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EXHIBIT 4.4
THE CIRCLE INTERNATIONAL GROUP, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT made and entered into this _____th day
of_____________, 199__ by and between Circle International Group,
Inc., a Delaware corporation (the "Company"), and ______________,
an employee of the Company or of one of its subsidiaries (the
"Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1994 Omnibus
Equity Incentive Plan (the "Plan"), providing for the granting to
its employees of stock options relating to shares of its common
stock (the "Common Stock"); and
WHEREAS, the Plan provides for the grant of options
which are intended to be incentive stock options within the
meaning of Section 422A ("incentive stock options") of the
Internal Revenue Code of 1986, as amended; and
WHEREAS, the Employee is a key employee who is in a
position to make an important contribution to the long-term
performance of the Company.
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Option. The Company hereby grants to the
Employee an incentive stock option to purchase ____ shares of the
Common Stock at the price set forth in Paragraph 2 hereof, on the
terms and conditions hereinafter stated.
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2. Exercise Price. The purchase price per share is
($_______) (which is the fair market value of such Common Stock
at date of grant), which shall be paid in the legal tender of the
United States.
3. Number of Shares. The number of shares of Common
Stock covered hereby and the price per share thereof shall be
proportionately adjusted for any increase or decrease in the
number of issued and outstanding shares of Common Stock resulting
from a subdivision or consolidation of shares or the payment of a
stock dividend in excess of 2% or any other increase or decrease
in the number of issued and outstanding shares of Common Stock
effected without receipt of consideration by the Company.
Subject to any required action of the stockholders of
the Company, if the Company shall be the surviving corporation in
any merger or consolidation, this option (to the extent that it
is still outstanding) shall pertain to and apply to the
securities of which a holder of the same number of shares of
Common Stock that are subject to the option would have been
entitled. To the extent that the foregoing adjustments relate to
stock or securities of the Company, any such adjustments shall be
made by the Human Resources and Compensation Committee (the
"Committee"), whose determination in that respect shall be final,
binding and conclusive.
In the event of a change in control (as defined
below) any and all outstanding options shall automatically vest
in full and shall be immediately exercisable without regards to
any limitations on the date of the occurrence of the change in
control. A change in control shall be deemed to have occurred
if:
(a) as a result of or in connection with any tender
offer, exchange offer, merger, or acquisition other
business combination, sale of assets or contested
election or combination of the foregoing, the persons
who were Directors of the company just prior to such
event cease to constitute a majority of the Board of
the Company or its successor;
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(b) the stockholders of the company approve a merger
or consolidation of the Company with another Company
and as a result of such merger or consolidation less
than 70% of the outstanding voting securities of the
surviving or resulting Company shall then be owned in
the aggregate by the former stockholders of the
Company, other than (A) any party to such merger or
consolidations, or (B) any affiliates to any such
party;
(c) a tender offer or exchange offer is made and
consummated for the ownership of securities of the
Company representing 50% or more of the combined voting
power of the Company's then outstanding voting
securities, or
(d) any person is or becomes the beneficial owner,
directly or indirectly, of at least 20% of the combined
voting power of the Company's outstanding securities,
except by reason of a repurchase by the Company of its
securities.
(e) a plan of liquidation or an agreement for the sale
or transfer of substantially all of the Company's
assets to another Company that is not a wholly owned
Company of the Company.
This provision may not be amended after the date of a Change in
Control without the written consent of a majority in both number
and interest of the participants in this Plan, other than those
participants who are both (1) not employed by the Company as of
the date of the Change in Control and (2) not receiving nor could
have commenced receiving benefits under the Plan as of the date
of the Change in Control, both immediately prior to the Change in
control and at the date of such amendment.
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The grant of this option shall not affect in any way
the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business or
assets.
4. Commencement of Exercisability. This option may
not be exercised in whole or in part until one year has elapsed
from the date of this Agreement. Subject to the conditions
stated herein, the right to exercise this option shall accrue in
installments as follows:
(i) During the period of 12 months beginning one
year after the date of this Agreement, this option may be
exercised to the extent of 25% of the shares subject to option;
(ii) During the period of 12 months beginning
_______, 199_, this option may be exercised to the extent of 25%
of the shares subject to option plus the shares as to which the
right to exercise this option has previously accrued but has not
been exercised.
(iii) During the period of 12 months beginning
_______, 199_, this option may be exercised to the extent of 25%
of the shares subject to option plus the shares as to which the
right to exercise this option has previously accrued but has not
been exercised.
(iv) During the period of 48 months beginning
_______, 199_, this option may be fully exercised to the extent
that it has not previously been exercised.
No partial exercise of this option will be permitted
for less than ten shares.
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5. Termination of Option. In the event of termination
of the Employee's employment for any reason other than his death,
this option shall immediately terminate; provided, however, that
if such cessation of employment is with the consent of the Board
of Directors, expressed in the form of a resolution, or is
pursuant to retirement under the provisions of any pension,
profit sharing or other retirement plan of the Company then in
effect, or is on account of permanent illness or disability, this
option may be exercised (subject to the provisions of Paragraph
12 hereof) within three months after the date he ceases to be an
employee of the Company, but only to the extent that it was
exercisable on the date of such cessation of employment.
6. Persons Eligible to Exercise. This option shall be
exercisable during the Employee's lifetime only by him and shall
be nontransferable by the Employee otherwise than by will or the
applicable laws of descent and distribution, or by a beneficiary
designation made in a form and manner acceptable to the
Committee.
7. After the Death of Employee. In the event of the
Employee's death while in the employ of the Company, or during a
three-month period following termination of employment during
which the Employee is permitted to exercise this option pursuant
to Paragraph 5 hereof, this option may be exercised (subject to
the provisions of Paragraph 12 hereof) at any time within one
year after the Employee's death by the Employee's transferee to
the same extent as the Employee could have exercised the option
immediately prior to the employee's death. The Employee's
transferee shall be the person or persons, designated by the
Employee on a Beneficiary Designation Form furnished by the
Committee, provided, however, that if at the time of the
Employee's death, there is no effective Beneficiary Designation
Form on file with the Committee, the Employee's transferee shall
be deemed to be the executor or administrator of the employee's
estate or any person who shall have acquired the option from the
Employee by the employee's will or the applicable law of descent
and distribution. Any such transferee exercising this option
must furnish the Company upon request of the Committee (a)
written notice of his status as transferee, (b) evidence
satisfactory to the Company to establish the validity of the
transfer of the option in compliance with any laws or regulations
pertaining to said transfer, and (c) written acceptance of the
terms and conditions of the option as prescribed in this
Agreement.
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8. Exercise of Option. This option may be exercised
by the person then entitled to do so as to any share which may
then be purchased by giving written notice of exercise to the
Company, specifying the number of full shares to be purchased and
accompanied by full payment of the purchase price thereof and the
amount of any income tax the Company is required by law to
withhold by reason of such exercise.
9. No Rights of Stockholder. Neither the Employee nor
any person claiming under or through him shall be or have any of
the rights or privileges of a stockholder of the Company in
respect of any of the shares issuable upon the exercise of the
option, until the date of the receipt of payment by the Company
and the issuance of a stock certificate to him for such shares in
accordance with the terms hereof.
10. Addresses For Notices. Any notice to be given to
the Company under the terms of this Agreement shall be addressed
to Circle International Group, Inc., in care of its Corporate
Secretary, at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, or at such other address as the Company may hereinafter
designate in writing. Any notice to be given to the Employee
shall be addressed to the Employee at the address set forth
beneath his signature hereto, or at any such other address as the
Employee may hereafter designate in writing. Any such notice
shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope, addressed as aforesaid, registered and
deposited, postage and registry fee prepaid, in a post office or
branch post office regularly maintained by the United States
Government.
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11. Non-Transferability of Option. Except as
otherwise stated herein, the option herein granted and the
rights and privileges conferred hereby shall not be transferred,
assigned, pledged or hypothecated in any way (whether by
operation or law or otherwise) and shall not be subject to sale
under execution, attachment or similar process upon the rights
and privileges conferred hereby. Upon any attempt to transfer,
assign, pledge or otherwise dispose of said option, or of any
right or privilege conferred hereby, contrary to the provisions
hereof, or upon any attempted sale under any execution,
attachment or similar process upon the rights and privileges
conferred hereby shall immediately become null and void.
12. Maximum Term of Option. Notwithstanding any other
provision of this Agreement, this option is not exercisable after
the expiration of eight years and three months from the date
hereof.
13. Binding Agreement. Subject to the limitations on
transferability contained herein, this Agreement shall be binding
upon and inure to the benefit of the heirs, legatees, legal
representatives, successors and assigns of the parties hereto.
14. Suspension of Exercisability. The rights awarded
hereby are subject to the requirement that, if at any time the
Committee shall determine, in its sole discretion, that the
listing, registration or qualification of the shares of Common
Stock subject to such rights upon any securities exchange or
under any state or federal law, or the consent or approval of any
government regulatory body, is necessary or desirable as a
condition, or in connection with, the granting of such rights or
the issue of shares in connection therewith, such rights may not
be exercised or paid in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee.
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15. Arbitration. The parties hereto agree that any
action relating to this stock option agreement shall be
instituted and processed in the courts in San Francisco County,
California, and each party waives the right to change of venue.
Further, the parties agree that any action relating to their
agreement shall be submitted to final and binding arbitration
pursuant to the provisions of the California Civil Code.
16. Option Has No Effect On Employment. Nothing in
this Agreement shall be construed as giving the Employee the
right to be retained as an Employee, as impairing the rights of
the Company to terminate the employee's service, or as altering
the at-will employment status of employee, as the case may be.
The Company shall have the right, which is expressly reserved, to
terminate or change the terms of the employment of the Employee
at any time for any reason whatsoever, with or without good
cause.
17. Payment of Tax. Whenever shares of Common Stock
are to be issued in satisfaction of the rights conferred hereby,
the Company shall have the right to require the optionee to remit
to the Company an amount sufficient to satisfy federal, state and
local withholding tax requirements prior to the delivery of any
certificate or certificates for such shares. Whenever payments
are to be made in cash, such payments shall be net of an amount
sufficient to satisfy federal, state and local withholding tax
requirements.
18. Plan Governs. This Agreement is subject to all
terms and provisions of the Plan. In the event of a conflict
between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan shall govern.
Terms used in this Agreement that are not defined in this
Agreement shall have the meaning set forth in the Plan.
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19. Committee Authority. The Committee shall have the
power to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of
the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final
and binding upon Employee, the Company and all other interested
persons. No member of the Committee shall be personally liable
for any action, determinations or interpretation made in good
faith with respect to the Plan or this Agreement.
IN WITNESS HEREOF, the parties hereto have executed
this Agreement, in duplicate, the day and year first above
written.
CIRCLE INTERNATIONAL GROUP, INC.
By___________________________
ACCEPTED:
________________________________
Employee Signature
________________________________
________________________________
Address
