EXHIBIT 4.08
FORM OF NON-PLAN STOCK OPTION GRANT
NEW EMPLOYEE NO.
MACROMEDIA, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
This Stock Option Agreement ("AGREEMENT") is made and entered into
as of the Date of Grant set forth below (the "DATE OF GRANT") by and between
Macromedia, Inc., a Delaware corporation (the "COMPANY"), and the Optionee
named below ("OPTIONEE"). Capitalized terms not defined herein shall have the
meanings ascribed to them in the Company's 1992 Equity Incentive Plan (the
"PLAN"), as amended through April 1, 1999.
Optionee:
Social Security Number:
Total Option Shares:
Exercise Price Per Share:
Date of Grant:
Vesting Start Date:
Expiration Date:
(unless terminated earlier pursuant to Section 3 below)
1. GRANT OF OPTION. The Company hereby grants to Optionee an
option (the "OPTION") to purchase the total number of shares of Common Stock
at $0.001 par value, of the Company set forth above as Total Option Shares
(the "SHARES") at the Exercise Price Per Share set forth above (the "EXERCISE
PRICE"), subject to all of the terms and conditions of this Agreement. This
Option does not meet the incentive Stock Option requirements of Section
422(b) of the Internal Revenue Code and is intended to be a "nonqualified
stock option".
2. VESTING AND EXERCISE PERIOD.
2.1 VESTING AND EXERCISE PERIODS OF OPTION. Provided
Optionee continues to provide services to the Company or any Subsidiary,
Parent or Affiliate of the Company throughout the specified period, the
Option shall become exercisable as to 25% of the Total Option Shares on the
date twelve months after the Vesting Start Date specified above and shall be
exercisable as to an additional 2.0833% of the Total Option Shares at the end
of each full succeeding month thereafter until this Option is exercisable
with respect to 100% of the Shares.
2.2 EXPIRATION. The Option shall expire on the earlier
of Expiration Date set forth above or the last day of the applicable
post-termination exercise period set forth in Section 3.1 and 3.2 below and
must be exercised, if at all, on or before such date.
3. TERMINATION. The following provisions shall govern
the exercise of the Option in the event Optionee is Terminated.
3.1 TERMINATION FOR ANY REASON EXCEPT DEATH
OR DISABILITY. If Optionee is Terminated for any reason, except death or
Disability, notwithstanding any other provision in this Agreement to the
contrary, the Option, to the extent that it would have been exercisable on
Optionee's Termination Date pursuant to Section 2.1 of this Agreement, may be
exercised by the Holder no later than ninety (90) days after the Termination
Date, but in any event no later than the Expiration Date.
3.2 TERMINATION BECAUSE OF DEATH OR
DISABILITY. If Optionee is Terminated because of his of her death or
Disability of Optionee , the Option, to the extent that it is exercisable on
Optionee's Termination Date, may be exercised by the Holder no later than
twelve (12) months after the Termination Date, but in any event no later than
the Expiration Date.
3.3 NO OBLIGATION TO EMPLOY. Nothing in this
Agreement shall confer on Optionee any right to continue in the employ of, or
other relationship with, the Company or any Parent, Subsidiary or Affiliate
of the Company, or limit in any way the right of the Company or any Parent,
Subsidiary or Affiliate of the Company to terminate Optionee's employment or
other relationship at any time, with or without cause.
4. MANNER OF EXERCISE.
4.1 STOCK OPTION EXERCISE AGREEMENT. To
exercise this Option, the Holder must deliver to the Company an executed
stock option exercise agreement in the form attached hereto as EXHIBIT A, or
in such other form as may be approved by the Company from time to time (the
"EXERCISE AGREEMENT"), which shall set forth, INTER ALIA, Holder's election
to exercise the Option, the number of Shares being purchased, any
restrictions imposed on the Shares and any representations, warranties and
agreements regarding Holder's investment intent and access to information as
may be required by the Company to comply with applicable securities laws. If
someone other than Optionee exercises the Option, then such person must
submit documentation reasonably acceptable to the Company that such person
has the right to exercise the Option.
4.2 LIMITATIONS ON EXERCISE. The Option may
not be exercised unless such exercise is in compliance with all applicable
federal and state securities laws, as they are in effect on the date of
exercise. The Option may not be exercised as to fewer than 100 Shares unless
it is exercised as to all Shares as to which the Option is then exercisable.
4.3 PAYMENT. The Exercise Agreement shall be
accompanied by full payment of the Exercise Price for the Shares being
purchased in cash (by check), or where permitted by law:
(a) in case of exercise by the Optionee, by cancellation of
indebtedness of the Company to the Optionee;
(b) by surrender of shares of the Company's Common Stock that
either: (1) have been owned by the Holder for more than six
(6) months and have been paid for within the meaning of SEC
Rule 144 and, if such shares were purchased from the Company
by use of a promissory note, such note has been fully paid
with respect to such shares or (2) were obtained by the Holder
in the open public market; and (3) are clear of all liens,
claims, encumbrances or security interests;
(c) in case of exercise by the Optionee, by waiver of compensation
due or accrued to Optionee for services rendered;
(d) provided that a public market for the Company's stock exists,
(1) through a "same day sale" commitment from the Holder and a
broker-dealer that is a member of the National Association of
Securities Dealers (a "NASD DEALER") whereby the Holder
irrevocably elects to exercise the Option and to sell a
portion of the Shares so purchased to pay for the Exercise
Price and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise Price directly
to the Company, OR (2) through a "margin" commitment from
Optionee and a NASD Dealer whereby Optionee irrevocably elects
to exercise the Option and to pledge the Shares so purchased
to the NASD Dealer in a margin account as security for a loan
from the NASD Dealer in the amount of the Exercise Price, and
whereby the NASD Dealer irrevocably commits upon receipt of
such Shares to forward the Exercise Price directly to the
Company; or
(e) by any combination of the foregoing.
4.4 TAX WITHHOLDING. Prior to the issuance of the
Shares upon exercise of the Option, Optionee must pay or provide for any
applicable federal or state withholding obligations of the Company. If the
Committee permits, Optionee may provide for payment of withholding taxes upon
exercise of the Option by requesting that the Company retain Shares with a
Fair Market Value equal to the minimum amount of taxes required to be
withheld. In such case, the Company shall issue the net number of Shares to
the Holder by deducting the Shares retained from the Shares issuable upon
exercise.
4.5 ISSUANCE OF SHARES. Upon the exercise of the
Option in accordance with this Section 4, the Company shall issue the Shares
registered in the name of the Holder and shall deliver certificates
representing the Shares with the appropriate legends affixed thereto.
6. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of the
Option and the issuance and transfer of Shares shall be subject to compliance
by the Company and the Holder with all applicable requirements of federal and
state securities laws and with all applicable requirements of any stock
exchange on which the Company's Common Stock may be listed at the time of
such issuance or transfer. Optionee understands that the Company is under no
obligation to register or qualify the Shares with the Securities and Exchange
Commission, any state securities commission or any stock exchange to effect
such compliance.
7. TRANSFERABILITY OF OPTION. The Option shall be exercisable:
(a) during the Optionee's lifetime only by (i) Optionee, (ii) the Optionee's
guardian or legal representative, (iii) a Family Member of the Optionee who
has acquired the Option by Permitted Transfer; and (b) after Optionee's
death, by the legal representative of the Optionee's heirs or legatees. For
purposes of this Agreement "Holder" means one of the above persons to the
extent such person has or controls an interest in the Option at the time in
question.
8. TAX CONSEQUENCES. Set forth below is a brief summary as of
the Date of Grant of some of the federal and California tax consequences of
exercise of the Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO
CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR
DISPOSING OF THE SHARES.
8.1 EXERCISE OF NON-QUALIFIED STOCK OPTION. Optionee
will be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the fair market value of
the Shares on the date of exercise over the Exercise Price. The Company will
be required to withhold from Optionee's compensation or collect from Optionee
and pay to the applicable taxing authorities an amount equal to a percentage
of this compensation income at the time of exercise.
8.2 DISPOSITION OF SHARES. If the Shares are held for
more than twelve (12) months after the date of the transfer of the Shares
pursuant to the exercise of the Option, any gain realized on disposition of
the Shares will be treated as long term capital gain for federal and
California income tax purposes.
9. PRIVILEGES OF STOCK OWNERSHIP. The Holder shall not have
any of the rights of a stockholder with respect to any Shares until the
Holder exercises the Option and pays the Exercise Price and is issued the
Shares following such exercise.
10. INTERPRETATION. Any dispute regarding the interpretation of
this Agreement shall be submitted by Optionee or the Company to the Committee
for review. The resolution of such a dispute by the Committee shall be final
and binding on the Company, the Optionee and the Holder an anyone else with
an interest in the Option.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersede all prior undertakings and agreements
with respect to the subject matter hereof.
12. NOTICES. Any notice required to be given or delivered to
the Company under the terms of this Agreement shall be in writing and
addressed to the Corporate Secretary of the Company at its principal
corporate offices. Any notice required to be given or delivered to Optionee
shall be in writing and addressed to Optionee at the address indicated above
or to such other address as such party may designate in writing from time to
time to the Company. All notices shall be deemed to have been given or
delivered upon: personal delivery; three (3) days after
deposit in the United States mail by certified or registered mail (return
receipt requested); one (1) business day after deposit with any return
receipt express courier (prepaid); or one (1) business day after transmission
by facsimile.
13. SUCCESSORS AND ASSIGNS. The Company may assign any of its
rights under this Agreement. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding
upon Optionee and Optionee's heirs, executors, administrators, legal
representatives, successors and assigns and the Holder and the Holder's
heirs, executors, administrators, legal representatives, successors and
assigns.
14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California,
excluding that body of law pertaining to conflict of laws.
15. ACCEPTANCE. Optionee hereby acknowledges receipt of a copy
this Agreement. Optionee has read and understands the terms and provisions
thereof, and accepts the Option subject to all the terms and conditions of
this Agreement. Optionee acknowledges that there may be adverse tax
consequences upon exercise of the Option or disposition of the Shares and
that Optionee should consult a tax adviser prior to such exercise or
disposition.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in duplicate by its duly authorized representative and Optionee has
executed this Agreement in duplicate as of the Date of Grant.
MACROMEDIA, INC. OPTIONEE
By:
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Xxxxxx Xxxxxx, (Signature)
Executive Vice President and
Chief Financial Officer