MEMCO SOFTWARE LTD.
1997 STOCK OPTION AND INCENTIVE PLAN (III)
STOCK OPTION AGREEMENT Exhibit 4.9
To: ___________________________ ("Optionee")
THIS STOCK OPTION AGREEMENT ("Agreement") is effective as of the Grant
Date specified below and is made between Memco Software Ltd. (the "Company"),
and the Optionee identified above.
WHEREAS, the Company has adopted the Memco Software Ltd. 1997 Stock
Option and Incentive Plan (III) (the "Plan") in order to provide additional
incentive to certain employees of the Company;
WHEREAS, the Committee responsible for administering the Plan granted
Optionee on _____________, 1997 (the "Grant Date") certain options to purchase
ordinary shares of the Company pursuant to the terms and conditions hereunder;
and
WHEREAS, the decision to grant such options to the Optionee has been
made as an integral part of the Company's policy to employ and retain persons
who are valuable to the Company and to its subsidiaries, to encourage the sense
of proprietorship as well as to create an active interest in the development and
financial success of the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant and Acceptance of Option.
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1.1 The Company hereby grants to the Optionee, effective as of the
Grant Date, options (the "Options") to purchase all or any part of an aggregate
of ____________ whole shares of Ordinary Shares, subject to, and in accordance
with, the terms and conditions set forth in this Agreement.
1.2 The Options are intended to qualify as an Incentive Stock Options
within the meaning of Section 422 of the Code and the terms of this Agreement
shall be construed in accordance with such Code section; provided, however, that
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nothing in this Agreement shall be interpreted as a representation, guarantee or
other undertaking on the part of the Company that the Options are or will be
determined to be an Incentive Stock
Options within the meaning of Section 422 of the Code. In the event that the
aggregate fair market value of stock (determined as of the date the Options are
granted) with respect to which the Options (and any other incentive stock
options held by the Optionee issued by the Company or its parent or
subsidiaries) are exercisable for the first time during any calendar year
exceeds 100,000 U.S. dollars, such excess Options shall lose their status as
"Incentive Stock Options" and shall be deemed to be "Nonqualified Options" under
applicable law.
1.3 This Agreement shall be construed in accordance and consistent
with, and subject to, the provisions of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan. In the case of any inconsistency between
the provisions of this Agreement and the Plan, the provisions of the Plan shall
prevail.
1.4 The Options cannot be exercised unless Optionee signs his or her
name in the space provided on the copy of this Agreement enclosed herewith and
causes it to be delivered to and in the hands of the Secretary of the Company no
later than fourteen (14) days after the date this Agreement is delivered to the
Optionee by the Company. If the Secretary does not have the Optionee's properly
executed copy of this Agreement no later than fourteen (14) days after such
delivery date, then, anything in this Agreement to the contrary notwithstanding,
the Options will terminate and be of no effect. The Optionee's signature and
delivery of a copy of this Agreement will not commit the Optionee to purchase
any of the Ordinary Shares that are subject to the Options but will evidence the
Optionee's acceptance of the Options upon the terms and conditions herein
stated.
2. Purchase Price. The price at which the Optionee shall be entitled
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to purchase Ordinary Shares upon the exercise of the Options shall be _____ U.S.
dollars per Ordinary Share (a price which must be at least equal to the Fair
Market Value of underlying shares on date of grant or 110% of Fair Market Value
in the case of a grant to a Ten Percent Stockholder).
3. Duration of Options. The Options shall be exercisable to the
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extent and in the manner provided herein for a period of 10 years (5 years in
the case of Options held by a Ten-Percent Stockholder) from the Grant Date (the
"Exercise Term"); provided, however, that the Options may be earlier terminated
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as provided in Sections 6(f) and 6(g) of the Plan.
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4. Exercisability of Options. Unless otherwise provided in this
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Agreement, the Plan or the rules that may be adopted by the Committee from time
to time under the Plan, the Options shall vest and be exercisable by the
Optionee, in whole at any time or in part from time to time, in exchange for the
number of Ordinary Shares covered by the Options in accordance with the
following schedule:
Number of Options Date of Vesting/ Exercisability
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Notwithstanding the foregoing, an Optionee's right of exercise/purchase shall be
subject to the employment provisions of Section 6(f) of the Plan; provided, that
in no event may the Options be exercised more than one month after termination
of employment (six months in the case of termination of employment by reason of
death or disability) or after the expiration of 10 years from the date of this
Agreement. Each right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided, during the remaining period
of the Exercise Term.
5. Manner of Exercise and Payment.
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5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Options may be exercised by delivery of written notice to the Company,
at its principal executive office. Such notice shall state that the Optionee is
electing to exercise the Options and the number of Ordinary Shares in respect of
which the Options are being exercised and shall be signed by the person or
persons exercising the Options. If requested by the Committee, such person or
persons shall (i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide satisfactory
proof as to the right of such person or persons to exercise the Options.
5.2 The notice of exercise described in Section 5.1 hereof shall be
accompanied by (x)(i) the full purchase price for the Ordinary Shares in respect
of which the Options are being exercised, in cash (i.e., by check), or by
transferring Ordinary Shares, or in a combination of cash and such Ordinary
Shares to the Company having a Fair Market Value on the day preceding the date
of exercise equal to the cash amount for which such Ordinary Shares are
substituted or (ii) instructions from the Optionee to the
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Company directing the Company to deliver a specified number of Ordinary Shares
directly to a designated broker or dealer pursuant to a cashless exercise
election which is made in accordance with such requirements and procedures as
are acceptable to the Committee in its sole discretion and (y) any applicable
withholding taxes.
5.3 Upon receipt of notice of exercise and full payment for the
Ordinary Shares in respect of which the Options are being exercised and any
other documentation which may be reasonably required by the Committee, the
Company shall, subject to the Plan and this Agreement, take such action as may
be necessary to effect the transfer to the Optionee of the number of Ordinary
Shares as to which such exercise was effective.
5.4 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to any Ordinary Shares subject to the
Options until (i) the Options shall have been exercised pursuant to the terms of
this Agreement and the Optionee shall have paid the full purchase price for the
number of Ordinary Shares in respect of which the Options was exercised and any
applicable withholding taxes, (ii) the Company shall have issued and delivered
the Ordinary Shares to the Optionee, and (iii) the Optionee's name shall have
been entered as a stockholder of record on the books of the Company, whereupon
the Optionee shall have full voting and other ownership rights with respect to
such Ordinary Shares, subject to the terms and conditions set forth herein.
6. Nontransferability. The Options shall not be transferable other
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than by will or by the laws of descent and distribution or by such other means
explicitly permitted by Section 422 of the Code. During the lifetime of the
Optionee, the Options shall be exercisable only by the Optionee or the
Optionee's guardian or legal representative.
7. No Right to Continued Employment. Nothing in this Agreement or
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the Plan shall be interpreted or construed to confer upon the Optionee any right
with respect to continuation of employment by the Company, nor shall this
Agreement or the Plan interfere in any way with the right of the Company to
terminate the Optionee's employment at any time.
8. Adjustments. In the event of any of the corporate capital
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transactions described in Section 10 of the Plan, entitled "Effect of Certain
Changes," the Committee may make appropriate adjustments to the number and class
of Ordinary Shares or other stock or securities subject to the Options and the
purchase price for such Ordinary Shares or other stock or securities. The
Committee's adjustments shall be made in accordance with the provisions of
Section 10 of the Plan, entitled "Effect of Certain Changes," and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
9. Disqualifying Dispositions. If the Optionee makes a disposition,
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within the meaning of Section 424(c) of the Code and the regulations promulgated
thereunder, of any Ordinary Shares issued to the Optionee pursuant to his
exercise of the Options within the two-year period commencing on the day after
the Grant Date or within the one-year period commencing on the day after the
date of transfer of such Ordinary Shares to the
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Optionee pursuant to such exercise, the Optionee shall, within ten (10) days
after such disposition, notify the Company thereof, by delivery of a written
notice to the Secretary of the Company, and immediately deliver to the Company
the amount of all applicable withholding taxes.
10. Optionee Bound by the Plan. The Optionee hereby acknowledges
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receipt of a copy of the Plan and agrees to be bound by all other terms and
provisions thereof.
11. Modification of Agreement. This Agreement may be modified,
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amended, suspended or terminated, and any terms or conditions may be waived, but
only by a written instrument executed by the parties hereto.
12. Severability. Should any provision of this Agreement be held by
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a court of competent jurisdiction to be unenforceable or invalid for any reason,
the remaining provisions of this Agreement shall not be affected by such holding
and shall continue in full force in accordance with their terms.
13. Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
Israel.
14. Successors in Interest. This Agreement shall inure to the
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benefit of and be binding upon each successor corporation. This Agreement shall
inure to the benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company under this
Agreement shall be final, binding and conclusive upon the Optionee's heirs,
executors, administrators and successors.
15. Resolution of Disputes. Any dispute or disagreement which may
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arise under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made by the Committee hereunder shall be final,
binding and conclusive on the Optionee and the Company for all purposes.
16. Shareholder Approval. The effectiveness of this Agreement and of
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the grant of the Options pursuant hereto is subject to the approval of the Plan
by the stockholders of the Company in accordance with the terms of the Plan
within 12 months of the date the Plan is adopted.
17. Tax Consequences. The Optionee shall be liable for any tax
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consequences arising from the grant of the Options, from the exercise thereof
and/or from the transfer, sale or other disposition of the Ordinary Shares of
the Company obtained upon the exercise of such Options. Any description provided
by the Company of tax implications or consequences associated with the grant or
exercise of Options hereunder (whether contained in this Agreement, the Plan or
any other communication received by the Optionee to date or in the future) does
not purport to be accurate,
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complete or comprehensive. The Optionee is advised to seek independent advice
regarding such tax consequences and implications.
18. Confidentiality. The Optionee shall keep in strict confidence
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and shall not disclose any of the terms and conditions of this Agreement to any
other party, except for disclosures required by law, and then only to the extent
so required by law. The Optionee acknowledges and agrees that this
confidentiality provision is a principal obligation of the Optionee under this
Agreement.
MEMCO SOFTWARE LTD.
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By:
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Printed Name:
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Title:
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Attest:
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Secretary
I hereby agree to the terms and conditions
set forth herein and acknowledge receipt of
the Memco Software Ltd. 1997 Stock Option
and Incentive Plan (III)
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(Signature of Optionee)
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Date
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