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Exhibit 4.4
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
STOCK OPTION AGREEMENT
Number of Shares of Stock
Option No. Subject to this Option: _____
THIS AGREEMENT, effective as of the _____ day of _______________, 199_ is
entered into by and between Diamond Technology Partners Incorporated, a
Delaware corporation, (the "Company") and _____________________________________
(the "Optionee").
WHEREAS, the Company has adopted the Diamond Technology Partners
Incorporated 1994 Stock Option Plan (as amended from time to time, the "Plan"),
which provides for the grant of qualified stock options (the "Options") to
employees of the Company as selected by the Company's Operations Committee (the
"Committee") to purchase shares of no par value common stock of the Company;
WHEREAS, the Optionee has been selected by the Committee to receive an
Option in accordance with the provisions of the Plan:
WHEREAS, the parties hereto desire to evidence in writing the terms and
conditions of the Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained and as an inducement to the Optionee
to continue as an employee of the Company, the parties hereto hereby agree as
follows:
1. DEFINITIONS.
------------
All capitalized terms used herein shall have the same meanings as are
ascribed to them in the Plan, unless expressly provided otherwise.
(a) "Date of Grant" shall mean the date of this Option Agreement as set
forth above.
(b) "Disability" shall mean any medically determinable physical or mental
impairment that, in the opinion of the Committee, based upon medical
reports and other evidence satisfactory to the Committee, can reasonably
be expected to prevent the Optionee from performing substantially all of
his customary duties of employment for a continuous period of not less
than twelve (12) months.
(c) "Employee" shall mean a salaried employee of the Company.
(d) "IPO" shall mean the closing of an initial public offering of Stock
registered
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under the Securities Act of 1933, as amended.
(e) "Option Shares" shall mean the shares of Stock transferred
pursuant to the exercise of this Option.
(f) "Shareholders Agreement" shall mean that certain Amended and
Restated Voting and Stock Restriction Agreement dated as of the 1st day
of April, 1996, among the Company, the Investor Group and certain other
shareholders of the Company, as amended.
(g) "Stock" shall mean the no par value Common Stock of the Company.
(h) "Warrant" shall mean that certain Warrant to Purchase Shares of
Common Stock of the Company dated March 22, 1994 and issued to Safeguard
Scientifics, Inc.
2. GRANT OF OPTION; EXERCISE PRICE.
--------------------------------
The Committee, on behalf of the Company, hereby awards to the Optionee
this Option to purchase all or any part of the number of shares of Stock set
forth above at the Exercise Price of $____ per share, on the terms and
conditions set forth herein and subject in all respects to the terms and
provisions of the Plan, which is incorporated herein by reference.
3. RESTRICTIONS ON TRANSFER.
-------------------------
This Option may not be transferred, assigned, pledged or hypothecated in
any way and will not be subject to execution, attachment or similar process,
except by will or under the laws of descent and distribution or pursuant to a
domestic relations order issued by a court of competent jurisdiction and, in
any event, will be subject to the Plan and the Shareholders Agreement. The
Option Shares may be transferred, assigned, pledged or hypothecated,
voluntarily, involuntarily or by operation of law, only as provided in the
Shareholders Agreement.
This Option will terminate immediately upon any attempted transfer,
assignment, pledge or hypothecation of this Option in violation of this Section
3, and any attempted transfer, assignment, pledge or hypothecation of any
Option Shares in violation of this Section 3 will be void without further
action by the Company and have no effect.
4. RESTRICTIONS ON VOTING.
-----------------------
As provided in the Shareholders Agreement, until the occurrence of an IPO,
Option Shares will be voted by the Chief Executive Officer of the Company,
pursuant to an irrevocable proxy, executed by the Optionee upon the exercise of
this Option.
5. VESTING OF OPTION.
------------------
This Option is exercisable only upon and after vesting. Except as
provided below in this
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Section 5, this Option shall fully vest upon the third anniversary of the Date
of Grant.
The above vesting schedule assumes the Optionee's continuous employment
with the Company. Except as provided below, no portion of this Option shall
vest after the date the Optionee ceases to be an Employee for any reason, and
any unvested portion of this Option theretofore held by the Optionee in such
case shall be cancelled as of that date.
Notwithstanding anything to the contrary above, if the Optionee dies or
suffers a Disability during the vesting period described in this Section 5, and
the Optionee was an Employee at the time of such death or Disability, the
unvested portion of this Option shall automatically vest on the date of death
or Disability.
6. WHEN OPTION MAY BE EXERCISED.
-----------------------------
(a) Except as provided in subsections (b) and (c) of this Section 6, the
vested portion of this Option shall be exercised, if at all, by the
Optionee at any time before the fifth anniversary of its Date of Grant.
(b) If the Optionee ceases to be an Employee for any reason, the
Optionee's vested Options must be exercised, if at all, not later than 90
days following the date the Optionee ceases to be an Employee. Any
unvested portion of this Option terminates immediately upon the cessation
of employment of the Optionee.
(c) The Company shall notify the Optionee of any transaction involving
the sale of all the Stock; such notice to be given at such time as the
Company determines under the circumstances, provided that the Optionee
shall have a reasonable time to consider and effect the Optionee's
election as provided hereafter. If the Optionee desires to exercise the
vested portion of this Option prior to such sale and so notifies the
Company, the Company may elect to pay the Optionee the excess of the
amount received or to be received for the Option Shares over the amount
that would have been received from the Optionee upon the exercise of the
vested portion of this Option. The vested portion of this Option shall
not be exercisable after the closing of such sale and this Option, vested
or unvested, if not exercised as provided above, shall terminate upon the
closing of such sale.
7. EXERCISE OF OPTION.
-------------------
During the Optionee's lifetime, this Option shall be exercisable only by
the Optionee or his legal representative or guardian. This Option shall not be
exercisable by the spouse of the Optionee during the Optionee's lifetime,
unless such spouse is acting in his or her capacity as the legal representative
or guardian of the Optionee. In the event of the Optionee's death, this Option
shall be exercisable by the person or entity (including the Optionee's estate)
that has obtained the Optionee's rights under the Option by will or under the
laws of descent and distribution.
This Option may be exercised by submitting to the Company (a) a Notice of
Exercise in
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the form attached hereto as Exhibit A, (b) any other written representations,
covenants, and other undertakings that the Company may prescribe pursuant to
the Shareholders Agreement or to satisfy securities laws and regulations or
other requirements, and (c) a certified or bank cashier's check payable to the
order of the Company in an amount equal to the full purchase price (the number
of Option Shares multiplied by the Exercise Price) of the shares to be
purchased.
By accepting this Option, the Optionee consents to any withholding from
the Optionee's wages as described in Section 17 of the Plan.
8. MODIFICATION OF OPTION.
-----------------------
At any time and from time to time the Committee may cause the Company to
execute an instrument providing for modification, extension, or renewal of this
Option, provided that no such modification, extension or renewal shall impair
the Option in any respect without the consent of the Optionee.
9. SHAREHOLDER RIGHTS.
-------------------
The Optionee shall have none of the rights of a shareholder with respect
to the Option Shares subject to the Option until the transfer of such shares to
the Optionee has been duly recorded on the stock transfer books of the Company
upon the exercise of the Option. As a precondition to the transfer of the
Option Shares to the Optionee, the Optionee shall execute and deliver to the
Company, in the form prescribed by the Company, either a counterpart of the
Shareholders Agreement or an agreement under which the Optionee adopts and
agrees to be bound by the Shareholders Agreement. The certificates representing
the Option Shares shall bear the legends as provided in the Plan or the
Shareholders Agreement.
10. DILUTION.
---------
The Optionee acknowledges that upon the issuance of shares to any person
(other than an issuance described in the first paragraph of Section 4 of the
Plan), whether pursuant to the exercise of the Warrant or otherwise, the
Optionee will suffer a corresponding dilution of the Optionee's interest in the
Stock.
11. COOPERATION WITH IPO.
---------------------
The Optionee shall cooperate in all respects with the Company in
connection with any proposed IPO or other registration of the Stock.
12. CONTINUED EMPLOYMENT NOT PRESUMED.
----------------------------------
Nothing in the Plan or any document describing it nor this Agreement shall
give the Optionee the right to continue in employment with the Company or
affect the right of the Company to terminate the employment of the Optionee,
with or without cause, at any time.
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13. QUALIFIED INCENTIVE STOCK OPTION.
---------------------------------
To the extent that the aggregate Fair Market Value (as of the Date of
Grant) of the Option Shares issuable under all Options (including this Option)
granted to an individual which are exercisable for the first time by such
individual during any calendar year exceeds $100,000, such Options shall be
treated as options that are not "incentive stock options" under the Code. The
Plan is not intended to qualify as an "employee stock purchase plan" within the
meaning of Internal Revenue Code Section 423.
14. RECEIPT AND REVIEW OF PLAN.
---------------------------
The Optionee acknowledges receipt of a copy of the Plan and the
Shareholders Agreement and further acknowledges notice of the terms,
conditions, restrictions and limitations contained therein, including the
existence of certain agreements with third parties that may affect the shares
as set forth in Section 18 of the Plan, securities law restrictions as set
forth in Section 15 of the Plan, the possibility of a reduction in shares as
set forth in Section 5 of the Plan, and the repurchase option set forth in the
Shareholders Agreement.
15. CONFLICTS.
----------
The Company and the Optionee agree to be bound by all of the terms,
conditions, restrictions and limitations of the Plan as the same shall be
amended from time to time in accordance with the terms thereof, but no such
amendment shall, without the Optionee's consent, adversely affect the rights
specifically granted the Optionee hereunder. In the event of any conflict
between the provisions of this Agreement and the Plan, the provisions of the
Plan shall control.
16. NOTICES.
--------
All notices by one party to the other under this Agreement shall be in
writing. Any notice under this Agreement to the Committee or to the Company
shall be addressed to the Company at Suite 3000, 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, and any notice to the Optionee shall be addressed to
the Optionee at the address listed beneath the Optionee's signature hereto. If
mailed by United States mail, properly addressed and proper postage prepaid or
if sent by recognized overnight courier service, notice shall be effective on
the date of mailing or delivery to such courier. If served personally, notice
shall be effective as of the date of delivery to the address of the party to
whom the notice is addressed. If the effective date as provided above is not a
business day, the effective date shall be the next regular business day.
Either party may at any time notify the other in writing of a new address for
service of notice upon that party.
17. SEVERABILITY.
-------------
If any provision of this Agreement for any reason should be found by any
arbitrator or court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality, or enforceability of any remaining provision or portion
hereof, which remaining provision or portion shall remain in full force and
effect as if this
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Agreement had been adopted with the invalid, illegal or unenforceable provision
or portion eliminated.
18. HEADINGS.
---------
The headings and captions utilized in this Agreement shall not be
construed to limit or modify the terms or meaning of this Agreement.
19. AGREED FORUM.
-------------
All acts required to be performed by the Optionee hereunder shall be
deemed to be performed in Chicago, Xxxx County, Illinois, and the Optionee
hereby submits to the jurisdiction of any state or Federal court located in
Chicago, Illinois and waives any and all objections to the jurisdiction of such
counts and the venue of any action brought therein.
20. ARBITRATION.
------------
At the election of the Company, any dispute arising under this Agreement
will be settled by final and binding arbitration conducted in accordance with
and subject to the Commercial Arbitration Rules of the American Arbitration
Association. To the extent permitted or required by law, judgment upon the
decision rendered in any such arbitration may be entered in any court having
jurisdiction thereof, or application may be made to such court for a judicial
acceptance of the decision and enforcement thereof.
21. EQUITABLE RELIEF.
-----------------
The Company shall be entitled to enforce the terms and provisions of this
Agreement by an action for injunction or specific performance or an action for
damages or all of them, or may be made the subject of the arbitration
proceedings described in the preceding section.
22. APPLICABLE STATE LAW.
---------------------
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Illinois.
23. SUCCESSORS AND ASSIGNS.
-----------------------
Subject to the limitations of the transferability of this Option, this
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of the parties hereto.
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24. JOINDER OF SPOUSE.
------------------
The Optionee's spouse has executed this Agreement for the purpose of
evidencing his or her consent to the agreements herein contained and for the
further purpose of agreeing that any community property interest, or other
right, title or interest, which he or she may have in this Option or in Option
Shares issued in the Optionee's name shall be subject to and bound by the terms
herein. The Optionee agrees to cause any future spouse of such Optionee to
execute a counterpart of this Agreement agreeing to be likewise bound.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
OPTIONEE: THE COMPANY:
Diamond Technology Partners Incorporated
By:________________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer and President
ADDRESS:
______________________________
______________________________
SPOUSE OF OPTIONEE:
______________________________
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EXHIBIT A
TO
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
1994 STOCK OPTION PLAN
NOTICE OF EXERCISE
(to be executed only upon exercise of the Option)
Reference is made to the Diamond Technology Partners Incorporated Option
Agreement, dated as of _____________________, 199__ (the "Option Agreement"),
between Diamond Technology Partners Incorporated, a Delaware corporation (the
"Company"); ____________________________________ (the "Optionee"). Capitalized
terms used herein and not otherwise defined have the meanings assigned to such
terms in the Option Agreement.
1. The Optionee hereby irrevocably exercises the option for and Purchases
___________ shares of Stock.
2. The full purchase price for the shares of Stock being purchased hereunder,
calculated in accordance with the Option Agreement, is $_______________, and
the Optionee is delivering to the Company simultaneously with the delivery of
this Notice of Exercise a certified or bank cashier's check payable to the
order of the Company in such amount.
3. The shares of Stock being purchased hereunder are being acquired for
the Optionee's own account and not with a view to distribution thereof in
violation of applicable Federal or state securities laws.
4. The Optionee hereby agrees to be bound, with respect to the shares of
Stock being purchased hereunder, by the Shareholders Agreement and agrees to
execute or adopt such Shareholders Agreements as prescribed by the Company, as
a condition to receipt of the shares of Stock.
5. The Optionee requests that certificates for the shares of Stock being
purchased hereunder be issued in the name of and delivered to the Optionee at
the following address:
_________________________
_________________________
_________________________
Dated as of ____________________ ______________________________
(Signature)
______________________________
(Name)
______________________________
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(Signature of Spouse)
______________________________
(Name)
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DIAMOND TECHNOLOGY PARTNERS INCORPORATED
STOCK OPTION AGREEMENT
Number of Shares of Stock
Option No. 1 Subject to this Option:
THIS AGREEMENT, effective as of the _____ day of _______________, 1996 is
entered into by and between Diamond Technology Partners Incorporated, a
Delaware corporation, (the "Company") and ____________________ (the "Optionee").
WHEREAS, the Company has adopted the Diamond Technology Partners
Incorporated 1994 Stock Option Plan (as amended from time to time, the "Plan"),
which provides for the grant of qualified stock options (the "Options") to
employees of the Company as selected by the Company's Operations Committee (the
"Committee") to purchase shares of no par value common stock of the Company;
WHEREAS, the Optionee has been selected by the Committee to receive an
Option in accordance with the provisions of the Plan:
WHEREAS, the parties hereto desire to evidence in writing the terms and
conditions of the Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained and as an inducement to the Optionee
to continue as an employee of the Company, the parties hereto hereby agree as
follows:
1. DEFINITIONS.
------------
All capitalized terms used herein shall have the same meanings as are
ascribed to them in the Plan, unless expressly provided otherwise.
(a) "Date of Grant" shall mean the date of this Option Agreement as
set forth above.
(b) "Disability" shall mean any medically determinable physical or
mental impairment that, in the opinion of the Committee, based upon
medical reports and other evidence satisfactory to the Committee, can
reasonably be expected to prevent the Optionee from performing
substantially all of his customary duties of employment for a continuous
period of not less than twelve (12) months.
(c) "Employee" shall mean a salaried employee of the Company.
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(d) "IPO" shall mean the closing of an initial public offering of the
Stock registered under the Securities Act of 1933, as amended.
(e) "Option Shares" shall mean the shares of Stock transferred
pursuant to the exercise of this Option.
(f) "Shareholders Agreement" shall mean that certain Amended and
Restated Voting and Stock Restriction Agreement dated as of the 1st day
of April, 1996 among the Company, the Investor Group and certain other
shareholders of the Company, as amended.
(g) "Stock" shall mean the no par value common stock of the Company.
(h) "Vesting Date" shall mean the April 1st of the calendar year in
which the Date of Grant has occurred, if the Date of Grant is a date
after March 31st of such year, but before October 1st of the same year;
otherwise, the Vesting Date shall mean the preceding October 1st except
in the event the Date of Grant is October 1st, in which case the Vesting
Date shall be the Date of Grant.
(i) "Warrant" shall mean that certain Warrant to Purchase Shares of
Common Stock of the Company dated March 22, 1994 and issued to Safeguard
Scientifics, Inc.
2. GRANT OF OPTION; EXERCISE PRICE.
--------------------------------
The Committee, on behalf of the Company, hereby awards to the Optionee
this Option to purchase all or any part of the number of shares of Stock set
forth above at the Exercise Price of $____ per share, on the terms and
conditions set forth herein and subject in all respects to the terms and
provisions of the Plan, which is incorporated herein by reference.
3. RESTRICTIONS ON TRANSFER.
-------------------------
This Option may not be transferred, assigned, pledged or hypothecated in
any way and will not be subject to execution, attachment or similar process,
except by will or under the laws of descent and distribution or pursuant to a
domestic relations order issued by a court of competent jurisdiction and, in
any event, will be subject to the Plan and the Shareholders Agreement. The
Option Shares may be transferred, assigned, pledged or hypothecated,
voluntarily, involuntarily or by operation of law, only as provided in the
Shareholders Agreement.
This Option will terminate immediately upon any attempted transfer,
assignment, pledge or hypothecation of this Option in violation of this Section
3, and any attempted transfer, assignment, pledge or hypothecation of any
Option Shares in violation of this Section 3 will be void without further
action by the Company and have no effect.
4. VOTING OF OPTION SHARES.
------------------------
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As provided in the Shareholders Agreement, until the occurrence of an IPO,
Option Shares will be voted by the Chief Executive Officer of the Company,
pursuant to an irrevocable proxy, executed by the Optionee upon the exercise of
this Option.
5. VESTING OF OPTION.
------------------
This Option is exercisable only upon and after vesting. Except as
provided in Section 6 hereof, this Option shall vest according to the following
schedule:
(a) as to ten percent (10%) of the Option Shares, on
the first anniversary of the Vesting Date;
(b) as to an additional fifteen percent (15%) of the
Option Shares, on the second anniversary of the Vesting Date;
and
(c) as to an additional twenty-five percent (25%) of
the Option Shares, on each of the third, fourth, and fifth
anniversaries of the Vesting Date.
The above vesting schedule assumes the Optionee's continuous employment
with the Company. Except as provided in Section 6 hereof, no portion of this
Option shall vest after the date the Optionee ceases to be an Employee for any
reason, and any unvested portion of this Option theretofore held by the
Optionee in such case shall be canceled as of that date.
6. SPECIAL VESTING RULES.
----------------------
Notwithstanding anything to the contrary in Section 5 hereof, if the
Optionee dies or suffers a Disability during the vesting period described in
said Section 5, and the Optionee was an Employee at the time of such death or
Disability, the unvested portion of this Option shall automatically vest on the
date of death or Disability.
7. WHEN OPTION MAY BE EXERCISED.
-----------------------------
(a) Except as provided in subsections (b) and (c) of this Section 7,
the vested portion of this Option shall be exercised, if at all, by the
Optionee at any time before the seventh anniversary of its Date of Grant.
(b) If the Optionee ceases to be an Employee for any reason, the
vested portions of the Optionee's Options must be exercised, if at all,
not later than 90 days following the date the Optionee ceases to be an
Employee. Any unvested portion of this Option terminates immediately
upon the cessation of employment of the Optionee.
(c) The Company shall notify the Optionee of any transaction
involving the sale of all the Stock; such notice to be given at such time
as the Company determines under the circumstances, provided that the
Optionee shall have a reasonable time to consider and effect the
Optionee's election as provided hereafter. If the Optionee desires
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to exercise the vested portion of this Option prior to such sale and so
notifies the Company, the Company may elect to pay the Optionee the excess
of the amount received or to be received for the Option Shares over the
amount that would have been received from the Optionee upon the exercise
of the vested portion of this Option. The vested portion of this Option
shall not be exercisable after the closing of such sale and this Option,
vested or unvested, if not exercised as provided above, shall terminate
upon the closing of such sale.
8. EXERCISE OF OPTION.
-------------------
During the Optionee's lifetime, this Option shall be exercisable only by
the Optionee or his legal representative or guardian. This Option shall not be
exercisable by the spouse of the Optionee during the Optionee's lifetime,
unless such spouse is acting in his or her capacity as the legal representative
or guardian of the Optionee. In the event of the Optionee's death, this Option
shall be exercisable by the person or entity (including the Optionee's estate)
that has obtained the Optionee's rights under the Option by will or under the
laws of descent and distribution.
This Option may be exercised by submitting to the Company (a) a Notice of
Exercise in the form attached hereto as Exhibit A, (b) any other written
representations, covenants, and other undertakings that the Company may
prescribe pursuant to the Shareholders Agreement or to satisfy securities laws
and regulations or other requirements, and (c) a certified or bank cashier's
check payable to the order of the Company in an amount equal to the full
purchase price (the number of Option Shares multiplied by the Exercise Price)
of the shares to be purchased.
By accepting this Option, the Optionee consents to any withholding from
the Optionee's wages as described in Section 17 of the Plan.
9. MODIFICATION OF OPTION.
-----------------------
At any time and from time to time, the Committee may cause the Company to
execute an instrument providing for modification, extension, or renewal of this
Option, provided that no such modification, extension or renewal shall impair
the Option in any respect without the consent of the Optionee.
10. SHAREHOLDER RIGHTS.
-------------------
The Optionee shall have none of the rights of a shareholder with respect
to the Option Shares subject to the Option until the transfer of such shares to
the Optionee has been duly recorded on the stock transfer books of the Company
upon the exercise of the Option. As a precondition to the transfer of the
Option Shares to the Optionee, the Optionee shall execute and deliver to the
Company, in the form prescribed by the Company, either a counterpart of the
Shareholders Agreement or an agreement under which the Optionee adopts and
agrees to be bound by the Shareholders Agreement. The certificates representing
the Option Shares shall bear the legends as provided in the Plan or the
Shareholders Agreement.
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11. DILUTION.
---------
The Optionee acknowledges that upon the issuance of shares to any person
(other than an issuance described in the first paragraph of Section 4 of the
Plan), whether pursuant to the exercise of the Warrant or otherwise, the
Optionee will suffer a corresponding dilution of the Optionee's interest in the
Stock.
12. COOPERATION WITH IPO.
---------------------
The Optionee shall cooperate in all respects with the Company in
connection with any proposed IPO or other registration of the Stock.
13. CONTINUED EMPLOYMENT NOT PRESUMED.
----------------------------------
Nothing in the Plan or any document describing it nor this Agreement shall
give the Optionee the right to continue in employment with the Company or
affect the right of the Company to terminate the employment of the Optionee,
with or without cause, at any time.
14. QUALIFIED INCENTIVE STOCK OPTION.
---------------------------------
To the extent that the aggregate Fair Market Value (as of the Date of
Grant) of the Option Shares issuable under all Options (including this Option)
granted to an individual which are exercisable for the first time by such
individual during any calendar year exceeds $100,000, such Options shall be
treated as options that are not "incentive stock options" under the Code. The
Plan is not intended to qualify as an "employee stock purchase plan" within the
meaning of Internal Revenue Code Section 423.
15. RECEIPT AND REVIEW OF PLAN AND SHAREHOLDERS AGREEMENT.
------------------------------------------------------
The Optionee acknowledges receipt of copies of the Plan and the
Shareholders Agreement and further acknowledges notice of the terms,
conditions, restrictions and limitations contained therein, including the
existence of certain agreements with third parties that may affect the shares
as set forth in Section 18 of the Plan, securities law restrictions as set
forth in Section 15 of the Plan, the possibility of a reduction in shares as
set forth in Section 5 of the Plan, and the repurchase options set forth in the
Shareholders Agreement.
16. CONFLICTS.
----------
The Company and the Optionee shall be bound by all of the terms,
conditions, restrictions and limitations of the Plan as the same shall be
amended from time to time in accordance with the terms thereof, but no such
amendment shall, without the Optionee's consent, adversely affect the rights
specifically granted the Optionee hereunder. In the event of any conflict
between the provisions of this Agreement and the Plan, the provisions of the
Plan shall control.
17. NOTICES.
--------
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All notices by one party to the other under this Agreement shall be in
writing. Any notice under this Agreement to the Committee or to the Company
shall be addressed to the Company at Suite 3000, 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, and any notice to the Optionee shall be addressed to
the Optionee at the address listed beneath the Optionee's signature hereto. If
mailed by United States mail, properly addressed and proper postage prepaid or
if sent by recognized overnight courier service, notice shall be effective on
the date of mailing or delivery to such courier. If served personally, notice
shall be effective as of the date of delivery to the address of the party to
whom the notice is addressed. If the effective date as provided above is not a
business day, the effective date shall be the next regular business day.
Either party may at any time notify the other as provided above of a new
address for service of notice upon that party.
18. SEVERABILITY.
-------------
If any provision of this Agreement for any reason should be found by any
arbitrator or court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality, or enforceability of any remaining provision or portion
hereof, which remaining provision or portion shall remain in full force and
effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion eliminated.
19. HEADINGS.
---------
The headings and captions utilized in this Agreement shall not be
construed to limit or modify the terms or meaning of this Agreement.
20. AGREED FORUM.
-------------
All acts required to be performed by the Optionee hereunder shall be
deemed to be performed in Chicago, Xxxx County, Illinois, and the Optionee
hereby submits to the jurisdiction of any state or Federal court located in
Chicago, Illinois and waives any and all objections to the jurisdiction of such
courts and the venue of any action brought therein.
21. ARBITRATION.
------------
At the election of the Company, any dispute arising under this Agreement
will be settled by final and binding arbitration conducted in accordance with
and subject to the Commercial Arbitration Rules of the American Arbitration
Association. To the extent permitted or required by law, judgment upon the
decision rendered in any such arbitration may be entered in any court having
jurisdiction thereof, or application may be made to such court for a judicial
acceptance of the decision and enforcement thereof.
22. EQUITABLE RELIEF.
-----------------
The Company shall be entitled to enforce the terms and provisions of this
Agreement by
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an action for injunction or specific performance or an action for damages or
all of them, or may be made the subject of the arbitration proceedings
described in the preceding section.
23. APPLICABLE STATE LAW.
---------------------
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Illinois.
24. SUCCESSORS AND ASSIGNS.
-----------------------
Subject to the limitations on the transferability of this Option, this
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of the parties hereto.
25. JOINDER OF SPOUSE.
------------------
The Optionee's spouse has executed this Agreement for the purpose of
evidencing his or her consent to the agreements herein contained and for the
further purpose of agreeing that any community property interest, or other
right, title or interest, which he or she may have in this Option or in Option
Shares issued in the Optionee's name shall be subject to and bound by the terms
herein. The Optionee agrees to cause any future spouse of such Optionee to
execute a counterpart of this Agreement agreeing to be likewise bound.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
OPTIONEE: THE COMPANY:
Diamond Technology Partners Incorporated
By:__________________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer and President
ADDRESS:
______________________________
______________________________
SPOUSE OF OPTIONEE:
______________________________
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EXHIBIT A
TO
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
1994 STOCK OPTION PLAN
NOTICE OF EXERCISE
(to be executed only upon exercise of the Option)
Reference is made to the Diamond Technology Partners Incorporated Option
Agreement, dated as of _____________ _____, 199__ (the "Option Agreement"),
between Diamond Technology Partners Incorporated, a Delaware corporation (the
"Company"); _________ ___________________________________ (the "Optionee").
Capitalized terms used herein and not otherwise defined have the meanings
assigned to such terms in the Option Agreement.
1. The Optionee hereby irrevocably exercises the option for and Purchases
_______________ shares of Stock.
2. The full purchase price for the shares of Stock being purchased
hereunder, calculated in accordance with the Option Agreement, is
$_______________, and the Optionee is delivering to the Company simultaneously
with the delivery of this Notice of Exercise a certified or bank cashier's
check payable to the order of the Company in such amount.
3. The shares of Stock being purchased hereunder are being acquired for
the Optionee's own account and not with a view to distribution thereof in
violation of applicable Federal or state securities laws.
4. The Optionee hereby agrees to be bound, with respect to the shares of
Stock being purchased hereunder, by the Shareholders Agreement and agrees to
execute or adopt such Shareholders Agreement as prescribed by the Company, as a
condition to receipt of the shares of Stock.
5. The Optionee requests that certificates for the shares of Stock being
purchased hereunder be issued in the name of and delivered to the Optionee at
the following address:
_________________________
_________________________
_________________________
_________________________
Dated as of ____________________ ______________________________
(Signature)
______________________________
(Name)
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______________________________
(Signature of Spouse)
______________________________
(Name)
