Exhibit 10.4(b)
AVNET, INC. 1999 STOCK OPTION PLAN
EMPLOYEE OPTION AGREEMENT
(Incentive Stock Option)
AGREEMENT made and entered into as of ______ (the "Date of Grant")
by and between AVNET, INC. ("Avnet") and <> (the "Optionee").
W I T N E S S E T H :
WHEREAS, Avnet has adopted the Avnet, Inc. 1999 Stock Option Plan
(the "Plan") pursuant to which Options may be granted to certain Eligible
Employees;
WHEREAS, the Optionee is an Eligible Employee of Avnet, or one of
its subsidiaries, or under consideration for employment by Avnet or employed by
a business being acquired by Avnet; and
WHEREAS, the Committee has determined that the granting of an Option
to the Optionee will effectuate the purposes of the Plan and has approved the
terms of this Option Agreement;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants hereinafter contained, it is agreed by and between Avnet and the
Optionee as follows:
1. Atached hereto is a copy of the Plan. All terms used herein which
are defined in Article II of the Plan shall have the respective meanings
assigned to them in the Plan unless the context otherwise indicates, except that
"Optionee" shall mean only the above-named party to this Option Agreement and
"Successor Optionee" shall mean any person who, under the provisions of
paragraphs 4 or 5 hereof, shall have acquired the right to exercise the Option
evidenced hereby by will or the laws of descent and distribution. The "Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended.
2. Subject to the terms and conditions set forth herein, the
Optionee or any Successor Optionee shall be entitled to purchase from Avnet an
aggregate of <> shares of Stock at a price
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of $____ per share; such purchase price being at least the Fair Market Value on
the date on which the Option evidenced hereby was granted.
3. Subject to the provisions of paragraphs 4, 5, 6 and 7 hereof, the
Option evidenced hereby shall be exercisable as follows:
(a) for one year after the Date of Grant, such Option shall not be
exercisable with respect to any of the shares of Stock subject thereto;
(b) upon the first anniversary of the Date of Grant, such Option
shall become exercisable ("vest") with respect to 25% of the total number
of shares of Stock subject thereto; and
(c) upon each succeeding anniversary of the Date of Grant, such
Option shall become exercisable ("vest") with respect to an additional 25%
of the total number of shares of Stock subject thereto, cumulatively.
To the extent that the Option evidenced hereby shall have become exercisable,
such Option may thereafter be exercised by the Optionee or any Successor
Optionee in whole at any time or in part from time to time prior to the
surrender, expiration or termination of such Option or the cessation of
exercisability thereof; provided that each such exercise shall be for 100 shares
of Stock or any multiple thereof or for the whole number of shares of Stock then
purchasable under such Option. The Option evidenced hereby shall expire and
cease to be exercisable after the day prior to the tenth anniversary of the Date
of Grant.
4. The Option evidenced hereby shall not be assignable or
transferable by the Optionee or any Successor Optionee except in the event of
the death of the Optionee or such Successor Optionee, nor shall such Option be
exercisable during the respective lifetimes of the Optionee or any Successor
Optionee except by the Optionee or such Successor Optionee. In the event of the
death of the Optionee either while in the employ of the Company or after
Retirement from the employ of the Company (as defined in Paragraph 5 below), the
Option evidenced hereby shall become exercisable (unless such Option shall
sooner be surrendered or expire) for one year after the date of death of the
Optionee; provided, however, that the Option must be exercised no later than the
day prior to the tenth anniversary of the Date of Grant, and only (a) by the
person or persons to whom the right to exercise such Option shall have passed by
will or the laws of descent and distribution, and (b) if and to the extent that
the Option shall have been exercisable by the Optionee
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at the date of death. At the end of the aforesaid period, such Option (unless it
shall sooner have been surrendered or have expired) shall terminate and cease to
be exercisable.
5. In the event that the Optionee shall cease to be employed by the
Company for any reason other than death, disability, retirement, or other
reasons determined by the Committee in its sole discretion, the Option evidenced
hereby shall forthwith upon such cessation of employment terminate and cease to
be exercisable. In the event that the Optionee shall cease to be employed by the
Company as a result of Retirement (as defined below), the Option evidenced
hereby shall continue to vest pursuant to paragraph 3 and shall remain
exercisable for five years after the date of the Optionee's cessation of
employment, but in no event later than the day prior to the tenth anniversary of
the Date of Grant (unless such option shall sooner be surrendered for
termination or expire), and only by the Optionee or by the person or persons to
whom the right to exercise such Option shall have passed by will or the laws of
descent and distribution. At the end of the aforesaid period, such Option
(unless it shall sooner have been surrendered for termination or have expired)
shall terminate and cease to be exercisable. For purposes of this Agreement, a
qualifying "Retirement" shall have occurred if at the time of cessation of
employment (a) the employee is at least age 55 and has at least five years of
service with the Company, and (b) the combination of the employee's age plus
years of service equals at least 65 and (c) the employee has signed a two-year
non competition agreement in a form acceptable to the Company. In the event that
the Optionee shall cease to be employed by the Company as a result of
disability, the Option evidenced hereby shall remain exercisable for three
months after the date of such cessation of employment, but in no event later
than the day prior to the tenth anniversary of the Date of Grant (unless such
Option shall sooner be surrendered for termination or expire), and only (a) by
the Optionee or by the person or persons to whom the right to exercise such
Option shall have passed by will or the laws of descent and distribution, and
(b) if and to the extent that such Option was exercisable by the Optionee at
such date of cessation of employment. At the end of the aforesaid period, such
Option (unless it shall sooner have been surrendered for termination or have
expired) shall terminate and cease to be exercisable. Neither the Plan nor this
Option Agreement shall confer upon the Optionee any right with respect to
continuance of employment by the Company, nor shall it interfere in any way with
the Optionee's right, or the Company's right, to terminate the Optionee's
employment at any time.
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6. The Committee may, in the event of a public solicitation, by any
person, firm or corporation other than Avnet, of tenders of 50% or more of the
then outstanding Stock (known conventionally as a "tender offer"), accelerate
exercisability of the Option evidenced hereby if the Optionee is then employed
with the Company, so that the Option evidenced hereby shall become immediately
exercisable in full; provided that any such accelerated exercisability shall
continue in effect only until expiration, termination or withdrawal of such
"tender offer," whereupon the Option evidenced hereby shall be (and shall
continue thereafter to be) exercisable only to the extent that it would have
been exercisable if no such acceleration or exercisability had been authorized.
7. In the event of a Change of Control of the Company, the Option
evidenced hereby shall become immediately exercisable in full (unless it shall
sooner have been surrendered for termination or have expired). For purposes of
this Agreement, "Change of Control" shall be defined as:
(i) the acquisition, by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person"),
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 50% or more of either (A) the then outstanding
shares of common stock of the Company or (B) the combined voting power of
the then outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however, that the
following such acquisitions shall not constitute a Change of Control under
this subsection (i): (w) any such acquisition that is authorized by the
Board of Directors of the Company as constituted prior to the effective
date of the acquisition, (x) any acquisition directly from the Company
(excluding an acquisition by virtue of the exercise of a conversion
privilege), (y) any acquisition by the Company, or (z) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by
the Company or any entity controlled by the Company; or
(ii) individuals who, as of the date of this Agreement, constitute
the Board of Directors of the Company (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
effective date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a
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member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of either
an actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(iii) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company or the sale or other disposition
of all or substantially all of the assets of the Company.
8. (a) To the extent that the Option evidenced hereby shall have
become and shall be exercisable as hereinabove provided, such Option may be
exercised at any time and from time to time by the Optionee or any Successor
Optionee by written notice to Avnet stating the number of shares with respect to
which such Option is being exercised, accompanied by (i) payment (by certified
check if so required by Avnet) in the amount of the aggregate exercise price in
full therefor, or (ii) delivery of certificates representing shares of Stock
(duly endorsed or accompanied by appropriate stock powers, in either case with
signature guaranteed if so required by Avnet) having a Fair Market Value, at the
date of receipt by Avnet of such certificates and the notice mentioned above,
equal to or in excess of such aggregate exercise price, or (iii) a combination
of payment and delivery of certificates for Stock equal in total sum to the
exercise price in full for the shares being purchased.
(b) As soon as practicable after receipt of notice as provided in
subparagraph (a) above, Avnet shall, without requiring payment of any transfer
or issue tax by the Optionee or any Successor Optionee, deliver to the Optionee
or such Successor Optionee, at the principal office of Avnet (or such other
place as Avnet may designate), a certificate or certificates representing the
shares of Stock acquired upon such exercise; provided, however, that the date
for any such delivery may be postponed by Avnet for such period as it may
require, in the exercise of reasonable diligence (i) to register the shares of
Stock so purchased (together with any part or all of the balance of the shares
of Stock and/or any other securities of Avnet which may be deliverable pursuant
to the exercise of Options) under the Securities Act of 1933, as amended, and/or
to obtain the opinions of counsel referred to in clauses (B) and (E) of
paragraph 10 below and (ii) to comply with the applicable listing requirements
of any national securities exchange or with any other requirements of law. If
the Optionee or such Successor Optionee shall fail to accept delivery of all or
any part of the shares of Stock with respect to which such Option is being
exercised, upon tender thereof, the right
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of the Optionee or such Successor Optionee to exercise such Option with respect
to such unaccepted shares may, in the discretion of the Committee, be
terminated.
(c) Upon each exercise of the Option, the Optionee or Successor
Optionee shall pay to Avnet such amounts as may be required under all applicable
income tax laws to be withheld in connection with such exercise. An Optionee
whose transactions in Stock are subject to the provisions of Section 16(b) of
the Securities Exchange Act of 1934 may, in the discretion of the Committee and
subject to the provisions of paragraph 4 of Article VII of the Plan and to such
rules as the Committee may have adopted pursuant thereto, elect to satisfy such
obligation, in whole or in part, by requesting that Avnet withhold shares of
Stock having a Fair Market Value equal to the amounts required to be so
withheld. Each such election with respect to the exercise of an Option (i) must
be made on or prior to the date that the amount to be withheld is determined;
(ii) shall be irrevocable and (iii) is subject to the disapproval of the
Committee.
9. Neither the Optionee nor any Successor Optionee shall acquire or
have any rights as a shareholder of Avnet by virtue of the Option evidenced
hereby until the certificates representing shares of Stock issued pursuant to
the exercise of such Option are delivered to the Optionee or such Successor
Optionee. However, the rights of the Optionee or such Successor Optionee after
certificates representing shares of Stock are so delivered shall be deemed to be
the rights of a shareholder of record as of the date of receipt by Avnet of
notice of the exercise of the Option evidenced hereby and of the full
consideration for the shares of Stock purchased pursuant to such exercise as
hereinabove provided.
10. Avnet has registered or agrees to register under the Securities
Act of 1933, as amended, the shares of Stock which may be issued pursuant to the
exercise of options granted under the Plan; nevertheless, Avnet shall not be
obligated to sell or deliver any shares of Stock pursuant to the exercise of the
Option evidenced hereby unless:
(A) (i) such shares have at the time of such exercise been
registered under the Securities Act of 1933, as amended, (ii) no stop
order suspending the effectiveness of such registration statement has been
issued and no proceedings therefor have been instituted or threatened
under said Act, and (iii) there is available at the time of such exercise
a prospectus meeting the requirements of Section 10(a)(3) of said Act, or
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(B) Avnet shall have received from its counsel an opinion that
registration of such shares under said Act is not required, and
(C) such shares are at the time of such exercise, or upon official
notice of issuance will be, listed on each national securities exchange on
which the Stock is then listed,
(D) the prior approval of such sale has been obtained from any State
regulatory body having jurisdiction (but nothing herein contained shall be
deemed to require Avnet to register or qualify as a foreign corporation in
any State nor, except as to any matter or transaction relating to the sale
or delivery of such shares, to consent to service of process in any
State), and
(E) Avnet shall have received an opinion from its counsel with
respect to compliance with the matters set forth in clauses (A), (C) and
(D) above.
11. (a) In the event that the Stock shall be split up, divided or
otherwise reclassified into or exchanged for a greater or lesser number of
shares of Stock or into shares of Stock and/or any other securities of Avnet by
reason of recapitalization, reclassification, stock split or reverse split,
combination of shares or other reorganization, the term "Stock" as used herein
shall thereafter mean the number and kind of shares or other securities into
which the Stock shall have been so split up, divided or otherwise reclassified
or exchanged; and the remaining number of shares of Stock which may thereafter
be delivered pursuant to the exercise of the Option evidenced hereby shall be
correspondingly adjusted. In the event that any dividend payable in shares of
Stock is paid to the holders of outstanding shares of Stock, the remaining
number of shares of Stock which may thereafter be delivered pursuant to the
exercise of the Option evidenced hereby shall be increased by the percentage
which the number of shares of Stock so paid as a dividend bears to the total
number of shares of Stock outstanding immediately prior to the payment of such
dividend.
(b) Upon the occurrence of any event provided for in subparagraph
(a) above, the purchase price per share of Stock upon the exercise of the Option
evidenced hereby shall be appropriately and correspondingly adjusted.
12. In the event that, upon any adjustment made in accordance with
paragraph 11 above, the remaining number of shares of Stock which may thereafter
be delivered pursuant to the exercise of the Option evidenced hereby shall
include a fractional share of Stock, such fractional
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share of Stock shall be disregarded for all purposes of this Agreement and the
Optionee or any Successor Optionee shall become entitled neither to purchase the
same nor to receive cash or script in payment therefor or in lieu thereof.
13. Each certificate representing shares of Stock issued pursuant to
the exercise of the Option evidenced hereby shall, unless the shares of Stock
represented by any such certificate are, at the time of delivery thereof to the
Optionee or any Successor Optionee, registered under the Securities Act of 1933,
as amended, bear a legend to the effect that such shares may only be transferred
in such manner and under such conditions as do not involve a violation of said
Act. By the acceptance hereof, the Optionee, on behalf of himself and every
Successor Optionee and every other person who may succeed to his interest in the
shares of Stock subjected to the Option evidenced hereby, consents to the
stamping or imprinting of such legend on each certificate representing the same
and to any and all stop-transfer instructions, given by Avnet to its transfer
agents to effect the purposes of such legend, with respect to such shares and
any other shares of Stock owned by the Optionee, any such Successor Optionee or
any such other successor in interest.
14. This Option grant is intended to meet the requirements of an
"incentive stock option" ("ISO") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended. If for some reason this Option no
longer meets the requirements for ISO status and ceases to qualify for the
favorable tax treatment afforded ISOs, the Option shall continue according to
its terms, and shall then be treated for tax purposes as a non-qualified option.
The ultimate tax treatment shall not affect the existence or validity of the
Option.
15. Any question of interpretation or application of the terms of
this Option Agreement shall be determined by the Committee, and such
determination shall be final and binding upon the Optionee and all Successor
Optionees.
16. This Option Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns,
including all Successor Optionees, and no other person shall have any right or
obligation hereunder.
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17. The Optionee acknowledges that a copy of the Plan, the Plan
prospectus and a copy of Avnet's most recent annual report to its shareholders
has been delivered to the Optionee, and a copy of each and every amendment to
the Plan prospectus shall be delivered to the Optionee or any Successor Optionee
as soon as practicable after adoption thereof. Avnet will also provide without
charge all future annual reports to shareholders, proxy statements and other
communications that Avnet distributes to its shareholders until such time as
this option expires, terminates or has been exercised in full.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the day and year first above written.
AVNET, INC.
By
Xxxxxxx Xxxxxxxx - Sr. Vice President
and Chief Financial Officer
Optionee -<>
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