Exhibit 4.9
divine, inc.
Incentive Stock Option Agreement
Granted Under the Open Market, Inc.
1999 Stock Incentive Plan
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Explanatory Note
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On October 19, 2001, divine, inc. acquired Open Market, Inc. in a
stock-for-stock merger. As a result, any outstanding options to purchase
shares of Open Market common stock were converted into options to purchase
shares of class A common stock, par value $0.001 per share, of divine. Each
Open Market option now represents an option to purchase a number of divine
shares equal to the number of Open Market shares subject to such Open
Market option multiplied by 0.8326, the exchange ratio in the merger. The
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exercise price for each converted divine option equals the exercise price
of the Open Market option divided by 0.8326.
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Other than as set forth in the paragraph above, the rights and obligations
of each holder of Open Market options granted pursuant to this agreement
remain in full force and effect
1. Grant of Option
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This agreement evidences the grant by divine, inc., a Delaware corporation
(the "Company") , on __________ to __________, an employee of the Company
(the "Participant"), of an option to purchase, in whole or in part, on the
terms provided herein and in the Open Market, Inc. 1999 Stock Incentive
Plan (the "Plan"), a total of ____ shares (the "Shares") of class A common
stock, $.001 par value per share, of the Company ("Common Stock") at $_____
per share. Unless earlier terminated, this option shall expire on
__________ (the "Final Exercise Date").
It is intended that the option evidenced by this agreement shall be an
incentive stock option as defined in Section 422 of the Internal Revenue
Code of 1986, as amended and any regulations promulgated thereunder (the
"Code"). Except as otherwise indicated by the context, the term
"Participant", as used in this option, shall be deemed to include any
person who acquires the right to exercise this option validly under its
terms.
2. Vesting Schedule
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Vesting Schedule. Except as otherwise provided in this Agreement, this
option may be exercised during the period commencing __________ and ending
on the Final Exercise Date in installments as follows: (1) [quarter] shares
as of the one year anniversary date of the Grant Date (the "Initial Vesting
Date") and (2) for each subsequent three-month period following the Initial
Vesting Date, as to no more than the number of shares equal to the product
of (i) [remainder] multiplied by (ii) the number of consecutive three-month
periods that the Optionee is employed by the Company after __________.
The right of exercise shall be cumulative so that to the extent the option
is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all shares
for which it is vested until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof of the Plan.
3. Exercise of Option.
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a) Form of Exercise. Each election to exercise this option shall be
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in writing, signed by the Participant, and received by the Company at
its principal office, accompanied by this agreement, and payment in
full in the manner provided in the Plan. The Participant may purchase
less than the number of shares
covered hereby, provided that no partial exercise of this option may
be for any fractional share or for fewer than ten whole shares.
b) Continuous Relationship with the Company Required. Except as
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otherwise provided in this Section 3, this option may not be exercised
unless the Participant, at the time he or she exercises this option,
is, and has been at all times since the Grant Date, an employee,
officer or director of, or consultant or advisor to, the Company or
any parent or subsidiary of the Company as defined in Section 424(e)
or (f) of the Code (an "Eligible Participant").
c) Termination of Relationship with the Company. If the Participant
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Participant for any reason, then, except as provided in paragraphs (d)
and (e) below, the right to exercise this option shall terminate three
months after such cessation (but in no event after the Final Exercise
Date), provided that this option shall be exercisable only to the
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extent that the Participant was entitled to exercise this option on
the date of such cessation. Notwithstanding the foregoing, if the
Participant, prior to the Final Exercise Date, violates the
non-competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure agreement or other
agreement between the Participant and the Company, the right to
exercise this option shall terminate immediately upon written notice
to the Participant from the Company describing such violation.
d) Exercise Period Upon Death or Disability. If the Participant dies or
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becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Final Exercise Date while he or she is an Eligible
Participant and the Company has not terminated such relationship for
"cause" as specified in paragraph (e) below, this option shall be
exercisable, within the period of one year following the date of death
or disability of the Participant by the Participant, provided that
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this option shall be exercisable only to the extent that this option
was exercisable by the Participant on the date of his or her death or
disability, and further provided that this option shall not be
exercisable after the Final Exercise Date.
e) Discharge for Cause. If the Participant, prior to the Final Exercise
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Date, is discharged by the Company for "cause" (as defined below), the
right to exercise this option shall terminate immediately upon the
effective date of such discharge. "Cause" shall mean willful
misconduct by the Participant or willful failure by the Participant to
perform his or her responsibilities to the Company (including, without
limitation, breach by the Participant of any provision of any
employment, consulting, advisory, nondisclosure, non-competition or
other similar agreement between the Participant and the Company), as
determined by the Company, which determination shall be conclusive.
The Participant shall be considered to have been discharged for
"Cause" if the Company determines, within 30 days after the
Participant's resignation, that discharge for cause was warranted.
4. Withholding.
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No Shares will be issued pursuant to the exercise of this option
unless and until the Participant pays to the Company, or makes
provision satisfactory to the Company for payment of, any federal,
state or local withholding taxes required by law to be withheld in
respect of this option.
5. Nontransferability of Option.
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This option may not be sold, assigned, transferred, pledged or
otherwise encumbered by the Participant, either voluntarily or by
operation of law, except by will or the laws of descent and
distribution, and, during the lifetime of the Participant, this option
shall be exercisable only by the Participant.
6. Disqualifying Disposition.
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If the Participant disposes of Shares acquired upon exercise of this
option within two years from the Grant Date or one year after such
Shares were acquired pursuant to exercise of this option, the
Participant shall notify the Company in writing of such disposition.
7. Provisions of the Plan.
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This option is subject to the provisions of the Plan, a copy of which
is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed under
its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
Date of Grant: ___________ divine, inc.
By:___________________________
Title: _______________________
Address: 0 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of the
Company's 1999 Stock Incentive Plan.
PARTICIPANT
Signature ___________________________
Name: ___________________________
Address: ___________________________
___________________________
Date: ___________________________
