock Option Agreement constitutes the
entire agreement between the parties regarding the
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subject matter hereof and supersedes all prior written or oral agreements,
understandings, or negotiations between the parties with respect to the subject
matter hereof. This Stock Option Agreement may be modified or amended only by a
written document executed by the Company and the Optionee subsequent to the
date of this Option.
IN WITNESS WHEREOF, the Company and the Optionee have signed this Stock
Option Agreement as of the date of grant hereof.
DATE OF GRANT: September 1, 1988
FORCE COMPUTERS, INC.
a California corporation
By: /s/ Xxxx X. Xxxxxxxx
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Title: President
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Optionee acknowledges receipt of a copy of this Stock Option Agreement, and
represents that he is familiar with the terms and provisions thereof, and
hereby accepts this Option subject to all of the terms and provisions thereof.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Board upon any questions arising under this Stock
Option Agreement.
Dated: October 1, 1988
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/s/ Hans Xxxxxxx Xxxxxx
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Optionee
HANS XXXXXXX XXXXXX
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[INTENTIONALLY LEFT BLANK]
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FORCE COMPUTERS, INC.
AMENDMENT TO STOCK OPTION AGREEMENT
This Amendment dated as of August 31, 1992, is made to the Force
Computers Stock Agreement dated September 1, 1988 (the "Stock Option
Agreement") between Force Computers, Inc., a California corporation ("Force
California") and Xxxxxxx Xxxxxx (the "Optionee").
R E C I T A L S
WHEREAS, effective as of May 6, 1992, Force California was merged with
and into Force Computers, Inc., a Delaware corporation (the "Company") whereby
all outstanding options under the 1984 Incentive Stock Option Plan were assumed
by the Company, and
WHEREAS, pursuant to the Stock Option Agreement, the Optionee was
granted an option under the Company's 1984 Incentive Stock Option Plan (the
"Plan") to purchase an aggregate of 100,000 shares of the Company's Common
Stock at an exercise price of $1.50 per share.
WHEREAS, the Plan provides that options may be granted for a term of up
to 10 years unless otherwise provided in the Stock Option Agreement. The Stock
Option Agreement presently provides that the term of the option is five years.
WHEREAS, the Company and the Optionee desire to amend paragraph 11 of
the Stock Option Agreement to provide that the term of the option shall be for
10 years.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
1. Section 11 of the Stock Option Agreement is hereby amended in
its entirety to read as follows:
"11. Term of Option. This Option may not be exercised more
than ten (10) years (five years if Optionee owns, immediately
before this Option is granted, stock representing more than 10
percent of the total combined voting power of all classes of
stock of the Company or of
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any Parent or Subsidiary) from the date of grant of this Option,
and may be exercised during such terms only in accordance with
the Plan and the terms of this Option."
2. Except as specifically amended above, all of the terms and
conditions of the Stock Option Agreement and the Plan shall remain in full
force and effect without any change by reason of this Amendment.
IN WITNESS WHEREOF, the Company and the Optionee has executed this
Amendment as of the date first above written.
FORCE COMPUTERS, INC.
By /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, President
OPTIONEE:
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
