DIGITAL INSIGHT CORPORATION
Exhibit 99.5
DIGITAL INSIGHT CORPORATION
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Digital Insight Corporation 1997
Stock Plan (the “Plan”), formerly the AnyTime Access, Inc. 1997 Stock Option Plan, shall have the
same defined meanings in this Stock Option Agreement (this “Option Agreement”).
| I. | NOTICE OF STOCK OPTION GRANT |
[Name]
[Address]
[Address]
[Address]
[Address]
The undersigned Optionee has been granted an Option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as follows:
Grant Number:
Date of Grant:
Vesting Commencement Date:
Exercise Price per Share:
Total Number of Shares Granted:
Total Exercise Price:
Type of Option:
|
o Incentive Stock Option | |
| (ISO to the maximum extent permissible under law) | ||
| o Nonstatutory Stock Option |
Term/Expiration Date:
Vesting Schedule
This Option shall be exercisable, in whole or in part, according to the following vesting
schedule:
___% of the Shares subject to this Option shall vest ___months after the Date of Grant,
provided that the Optionee continues to be a Service Provider on such date.
In the event of the Involuntary Termination (as defined below) or termination without Cause
(as defined below) of the Optionee’s employment or consulting relationship with the Company prior
to twelve (12) months after the Date of Grant, this Option shall become fully vested and
exercisable by the Optionee upon the date of such termination, at the exercise price per Share
specified above (as adjusted for any stock splits, stock dividends and the like). Except as
otherwise provided herein, if the Optionee ceases to be a Service Provider prior to twelve (12)
months after the Date of Grant, (a) this Option shall not vest and shall automatically terminate
and (b) the Shares subject to this option shall be deposited in the “Escrow Account” created
pursuant to the terms of the Agreement and Plan of Merger, dated as of March 30, 2000, as amended,
by and among the Company, ATA Acquisition Corp., and AnyTime Access, Inc.
For purposes of the preceding paragraph, the following terms shall be defined as follows:
“Involuntary Termination” means (a) a significant reduction in the position, duties and/or
responsibilities of the Optionee from the position, duties and responsibilities of the Optionee
prior to the Merger, (b) a greater than 10% reduction in the base compensation of the Optionee as
in effect immediately prior to the Merger, (c) a requirement by the Company that the Optionee
relocate or perform services at a location more than 50 miles from the present site of the
Optionee’s current office, or (d) a significant reduction in the employee benefit plans and
compensation programs applicable to the Optionee maintained by the Company prior to the Merger.
“Cause” means (a) the Optionee’s loss of legal capacity, (b) personal dishonesty by the
Optionee in performing his or her duties, (c) the Optionee’s gross negligence in performing his or
her duties, (d) the Optionee’s insubordination or material failure to follow the policies,
procedures, rules or regulations of the Company, (e) actions by the Optionee that are seriously
detrimental to the reputation of the Company, or (f) the Optionee’s conviction of a felony.
Exercise After Termination of Service
If (a) this Option vests pursuant to the terms described under “Vesting Schedule” above, and
(b) the Optionee subsequently ceases to be a Service Provider, then this Option shall be
exercisable as follows: (i) upon the Optionee’s death or disability, this Option may be exercised
for one year after the Optionee ceases to be a Service Provider; or (ii) otherwise, this Option may
be exercised for three (3) months after the Optionee ceases to be a Service Provider.
Expiration of Option
In no event may the Optionee exercise this Option after the Term/Expiration Date set forth
above.
Method of Exercise
This Option, if vested pursuant to the terms described under “Vesting Schedule” above, may be
exercised by the Optionee by written notice at any time (subject to the time period limitations
described under “Exercise After Termination of Service” and “Expiration of Option” above) by
delivering to the Company such notice and payment for the purchase price as described in Article II
of this Option Agreement.
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II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants to the
Optionee (the “Optionee”) named in the Notice of Stock Option Grant (the ”Notice of Grant”), an
option (the “Option”) to purchase the number of Shares set forth in the Notice of Grant, at the
exercise price per Share set forth in the Notice of Grant (the “Exercise Price”), and subject to
the terms and conditions of the Plan, which is incorporated herein by reference.
If designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this Option is
intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code.
Nevertheless, to the extent that it exceeds the $100,000 rule of Section 422(d) of the Code, this
Option shall be treated as a Nonstatutory Stock Option (“NSO”).
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its term in accordance
with the Vesting Schedule set out in the Notice of Grant and with the applicable provisions of the
Plan and this Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by delivery of an exercise
notice in the form attached as Exhibit A (the “Exercise Notice”) which shall state the election to
exercise this Option, the number of Shares with respect to which this Option is being exercised
(the “Exercised Shares”), and such other representations and agreements as may be required by the
Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to
all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of
such fully executed Exercise Notice accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option unless such issuance and
such exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to the Optionee on the date on which this Option is
exercised with respect to such Shares.
3. [Intentionally Omitted].
4. [Intentionally Omitted].
5. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash or check;
(b) consideration received by the Company under a formal cashless exercise program adopted by
the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares acquired upon exercise of an
option, have been owned by the Optionee for more than six (6) months on the date
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of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the
aggregate Exercise Price of the Exercised Shares.
6. Restrictions on Exercise. This Option may not be exercised if the issuance of such
Shares upon such exercise or the method of payment of consideration for such shares would
constitute a violation of any Applicable Law.
7. Non-Transferability of Option. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be exercised during the
lifetime of the Optionee only by the Optionee. The terms of the Plan and this Option Agreement
shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
8. Term of Option. This Option may be exercised only within the term set out in the
Notice of Grant, and may be exercised during such term only in accordance with the Plan and the
terms of this Option.
9. Tax Consequences. Set forth below is a brief summary, as of the date of this
Option, of some of the federal tax consequences of exercise of this Option and disposition of the
Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO
CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF
THE SHARES.
(a) Exercise of ISO. If this Option qualifies as an ISO, there will be no regular
federal income tax liability upon the exercise of this Option, although the excess, if any, of the
Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as
an adjustment to the alternative minimum tax for federal tax purposes and may subject the Optionee
to the alternative minimum tax in the year of exercise.
(b) Exercise of Nonstatutory Stock Option. There may be a regular federal income tax
liability upon the exercise of a Nonstatutory Stock Option. The Optionee will be treated as having
received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of
the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If the
Optionee is an Employee or a former Employee, the Company will be required to withhold from the
Optionee’s compensation or collect from the Optionee and pay to the applicable taxing authorities
an amount in cash equal to a percentage of this compensation income at the time of exercise, and
may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.
(c) Disposition of Shares. In the case of an NSO, if Shares are held for at least one
year, any gain realized on disposition of the Shares will be treated as long-term capital gain for
federal income tax purposes. In the case of an ISO, if Shares transferred pursuant to this Option
are held for at least one year after exercise and of at least two years after the Date of Grant,
any gain realized on disposition of the Shares will also be treated as long-term capital gain for
federal income tax purposes. If Shares purchased under an ISO are disposed of within one year
after exercise or two years after the Date of Grant, any gain realized on such disposition will be
treated as compensation income (taxable at ordinary income rates) to the extent of the
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difference between the Exercise Price and the lesser of (1) the Fair Market Value of the
Shares on the date of exercise, or (2) the sale price of the Shares. Any additional gain will be
taxed as capital gain, short-term or long-term depending on the period that the ISO Shares were
held.
(d) Notice of Disqualifying Disposition of ISO Shares. If this Option is an ISO, and
if the Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or
before the later of (1) the date two years after the Date of Grant, or (2) the date one year after
the date of exercise, the Optionee shall immediately notify the Company in writing of such
disposition. The Optionee agrees that the Optionee may be subject to income tax withholding by the
Company on the compensation income recognized by the Optionee.
10. Entire Agreement; Governing Law. The Plan is incorporated herein by reference.
The Plan and this Option Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings and agreements of
the Company and the Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee’s interest except by means of a writing signed by the Company and the
Optionee. This Option Agreement is governed by the internal substantive laws but not the choice of
law rules of California.
11. No Guarantee of Continued Service. THE OPTIONEE ACKNOWLEDGES AND AGREES THAT THE
VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE
PROVIDER AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION
OR ACQUIRING SHARES HEREUNDER). THE OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE
VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH THE OPTIONEE’S
RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE OPTIONEE’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY
TIME, WITH OR WITHOUT CAUSE.
[Remainder of page left blank intentionally]
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The Optionee acknowledges receipt of a copy of the Plan and represents that he or she is
familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of
the terms and provisions thereof. The Optionee has reviewed the Plan and this Option Agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to executing this
Option Agreement and fully understands all provisions of this Option Agreement. The Optionee
hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. The Optionee further
agrees to notify the Company upon any change in the residence address indicated below.
| OPTIONEE | DIGITAL INSIGHT CORPORATION | |||||
| By: | ||||||
| Its: | ||||||
| Residence Address: | Address: | |||||
| 00000 Xxxxxx Xxxx | ||||||
| Calabasas, California 91302 | ||||||
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EXHIBIT A
EXERCISE NOTICE
Digital Insight Corporation
00000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
00000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
1. Exercise of Option. Effective as of today, , 20 , the
undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase
shares of the Common Stock (the “Shares”) of Digital Insight Corporation (the
“Company”) under and pursuant to the 1997 Stock Plan (the “Plan”) and the Stock Option Agreement
dated , 20 (the “Option Agreement”).
2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase
price for the Shares, as set forth in the Option Agreement.
3. Representations of the Optionee. The Optionee acknowledges that the Optionee has
received, read and understood the Plan and the Option Agreement and agrees to abide by and be bound
by their terms and conditions.
4. Rights as Shareholder. Until the issuance of the Shares (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Shares, notwithstanding the exercise of the Option. The Shares shall be issued
to the Optionee as soon as practicable after the Option is exercised. No adjustment shall be made
for a dividend or other right for which the record date is prior to the date of issuance except as
provided in Section 12 of the Plan.
5. [Intentionally Omitted].
6. Tax Consultation. The Optionee understands that the Optionee may suffer adverse
tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee
represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in
connection with the purchase or disposition of the Shares and that the Optionee is not relying on
the Company for any tax advice.
7. [Intentionally Omitted].
8. Successors and Assigns. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
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this Agreement shall be binding upon the Optionee and his or her heirs, executors,
administrators, successors and assigns.
9. Interpretation. Any dispute regarding the interpretation of this Agreement shall
be submitted by the Optionee or by the Company forthwith to the Administrator, which shall review
such dispute at its next regular meeting. The resolution of such a dispute by the Administrator
shall be final and binding on all parties.
10. Governing Law; Severability. This Agreement is governed by the internal
substantive laws but not the choice of law rules, of California.
11. Entire Agreement. The Plan and Option Agreement are incorporated herein by
reference. This Agreement, the Plan, the Option Agreement and the Investment Representation
Statement constitute the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the Company and the
Optionee with respect to the subject matter hereof, and may not be modified adversely to the
Optionee’s interest except by means of a writing signed by the Company and the Optionee.
| Submitted by: | Accepted by: | |||||
| OPTIONEE | DIGITAL INSIGHT CORPORATION | |||||
| By: | ||||||
| Its: | ||||||
| Residence Address: | Address: | |||||
| 00000 Xxxxxx Xxxx | ||||||
| Calabasas, California 91302 | ||||||
| Date Received | ||||||
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