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EXHIBIT 4.11
ROSH INTELLIGENT SYSTEMS, INC.
INCENTIVE STOCK OPTION AGREEMENT
Made as of the ____ day of __________, 199_
ROSH INTELLIGENT SYSTEMS, INC., a Delaware corporation (the "Company");
AND
___________________ an employee of the Company (the "Optionee").
WITNESSETH
WHEREAS the Company desires, by affording the Optionee an opportunity to
purchase shares of its Common Stock, par value $0.01 per share (the "Common
Stock"), as hereinafter provided, to carry out the purposes of the Company's
Stock Option Plan (the "Plan"); and
WHEREAS the Optionee agrees to accept the Option (as hereinafter defined) under
the terms and conditions stated herein;
NOW THEREFORE, in consideration of the premises and of the mutual covenants and
agreements hereinafter contained, the parties hereto mutually covenant and agree
as follows:
1. GRANT OF OPTION.
1.1 OPTION. The Company hereby grants to the Optionee, effective
_________________ (the "Grant Date"), an incentive stock option (the "Option")
to purchase all or any part of an aggregate of ________________shares of Common
Stock (such number being subject to adjustment as provided in Paragraph 6) on
the terms and conditions hereinafter set forth.
1.2 STOCK APPRECIATION RIGHT. The Company hereby grants to the Optionee,
as part and subject to the terms and conditions of the Option hereunder and with
respect to 50% of the shares issuable upon exercise of the Option, the right to
receive, after payment to the Company of applicable withholding taxes, the
excess of the fair market value per share on the date a stock appreciation right
is exercised over the Option Price per share as provided in Paragraph 2. The
stock appreciation right shall be exercisable and exercised, only to the extent
that the Option is exercisable and shall either become all or partially
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non-exercisable or all or partially forfeited if the exercisable portion, or any
part thereof, of the Option is exercised, and vice-versa. Subject to any
restrictions or conditions imposed by the Compensation Committee (the
"Committee"), a stock appreciation right may be exercised by the Optionee for
the number of shares as to which the right is granted hereunder only upon the
surrender of a like number of shares of Common Stock. No stock appreciation
right may be exercised on any portion of the Option not exercisable under
Paragraph 3. Unless the context otherwise requires, the term "Option" herein
includes the term "stock appreciation right."
2. PURCHASE PRICE. The purchase price of the shares of Common Stock issuable
upon exercise of the Option (the "Option Price") shall be $0.10 per share, which
is not less than one hundred percent (100%) of the fair market value per share
of Common Stock on the Grant Date. Payment shall be made in cash, by certified
check or in shares of Common Stock in the manner prescribed in Paragraph 7.
3. TERM OF OPTION. The term of the Option shall run from the Grant Date through
___________________, subject to earlier termination as provided in Paragraph 5.
(This term may be modified by the Stock Option Committee, in its sole
discretion, if circumstances so dictate).
The Option is exercisable during its term as follows: ___________ shares
may be purchased as of ______________ and ______________ shares may be purchased
as of the end of each of the subsequent 36 months.
Except as provided in Paragraph 5, the Option may not be exercised
unless, at the time the Option is exercised and at all times from the Grant
Date, the Optionee shall then be and shall have been, an employee of the Company
or any subsidiary.
4. NONTRANSFERABILITY. The Option shall not be transferable otherwise than by
will or the laws of descent and distribution to the extent provided in Paragraph
5, and the Option may be exercised, during the lifetime of the Optionee, only by
him. More particularly (but without limiting the generality of the foregoing),
the Option may not be assigned, transferred (except as provided above), pledged
or hypothecated in any way, shall not be assignable by operation of law, and
shall not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof and of the Plan, and the levy of any
execution, attachment, or similar process upon the Option, shall be null and
void and without effect; provided, however, that if the Optionee shall die while
in the employ of the Company or any subsidiary, his estate, personal
representative, or beneficiary shall have the right to exercise the Option to
the extent provided in Paragraph 5.
5. TERMINATION OF EMPLOYMENT.
5.1 GENERAL. In any and all events of termination of employment, the
Optionee may exercise the Option to the extent that it is exercisable by the
Optionee at the time he ceases to be employed by the Company or any of its
subsidiaries, and only to the extent that the Option is otherwise exercisable at
such time, at any time after the termination of
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employment. Notwithstanding any other provision of this Agreement, the
Optionee's stock appreciation right referenced in Paragraph 1.2 must be
exercised no later than thirty (30) days after termination of employment or it
shall become null and void.
5.2 DISABILITY OR RETIREMENT. If the Optionee shall cease to be employed
by the Company or any subsidiary as the result of his disability, as determined
by the Committee, or retirement with the consent of the Company, then the entire
Option may be exercised by him at any time.
5.3 DEATH. If the Optionee shall die while in the employ of the Company
or any subsidiary, his estate, personal representative, or beneficiary shall
have the right to exercise the entire option at any time after the date of his
death.
5.4 DISMISSAL WITH CAUSE. If the Optionee shall cease to be employed by
the Company or any subsidiary as the result of his dismissal with cause, then
the Committee may, in its sole discretion, determine that the Option, to the
extent that it is not exercisable by the Optionee at the time he ceases to be
employed by the Company or any subsidiary (by operation of Paragraph 5.1 above)
may be exercised by him at any time. The meaning of the terms "without cause" as
used in this paragraph shall be as determined by the Board of Directors in its
sole discretion unless otherwise defined in an employment agreement between the
Company and the Optionee then in force.
6. CHANGES IN CAPITAL STOCK. Upon any readjustment or recapitalization of the
Company's capital stock whereby the character of the Common Stock is changed,
appropriate adjustments shall be made so that the capital stock issuable upon
exercise of the Option after such readjustment or recapitalization shall be
substantially equivalent to the Common Stock issuable upon exercise of the
Option. In the case of a merger, sale of assets or similar transaction which
results in a replacement of the Common Stock with stock of another corporation,
the Company shall exercise its best efforts to replace any outstanding Options
granted under the Plan with comparable options to purchase the stock of such
other corporation, or will provide for immediate maturity of all outstanding
Options prior to the effectiveness of such merger, sale of assets or similar
transaction, with all Options not being exercised within the time period
specified by the Board of Directors being terminated.
7. METHOD OF EXERCISING OPTION.
7.1 Subject to the terms and conditions of this Agreement, the Option
may be exercised by written notice to the Company at its office at One Needham
Place, 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000 (or such other address as
shall be the main office of the Company at the time of exercise). Such notice
shall state that the Option is being exercised thereby and the number of shares
of Common Stock in respect of which it is being exercised. It shall be signed by
the person or persons so exercising the Option and shall be accompanied by
payment in full of the Option Price for such shares of Common Stock in cash, by
certified check or in shares of Common Stock.
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If shares of Common Stock are tendered as payment of the Option Price,
the value of such shares shall be their fair market value as of the date of
exercise. If such tender would result in the issuance of fractional shares of
Common Stock, the Company shall instead return the balance in cash or by check
to the Optionee. The Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate representing such shares as
soon as practicable after notice and payment shall be received.
In the event the Option shall be exercised by any person or persons
other than the Optionee, pursuant to Paragraph 5, such notice shall be
accompanied by appropriate proof of the right of such person or persons to
exercise the Option.
The Optionee shall have no rights of a stockholder with respect to
shares of Common Stock to be acquired by the exercise of the Option until a
certificate or certificates representing such shares are issued to him. All
shares of Common Stock purchased upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
7.2 Subject to the terms and conditions of this Agreement, the stock
appreciation right under the Option may be exercised by written notice to the
Company at its offices at One Needham Place, 00 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxx, XX 00000 (or such other address as shall be the main office of the
Company at the time of exercise). Such notice shall state that the stock
appreciation right under the Option is being exercised thereby and the number of
shares of Common Stock-in respect of which the stock appreciation right is being
claimed. It shall be signed by the person or persons so exercising the Option
and surrendering a like number of shares available under the Option. The
Committee may, in its sole discretion, accept or reject all or part of the stock
appreciation right so exercised. The Notice of exercise shall be effective only
insofar as permitted by the Committee in a notice specifying that all or a
specified portion of the stock appreciation right may be exercised. The portion
of the stock appreciation right rejected by the Committee shall be exercisable
at a later date.
Upon the exercise of a stock appreciation right and the surrender of the
exercisable portion of the Option, the Optionee shall be awarded cash, shares of
Common Stock or a combination of shares and cash at the discretion of the
Committee. The award shall have a total value equal to the product obtained by
multiplying (a) the excess of the fair market value per share on the date on
which the stock appreciation right is exercised over the Option Price per share
by (b) the number of shares subject to the exercisable portion of the Option
surrendered. Notwithstanding the foregoing, the Committee may from time to time
in its discretion, determine a maximum amount to be paid for the share value of
a stock appreciation right.
The portion of the stock appreciation right, which may be awarded in
cash, shall be determined by the Committee from time to time. The number of
shares awardable to an Optionee with respect to the noncash portion of a stock
appreciation right shall be determined by dividing such noncash portion by the
fair market value per share on the exercisable date. No fractional shares shall
be issued.
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8. GENERAL. The Company shall at all times during the term of the Option reserve
and keep available such number of shares of Common Stock as will be sufficient
to satisfy the requirements of this Agreement, shall pay all original issue
taxes, if any, with respect to the issuance of shares of Common Stock pursuant
hereto and all other fees and expenses necessarily incurred by the Company in
connection therewith, and shall, from time to time, use its best efforts to
comply with all laws and regulations which, in the opinion of counsel for the
Company, shall be applicable thereto.
9. REPRESENTATIONS OF OPTIONEE. The Optionee hereby represents that he and any
related persons or entities, within the meaning of Section 425(d) of the
Internal Revenue Code of 1986, do not own as much as ten percent (10%) of the
total combined voting power of all classes of capital stock of the Company, and
in accepting the Option herein granted to him, agrees to the terms of such
Option as of the date hereof
10. NOTICES. Each notice relating to this Agreement shall be in writing and
delivered in person or by first class mail, postage prepaid, to the address as
hereinafter provided. Each notice shall be deemed to have been given on the date
it is received. Each notice to the Company shall be addressed to it at its
offices at One Needham Place, 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000 (or
such other address as shall be the main office of the Company at the time of the
notice). Each notice to the Optionee or other person or persons then entitled to
exercise the Option shall be addressed to the Optionee or such other person or
persons at the Optionee's, address last known to the Company.
11. INCORPORATION OF PLAN. Notwithstanding the terms and conditions herein, this
Agreement shall be subject to and governed by all the terms and conditions of
the Plan. A copy of the Plan has been delivered to the Optionee and is hereby
incorporated by reference. In the event of any discrepancy or inconsistency
between the terms and conditions of this Agreement and of the Plan, the terms
and conditions of the Plan shall control.
12. CONTINUANCE OF EMPLOYMENT. The granting of the Option and stock appreciation
right is in consideration of the Optionee's continuing employment by the Company
or any subsidiary, provided, however, nothing in this Agreement shall confer
upon the Optionee the right to continue in the employ of the Company or any
subsidiary or affect the right of the Company or any subsidiary to terminate the
Optionee's employment at any time in the sole discretion of the Company or any
subsidiary, with or without cause.
13. INTERPRETATION. The interpretation and construction of any terms or
conditions of the Plan, or of this Agreement or other matters related to the
Plan by the Committee shall be final and conclusive.
14. LEGAL PROCEEDINGS. In the event of the institution of any legal proceedings
directed to the validity of the Plan or the Option, the Company may, in its sole
discretion, and without incurring any liability therefor to the Optionee, cancel
the Option.
15. ENFORCEABILITY. This Agreement shall be binding upon the Optionee, his
estate, his personal representatives and beneficiaries.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a
duly authorized officer, and the Optionee has hereunto set his hand, all as of
the date and year first above written.
ROSH INTELLIGENT SYSTEMS, INC. OPTIONEE:
By:
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Authorized Officer
Address:
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