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Exhibit 10.4
TIGERA GROUP, INC.
Agreement Relating to Nonqualified Stock Options
Pursuant to the 1996 Stock Incentive Plan
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Option granted as of _____________ (hereinafter referred to as the
"Date of Grant"), by TIGERA GROUP, INC. (the "Corporation") to _________________
(the "Grantee"):
1. DEFINITIONS. The following terms, as used herein, shall have the
meanings set forth below:
(a) "Cause" shall mean by reason of any of the following: (1)
proven or admitted: (i) embezzlement, or (ii) material dishonest misuse of
Corporation funds or assets; (2) an admitted or proven act constituting a felony
or misdemeanor (other than minor offenses such as traffic violations) or
conviction for such act; (3) deliberate and unwarranted disclosure of
Corporation confidential information; (4) violation of any non-competition or
confidentiality covenants contained in any agreement between the Grantee and the
Corporation or any of its Subsidiaries; (5) continued conduct materially adverse
to the interests of the Corporation which does not cease within thirty (30) days
of written notice from an officer of the Corporation; (6) repeated material
failure by the Grantee, after written warning by an officer of the Corporation,
to perform the duties of his employment (including without limitation material
failure to follow or comply with the reasonable and lawful directives of an
officer of the Corporation); or (7) breach of any statutory or common law
fiduciary duty of loyalty to the Corporation which is not cured within thirty
(30) days of written notice from an officer of the Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the committee established by the
Board of Directors of the Corporation pursuant to the Plan to administer the
Plan.
(d) "Fair Market Value" shall have the meaning set forth in
the Plan.
(e) "Incentive Stock Option" shall mean an option that is
intended to qualify for special federal income tax treatment under Section 421
and 422 of the Code.
(f) "Nonqualified Stock Option" shall mean an option that is
not an Incentive Stock Option.
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(g) "Notice" shall have the meaning set forth in Section 4(c)
hereof.
(h) "Option" shall have the meaning set forth in Section 2
hereof.
(i) "Option Period" shall have the meaning set forth in
Section 4(a) hereof.
(j) "Option Price" shall have the meaning set forth in Section
3 hereof.
(k) "Plan" shall mean the Corporation's 1996 Stock Incentive
Plan.
(l) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(m) "Shares" shall mean shares of the Common Stock, par value
$0.01 per share, of the Corporation.
(n) "Subsidiary" shall mean any direct or indirect
majority-owned subsidiary of the Corporation.
2. THE OPTION.
(a) The Corporation hereby grants to the Grantee, effective on
the Date of Grant, a stock option (the "Option") to purchase, on the terms and
conditions herein set forth, up to ________ of the Corporation's fully paid,
non-assessable Shares at the option exercise price set forth in Section 3 below.
(b) The Option is granted pursuant to the Plan, and is subject
in all respects to the approval of the Plan by the stockholders of the
Corporation. A copy of the Plan is delivered herewith by the Corporation and
receipt thereof is acknowledged by the Grantee. The Option and this Option
Agreement are subject in all respects to the terms and conditions of the Plan,
which terms and conditions are incorporated herein by reference and which the
Grantee is by acceptance of the Option deemed to accept. Notwithstanding
anything in this Option Agreement to the contrary, unless and until the Plan has
been approved by the stockholders of the Corporation the Option shall not be
exercisable and the Grantee shall have no rights hereunder.
(c) The Option is an Nonqualified Stock Option.
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(d) Notwithstanding anything to the contrary contained herein,
in the event Connectivity Products Incorporated, a Delaware corporation ("CPI"),
neither is on December 8, 1996, nor had at any time prior to December 8, 1996
been, a Subsidiary of the Corporation, then this Option (or any unexercisable
portion thereof) shall expire on such date and shall cease to be exercisable.
3. THE PURCHASE PRICE. The purchase price of the Shares shall be
$ _____ per share, the Fair Market Value in the Date of Grant (the "Option
Price").
4. EXERCISE OF OPTION.
(a) Except as otherwise provided in the Plan and this Option
Agreement, the Option is exercisable over a period of ten years from the Date of
Grant (the "Option Period") in accordance with the following schedule (the
"Vesting Schedule"):
PERCENT OF SHARES SUBJECT
DATE TO OPTION PURCHASABLE (THE
"VESTED PORTION")
From sixteen (16) months after the
Date of Grant to twenty-eight (28)
months after the Date of Grant. 20%
From twenty-eight (28) months after
the Date of Grant to forty (40)
months after the Date of Grant. 40%
From forty (40) months after the
Date of Grant to fifty-two (52)
months after the Date of Grant. 60%
From fifty-two (52) months after
the Date of Grant to sixty-four (64)
months after the Date of Grant. 80%
From sixty-four (64) months after
the Date of Grant to the expiration
of the Option. 100%
Except as otherwise provided herein, the Option may be exercised from time to
time during the Option Period as to the Vested Portion of this Option, or any
lesser amount thereof, as long as the Grantee performs services as an officer,
director, employee or consultant for the Corporation or any of its Subsidiaries.
Notwithstanding anything to the contrary contained herein, except as provided by
subsection 4(f), the Option may not be exercised, in whole or in part, prior to
July 8, 1999. If the Grantee's services to the Corporation or any Subsidiary are
terminated for
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any reason other than (i) the Grantee's death or disability, (ii) the Grantee's
termination for Cause or (iii) Grantee's resignation from his positions with the
Corporation, then this entire Option may be exercised, without regard to the
Vesting Schedule, during the period of ninety (90) days (unless the Committee,
in its discretion, shall specify a longer period) commencing on the later of (i)
the date of such termination or (ii) July 8, 1999, so long as the Option Period
has not expired. If the Grantee shall die or become disabled within the meaning
of Section 22(e)(3) of the Code while still performing such services for the
Corporation or any of its Subsidiaries, this entire Option shall be exercisable,
without regard to the Vesting Schedule, and may be exercised during the period
commencing on the later of (i) the date of the Grantee's death or the date he or
she first becomes disabled, as the case may be, and (ii) July 8, 1999, and
ending on the earlier of the first anniversary of such date and the expiration
of the Option Period, after which period this Option shall expire and shall
cease to be exercisable. In the event of the death of the Grantee, this Option
may be exercised by the person or persons entitled to do so under the Grantee's
will (a "legatee"), or, if the Grantee shall fail to make testamentary
disposition of this Option, or shall die intestate, by the Grantee's legal
representative (a "legal representative"). In the event that (i) the Grantee's
services to the Corporation or any Subsidiary are terminated for Cause or (ii)
the Grantee resigns from his positions with the Corporation (each, a "Cessation
Date"), then the Vested Portion of this Option may be exercised during the
period of ninety (90) days (unless the Committee, in its discretion, shall
specify a longer period) after the later of (i) the date such performance ceases
or (ii) July 8, 1999, so long as the Option Period has not expired.
Notwithstanding anything to the contrary contained herein, in the event that (i)
the Grantee's services to the Corporation or any Subsidiary are terminated by
the Company for any reason prior to July 8, 1996 and (ii) on the date of such
termination, CPI is or has at any time been a Subsidiary of the Corporation,
then such termination shall for purposes of this Option Agreement be deemed to
have occurred on July 8, 1996.
(b) If this Option shall extend to 100 or more Shares, then
this Option may not be exercised for less than 100 Shares at any one time, and
if this Option shall extend to less than 100 Shares, then this Option must be
exercised for all such Shares at one time.
(c) Not less than five days nor more than thirty days prior to
the date upon which all or any portion of the Option is to be exercised, the
person entitled to exercise the Option shall deliver to the Corporation written
notice in substantially the form attached as an Exhibit hereto (the "Notice") of
his election to exercise all or a part of the Option, which Notice shall specify
the date for the exercise of the Option and the number of Shares in respect of
which the Option is to be exercised. The date specified in the Notice shall be a
business day of the Corporation.
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(d) On the date specified in the Notice, the person entitled
to exercise the Option shall pay to the Corporation the Option Price of the
Shares in respect of which the Option is exercised and the amount of any
applicable Federal and/or state withholding tax or employment tax. The Option
Price shall be paid in full at the time of purchase, (i) in cash or by certified
check (ii) with shares of the Common Stock of the Corporation which have been
owned by the Grantee for at least six months prior to the exercise of the Option
or (iii) if and to the extent the Corporation may lawfully do so, by delivery of
a promissory note for same or all of that portion of the Option Price exceeding
the amount determined to be capital pursuant to Section 145 of the Delaware
General Corporation Law, the terms of which note shall be determined by the
Committee. The value of any shares of Common Stock delivered by the Grantee in
payment of the Option Price shall be the Fair Market Value of such shares. If
the Option is exercised in accordance with the provisions of the Plan and this
Option Agreement, the Corporation shall deliver to such person certificates
representing the number of Shares in respect of which the Option is being
exercised which Shares or other securities shall be registered in his or her
name.
(e) This Option is not exercisable after the expiration of ten
years from the Date of Grant.
(f) Notwithstanding the provisions of subsection 4(a), in the
event that at any time during the term hereof (but only if after CPI becomes a
subsidiary of the Corporation): (i) CPI sells or otherwise disposes of all or
substantially all of its assets, or (ii) there is a change in control of the
Corporation such that a majority of the outstanding voting capital stock of the
Corporation is owned by a person or entity or "group" (as defined in Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
that is not on the date hereof a holder of 5% or more of the outstanding shares
of the Corporation's common stock, or (iii) the Corporation is merged into or
consolidated with any other person (other than a direct or indirect subsidiary
of or corporation or other entity controlled by the Corporation) or any other
person (other than a direct or indirect subsidiary of or corporation or other
entity controlled by the Corporation) is merged into or consolidated with the
Corporation, or (iv) the Corporation sells or otherwise disposes of all or
substantially all of its assets, or (v) the Corporation is liquidated or
dissolved, then in any such event, the Option shall become immediately
exercisable at the election of the Grantee as to all or any part of the Shares
not theretofore issued and sold hereunder. The Corporation shall provide the
Grantee with at least 30 days' notice prior to the consummation of any of the
events referred to in the preceding sentence, during which period the Grantee
may so exercise the Option. If not so exercised, this Option shall expire and
terminate at the end of such 30-day period.
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5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GRANTEE.
(a) The Grantee represents and warrants that he is acquiring
this Option and, in the event this Option is exercised, the Shares (unless the
Shares are subject to a then effective registration statement under the
Securities Act), for investment, for his or her own account and not with a view
to the distribution thereof, and that he or she has no present intention of
disposing of this Option or the Shares (unless the Shares are subject to a then
effective registration statement under the Securities Act) or any interest
therein or sharing ownership thereof with any other person or entity.
(b) The Grantee agrees that he or she will not offer, sell,
hypothecate, transfer or otherwise dispose of any of the Shares unless either:
(i) A registration statement covering the Shares which are to
be so offered has been filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act and such
sale, transfer or other disposition is accompanied by a prospectus
relating to a registration statement which is in effect under the
Securities Act covering the Shares which are to be sold, transferred
or otherwise disposed of and meeting the requirements of Section 10
of the Securities Act; or
(ii) Counsel satisfactory to the Corporation renders a reasoned
opinion in writing and addressed to the Corporation, satisfactory in
form and substance to the Corporation and its counsel, that in the
opinion of such counsel such proposed sale, offer, transfer or other
disposition of the Shares is exempt from the provisions of Section 5
of the Securities Act in view of the circumstances of such proposed
offer, sale, transfer or other disposition.
(c) The Grantee acknowledges that (i) the Shares and this
Option constitute "securities" under the Securities Act and/or the Exchange Act,
and/or the Rules and Regulations promulgated under said acts; (ii) the Shares
may not be transferred until such Shares are subsequently registered under the
Securities Act or an exemption from such registration is available; and (iii)
the Corporation is not under any obligation with respect to the registration of
the Shares.
(d) The Grantee acknowledges and agrees that the certificate or
certificates representing the Shares shall have an appropriate legend referring
to the terms of this Option.
(e) The Grantee acknowledges and agrees that he or she, or his
or her legatee or legal representative, as the case may be and as defined above,
may be required to make an
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appropriate representation at the time of any exercise of this Option in form
and substance similar to the representations contained herein, relating to the
Shares then being purchased.
(f) The Grantee acknowledges that, in the event he ceases to
perform services for the Corporation or its Subsidiaries, his or her rights to
exercise this Option are restricted as set forth in Section 4(a) above.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CORPORATION.
(a) The Corporation represents and warrants that this Option
has been duly granted by the Committee, subject to approval of the Plan by the
stockholders of the Corporation.
(b) The Corporation represents and warrants that, upon the
approval of the Plan by the stockholders of the Corporation, the Shares will be
reserved for issuance upon the exercise of this Option.
(c) The Corporation represents and warrants that it is
currently eligible to file registration statements on Form S-3 and Form S-8
under the Securities Act.
7. SUCCESSORS AND ASSIGNS. This Option Agreement shall be binding
upon and shall inure to the benefit of any successor or assign of the
Corporation and, to the extent herein provided, shall be binding upon and inure
to the benefit of the Grantee's legatee or legal representative, as defined
above.
8. ADJUSTMENT OF OPTIONS.
(a) The number of Shares issuable upon exercise of this Option,
or the amount and kind of other securities issuable in addition thereto or in
lieu thereof upon the occurrence of the events specified in Section 1.5 of the
Plan, shall be determined and subject to adjustment, as the case may be, in
accordance with the procedures therein specified.
(b) Fractional shares resulting from any adjustment in options
pursuant to this Section may be settled in cash or otherwise as the Committee
shall determine. Notice of any adjustment in this Option shall be given by the
Corporation to the holder of this Option and such adjustment (whether or not
such notice is given) shall be effective and binding for all purposes of the
Plan.
9. EXERCISE AND TRANSFERABILITY OF OPTION. During the lifetime of
the Grantee, this Option is exercisable only by him or her and shall not be
assignable or transferable by him or her
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and no other person shall acquire any rights therein. If the Grantee, while
still employed by the Corporation or any of its Subsidiaries, shall die within
the Option Period, his or her legatee or legal representative shall have the
rights provided in Section 4(a) above.
10. GENERAL PROVISIONS. Nothing contained in this Option Agreement
shall confer upon the Grantee any right to continue in the employ of the
Corporation or shall in any way affect the right and power of the Corporation to
dismiss or otherwise terminate the employment of the Grantee at any time for any
reason with or without cause. This Option Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
contracts entered into and to be performed wholly within such state.
If the foregoing is in accordance with the Grantee's understanding
and accepted and agreed by the Grantee, the Grantee may so confirm by signing
and returning the duplicate of this Option Agreement provided for that purpose.
TIGERA GROUP, INC.
By_______________________________________
Name:
Title:
The foregoing is in accordance with my understanding and is hereby confirmed and
agreed to as of the Date of Grant.
__________________________________________
Name:
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EXHIBIT
NOTICE OF EXERCISE
DATE
The undersigned hereby gives notice to Tigera Group, Inc., a Delaware
corporation (the "Corporation"), of his intention to exercise his right to
purchase the number of Shares set forth below of the Common Stock of the
Corporation, at the exercise price and on the date set forth below, pursuant to
the Nonqualified Stock Option (the "Option") granted to the undersigned on March
8, 1996, and to pay the purchase price thereof, plus any applicable federal or
state withholding or employment taxes, by means of [the undersigned's check]
[other method of payment] which the undersigned is delivering to the Corporation
herewith pursuant to the terms of the Option.
Print Name:__________________________________
Date of Exercise:____________________________
Number of Shares
to be Purchased:__________________________
Exercise Price Per Share:____________________
Aggregate Exercise Price:____________________
_____________________________________________
(Signature)
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