EXHIBIT 99.4
XXXXXX.XXX INC.
STOCK OPTION ASSUMPTION AGREEMENT
XXXXX.XXX, INC. CORPORATION
AMENDED AND RESTATED 1997 STOCK PLAN
Optionee:
STOCK OPTION ASSUMPTION AGREEMENT effective as of the 7th day of March 200
by Xxxxxx.xxx Inc., a Delaware corporation ("Xxxxxx.xxx").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding options to purchase shares of the common stock of xXxxx.xxx, Inc., A
Delaware corporation ("Xxxxx.xxx"), which were granted to Optionee under the
xXxxx.xxx Amended and Restated 1997 Stock Plan (the "Plan").
WHEREAS, each outstanding xXxxx.xxx option is evidenced by a Stock option
Agreement, with any shares purchased under such options to be subject to the
terms and conditions of a Stock Purchase Agreement. Such Stock Option Agreement
and Stock Purchase Agreement shall be collectively referred to herein as the
"Option Agreement."
WHEREAS, xXxxx.xxx has been acquired by Xxxxxx.xxx through the merger of
xXxxx.xxx with Xxxxxx.xxx (the "Merger") pursuant to the Agreement and Plan of
Reorganization, by and between Xxxxxx.xxx and xXxxx.xxx (the "Merger
Agreement").
WHEREAS, the provisions of the Merger Agreement require the obligations of
xXxxx.xxx under each outstanding option under the Plan to be assumed by
Xxxxxx.xxx at the consummation of the Merger, and the holder of each such
outstanding option to be issued an agreement evidencing the assumption of such
option.
WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange
ratio (the "Exchange Ratio") in effect for the Merger is 0.22545936 of a share
of Xxxxxx.xxx Common Stock, par value $0.001 par value per share ("Xxxxxx.xxx
Stock"), for each outstanding share of xXxxx.xxx common stock ("xXxxx.xxx
Stock").
WHEREAS, the purpose of the Agreement is to evidence the assumption by
Xxxxxx.xxx of the outstanding options held by Optionee at the time of the
consummation of the Merger (the "Effective Time") and to reflect certain
adjustments to Optionee's outstanding options which have become necessary in
connection with their assumption by Xxxxxx.xxx.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of xXxxx.xxx Stock subject to the options held by
Optionee immediately prior to the Effective Time (the "xXxxx.xxx Options") and
the exercise price payable per share are set forth below. Xxxxxx.xxx hereby
assumes, as of the Effective Time, all the duties and obligations of xXxxx.xxx
under each of the xXxxx.xxx Options. In
connection with such assumption, the number of shares of Xxxxxx.xxx Stock
purchasable under each xXxxx.xxx Option hereby assumed and the exercise price
payable thereunder have been adjusted to reflect the Exchange Ratio.
Accordingly, the number of shares of Xxxxxx.xxx Stock subject to each xXxxx.xxx
Option hereby assumed shall be as specified for that option below, and the
adjusted exercise price payable per share of Xxxxxx.xxx Stock under the assumed
xXxxx.xxx Option shall also be indicated for that option below.
-------------------------------------------------------------------------------------------------
XXXXX.XXX STOCK OPTIONS STAMPS ASSUMED OPTIONS
-------------------------------------------------------------------------------------------------
# of Shares of Exercise Price # of Shares of Adjusted Exercise
xXxxx.xxx Common per Share Xxxxxx.xxx Price per Share
Stock Common Stock
-------------------------------------------------------------------------------------------------
xXxxx.xxx Shares $xXxxx.xxx Price Xxxxxx.xxx Shares $Xxxxxx.xxx Price
-------------------------------------------------------------------------------------------------
2. The intent of the foregoing adjustments to each assumed xXxxx.xxx
Option is to assure that the spread between the aggregate fair market value of
the shares of Xxxxxx.xxx Stock purchasable under each such option and the
aggregate exercise price as adjusted pursuant to this Agreement will,
immediately after the consummation of the Merger, be substantially the same as
(and in no event greater than) than the spread which existed, immediately prior
to the Merger, between the then aggregate fair market value of the xXxxx.xxx
Stock subject to the xXxxx.xxx Option and the aggregate exercise price in effect
at such time under the Option Agreement. Such adjustments are also intended to
preserve, immediately after the Merger, on a per share basis, the same ratio of
exercise price per option share to fair market value per share which existed
under the xXxxx.xxx Option immediately prior to the Merger.
3. The following provisions shall govern each xXxxx.xxx Option hereby
assumed by Xxxxxx.xxx:
(a) Unless the context otherwise requires, all references in the Option
Agreement and, if applicable, in the Plan (as incorporated into such Option
Agreement) shall be adjusted as follows: (I) all references to the
"Company" shall mean Xxxxxx.xxx, (ii) all references to "Share" shall mean
shares of Xxxxxx.xxx Stock, (iii) all references to "Common Stock" shall
mean Xxxxxx.xxx Stock, (iv) all references to the "Board" shall mean the
Board of Directors of Xxxxxx.xxx and (v) all references to the "Committee"
shall mean the Compensation Committee of the Xxxxxx.xxx Board of Directors.
(b) The grant date and the expiration date of each assumed xXxxx.xxx
Option and all other provisions which govern either the exercise or the
termination of the assumed xXxxx.xxx Option shall remain the same as set
forth in the Option Agreement applicable to that option, and the provisions
of the Plan and the Option Agreement shall accordingly govern and control
Optionee's rights to purchase Xxxxxx.xxx Stock under the assumed xXxxx.xxx
Option.
2
(c) Pursuant to the terms of the Options Agreement and the Plan, none
of the xXxxx.xxx Options assumed by Xxxxxx.xxx hereunder shall vest as to
any shares on an accelerated basis in connection with the Merger.
Accordingly, each assumed xXxxx.xxx Option shall continue to vest and
become exercisable for the unvested shares of Xxxxxx.xxx Stock subject to
that option in accordance with the same installment vesting schedule in
effect for that option, pursuant to the provisions of the applicable Option
Agreement, immediately prior to the Effective Time; provided, however, that
the number of shares subject to each such installment shall be adjusted to
reflect the Exchange Ratio.
(d) Any unvested shares of Xxxxxx.xxx Stock acquired upon the exercise
of the assumed xXxxx.xxx Options shall remain subject to a right of
repurchase, exercisable by Xxxxxx.xxx (as the successor of xXxxx.xxx) at
the adjusted exercise price paid per share, upon Optionee's termination of
service with Xxxxxx.xxx. The terms and provisions governing the exercise of
such repurchase right shall be as set forth in the Option Agreement
applicable to the assumed xXxxx.xxx Option under which those unvested
shares are acquired.
(e) For purposes of applying any and all provisions of the Option
Agreement and/or the Plan relating to Optionee's status as an employee or a
consultant of xXxxx.xxx, Optionee shall be deemed to continue in such
status as an employee or a consultant for so long as Optionee renders
services as an employee or a consultant to Xxxxxx.xxx or any present or
future majority-owned Xxxxxx.xxx subsidiary. Accordingly, the provisions of
the Option Agreements governing the termination of the assumed xXxxx.xxx
Options or the exercise of Xxxxxx.xxx's repurchase rights with respect to
any unvested Xxxxxx.xxx Stock purchased under such options and unvested at
the time of Optionee's cessation of service as an employee or a consultant
of xXxxx.xxx shall hereafter be applied on the basis of Optionee's
cessation of employee or consultant status with Xxxxxx.xxx and its
majority-owned subsidiaries. Each assumed xXxxx.xxx Option shall
accordingly terminate, within the designated time period in effect under
the Option Agreement for that option, following such cessation of service
as an employee or a consultant of Xxxxxx.xxx and its majority-owned
subsidiaries.
(f) The adjusted exercise price payable for the Xxxxxx.xxx Stock
subject to each assumed xXxxx.xxx Option shall be payable in any of the
forms authorized under the Option Agreement applicable to that option. For
purposes of determining the holding period of any shares of Xxxxxx.xxx
Stock delivered in payment of such adjusted exercise price, the period for
which such shares were held as xXxxx.xxx Stock prior to the Merger shall be
taken into account.
3
(g) In order to exercise each assumed xXxxx.xxx Option, Optionee must
deliver to Xxxxxx.xxx a written notice of exercise in which the number of
shares of Xxxxxx.xxx Stock to be purchased thereunder must be indicated.
The exercise notice must be accompanied by payment of the adjusted exercise
price payable for the purchased shares of Xxxxxx.xxx Stock and should be
delivered to Xxxxxx.xxx as the following address:
Xxxxxx.xxx Inc.
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Stock Plan Administration
4. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of each Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Stock
Option Assumption Agreement.
IN WITNESS WHEREOF, Xxxxxx.xxx, Inc. has caused this Stock Option
Assumption Agreement to be executed on its behalf by its duly-authorized officer
as of the ___ day of March 2000.
XXXXXX.XXX INC.
By: _________________________
Title: ______________________
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to each of his or her xXxxx.xxx Options hereby assumed by Xxxxxx.xxx are
as set forth in the Option Agreement, the Plan, as applicable, and such Stock
Option Assumption Agreement.
________________________________________
OPTIONEE
DATED: _____________, 2000
4
