Exhibit 4.15
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ANNEX I
STOCK OPTION AGREEMENT
(Incentive Stock Option)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and
entered into on the execution date of the Option Certificate to which it is
attached (the "Certificate"), by and between Affiliated Research Centers, Inc.,
a California corporation (the "Company"), and the employee named in the
Certificate ("Employee").
Pursuant to the Affiliated Research Centers, Inc. 1994 Employee Stock
Incentive Plan (the "Plan"), the Board of Directors of the Company (the "Board")
has authorized the grant to Employee of an incentive stock option to purchase
shares of the Company's Common Stock, no par value (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Option Agreement and
in the Plan.
The Company and Employee agree as follows:
1. Grant of Option.
The Company hereby grants to Employee the right and option (the
"Option"), upon the terms and subject to the conditions set forth in this Option
Agreement, to purchase all or any portion of that number of shares of the Common
Stock (the "Shares") set forth in the Certificate, at the Option exercise price
set forth in the Certificate (the "Exercise Price").
2. Term of Option.
The Option shall terminate and expire on the Option Expiration Date
set forth in the Certificate, unless sooner terminated as provided herein.
3. Exercise Period.
(a) Subject to the provisions of Paragraphs 3(b), 5, 7(c) and 7(d) of
this Option Agreement, the Option shall become exercisable (in whole or in part)
upon and after the dates set forth under the caption "Exercise Schedule" in the
Certificate. The installments shall be cumulative; i.e., the Option may be
exercised, as to any or all Shares covered by an installment, at any time or
times after the installment first becomes exercisable and until expiration or
termination of the Option.
(b) Notwithstanding anything to the contrary contained in this Option
Agreement, the Option may not be exercised, in whole or in part, unless and
until any then-
applicable requirements of all federal, state and local laws and regulatory
agencies shall have been fully complied with to the satisfaction of the Company
and its counsel.
4. Exercise of Option.
There is no obligation to exercise the Option, in whole or in part.
The Option may be exercised, in whole or in part, only by delivery to the
Company of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares of
Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, by cancellation of any indebtedness of the Company to Employee
for accrued and unpaid salary, or with the consent of the Administrator of the
Plan, by transfer to the Company of issued and outstanding shares of Common
Stock, or by any combination of the above methods of payment. If payment is
made, in whole or in part, by transfer to the Company of issued and outstanding
shares of Common Stock, the value of such shares shall be determined as follows:
(i) if the Stock is listed on an exchange or exchanges, or admitted for trading
in a market system which provides last sale data under Rule 11Aa3-1 of the
General Rules and Regulations of the Securities and Exchange Commission under
the Securities and Exchange Act of 1934, as amended (a "Market System"), the
last reported sales price per share on the last business day prior to such date
on the principal exchange on which it is traded, or in such a Market System, as
applicable, or if no sale was made on such day on such principal exchange or in
such a Market System, as applicable, the last reported sales price per share on
the most recent day prior to such date on which a sale was reported on such
exchange or such Market System, as applicable; or (ii) if the Common Stock is
not then traded on an exchange or in such a Market System, the average of the
closing bid and asked prices per share for the Common Stock in the over-the-
counter market as quoted on NASDAQ on the day prior to such date; or (iii) if
the Common Stock is not listed on an exchange or quoted on NASDAQ, an amount
determined in good faith by the Administrator.
Following receipt of the notice and payment referred to above, the
Company shall issue and deliver to Employee a stock certificate or stock
certificates evidencing the Purchased Shares; provided, however, that the
Company shall not be obligated to issue a fraction or fractions of a share of
its Common Stock, and may pay to Employee, in cash or by check, the fair market
value of any fraction or fractions of a share exercised by Employee, which fair
market value shall be determined as set forth in the preceding paragraph.
5. Termination of Employment.
(a) If Employee shall cease to be an officer of, or to be in the
employ of, the Company, any Subsidiary or any Parent for any reason other than
death or permanent disability, Employee shall have the right to exercise the
Option at any time within 90 days after the date
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Employee ceased to be an officer of, or to be employed by, the Company, and
prior to the date of termination of the Option under Paragraph 2 of this Option
Agreement with respect to all shares with respect to which the Option was
exercisable at the date Employee's employment terminated as to which the Option
had not previously been exercised; and to the extent unexercised at the end of
this period, the Option shall terminate. The Board, or a committee thereof, in
its sole and absolute discretion, shall determine whether or not authorized
leaves of absence shall constitute termination of employment for purposes of
this Option Agreement.
(b) If Employee shall be terminated "for cause" by the Company, any
Subsidiary or any Parent, Employee shall have the right to exercise the Option
at any time within 30 days after such termination of employment and prior to the
date of termination of the Option under Paragraph 2 of this Option Agreement
with respect to all Shares with respect to which the Option was exercisable on
the date his or her employment terminated as to which the Option had not
previously been exercised.
(c) If Employee shall die or become permanently disabled while in the
employ of the Company, any Subsidiary or any Parent, then Employee, Employee's
executors or administrators or any person or persons acquiring the Option
directly from Employee by bequest or inheritance, shall have the right to
exercise the Option, to the extent the Option was exercisable pursuant to the
provisions of Paragraph 3 of this Option Agreement and had not previously been
exercised, at any time within one year after such death or permanent disability
but not later than the Option Expiration Date; to the extent the Option is
unexercised at the end of that period, the Option will terminate.
(d) For purposes of this Option Agreement, "cause" shall mean
(i) the failure or refusal by Employee to perform his duties to
the Company; or
(ii) Employee's willful disobedience of any orders or directives
of the Board or any officers thereof acting under the authority thereof or
Employee's deliberate interference with the compliance by other employees of the
Company with any such orders or directives; or
(iii) the failure or refusal of Employee to abide by or comply
with the written policies, standard procedures or regulations of the Company; or
(iv) any willful or continued act or course of conduct by
Employee which the Board in good faith determines might reasonably be expected
to have a material detrimental effect on the Company or the business,
operations, affairs or financial position thereof; or
(v) the committing by the Employee of any fraud, theft,
embezzlement or other dishonest act against the Company; or
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(vi) the determination by the Board, in good faith and in the
exercise of reasonable discretion, that Employee is not competent to perform his
duties of employment.
(e) For purposes of this Option Agreement, "permanent disability"
shall mean permanent and total disability as defined by the Administrator.
Employee shall not be considered permanently disabled unless he furnishes proof
of such disability in such form and manner, and at such times, as the
Administrator of the Plan may from time to time require.
6. Restrictions on Purchased Shares.
None of the Purchased Shares shall be transferred (with or
without consideration), sold, offered for sale, assigned, pledged, hypothecated
or otherwise disposed of (each a "Transfer") and the Company shall not be
required to register any such Transfer and the Company may instruct its transfer
agent not to register any such Transfer, unless and until all of the following
events shall have occurred:
(a) the Purchased Shares are Transferred pursuant to and in conformity
with (i) (x) an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"), or (y) an exemption from registration under the Act, and
(ii) the securities laws of any state of the United States; and
(b) Employee has, prior to the Transfer of such Purchased Shares, and
if requested by the Company, provided all relevant information to Company's
counsel so that upon Company's request, Company's counsel is able to, and
actually prepares and delivers to the Company a written opinion that the
proposed Transfer (i) (x) is pursuant to a registration statement which has been
filed with the Commission and is then effective, or (y) is exempt from
registration under the Act as then in effect, and the Rules and Regulations of
the Commission thereunder, and (ii) is either qualified or registered under any
applicable state securities laws, or exempt from such qualification or
registration. The Company shall bear all reasonable costs of preparing such
opinion.
Any attempted Transfer which is not in full compliance with this
Paragraph 6 shall be null and void ab initio, and of no force or effect.
7. Adjustments upon Recapitalization.
Subject to any required action by the shareholders of the Company:
(a) If the outstanding shares of the Common Stock shall be subdivided
into a greater number of shares of the Common Stock, or a dividend in shares of
Common Stock or other securities of the Company convertible into or exchangeable
for shares of the Common Stock (in which latter event the number of shares of
Common Stock issuable upon the conversion or exchange of such securities shall
be deemed to have been distributed) shall be paid in respect of the shares of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
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or at the record date of such dividend shall, simultaneously with the
effectiveness of such subdivision or immediately after the record date of such
dividend, be proportionately reduced, and conversely, if the outstanding shares
of Common Stock shall be combined into a smaller number of shares of Common
Stock, the Exercise Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased.
(b) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount equal
to the number of Shares purchasable on the exercise of the Option immediately
prior to such adjustment by the Exercise Price in effect immediately prior to
such adjustment, and then (ii) dividing that product by the Exercise Price in
effect immediately after such adjustment.
(c) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization described in
Paragraph 7(a) of this Option Agreement), or the consolidation of the Company
with, or a sale of substantially all of the assets of the Company to (which sale
is followed by a liquidation or dissolution of the Company), or merger of the
Company with another person (a "Reorganization Event"), the Administrator shall
be obligated to determine whether the Reorganization Event shall constitute a
"Liquidity Event," and to deliver to Employee at least 15 days prior to such
Reorganization Event a notice which shall (i) indicate whether the
Reorganization Event is a Liquidity Event; (ii) indicate whether the Liquidity
Event shall result in the acceleration of the vesting provisions of this Option;
and (iii) advise Employee of his or her rights pursuant to this Option
Agreement. If the Reorganization Event is determined to be a Liquidity Event,
in its sole and absolute discretion, the surviving corporation may, but shall
not be obligated to, (i) tender to Employee Stock Options with respect to the
surviving corporation which shall contain terms and provisions that
substantially preserve the rights and benefits of this Option, and (ii) in the
event that no Stock Options have been tendered by the surviving corporation
pursuant to the terms of item (i) immediately above, Employee shall have the
right exercisable during a ten-day period ending on the fifth day prior to the
Reorganization Event to exercise his or her Stock Options in whole or in part,
and if so determined by the Administrator, without regard to any installment
provisions under his or her Stock Option Agreement, on the condition, however,
that the Reorganization Event is actually effected; and if the Reorganization
Event is actually effected, such exercise shall be deemed effective (and, if
applicable, the Employee shall be deemed a shareholder with respect to the Stock
Options exercised) immediately preceding the effective time of the
Reorganization Event (or on the date of record for shareholders entitled to
share in the securities or property distributed in the Reorganization Event, if
a record date is set). If the Reorganization Event is not determined to be a
Liquidity Event, Employee shall thereafter be entitled upon exercise of the
Option to purchase the kind and number of shares of stock or other securities or
property of the surviving corporation receivable upon such event by a holder of
the number of shares of the Common Stock which the Option entitles Employee to
purchase from the Company immediately prior to such event, and in any such case,
appropriate adjustment shall be made in the application of the provisions set
forth in this Option Agreement with respect to Employee's rights and interests
thereafter, to the end that the provisions set forth in this Option Agreement
(including the specified
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changes and other adjustments to the Exercise Price) shall thereafter be
applicable in relation to any shares or other property thereafter purchasable
upon exercise of the Option.
(d) In the event of the proposed dissolution or liquidation of the
Company, or in the event of any corporate separation or division, including, but
not limited to, a split-up, split-off or spin-off (each, a "Liquidating Event"),
the holder of any Stock Option then exercisable shall have the right to exercise
such Stock Option (at the price provided in the Stock Option Agreement)
subsequent to the Liquidating Event, and for the balance of its term, solely for
the kind and amount of shares of Stock and other securities, property, cash or
any combination thereof receivable upon such Liquidating Event by a holder of
the number of shares of Stock for or with respect to which such Stock Option
might have been exercised immediately prior to such Liquidating Event; or, in
the alternative, that each Stock Option granted under the Plan shall terminate
as of a date to be fixed by the Board; provided, however, that not less than 30
days written notice of the date so fixed shall be given to each Option Holder
and if such notice is given, each Option Holder shall have the right, during the
period of 30 days preceding such termination, to exercise the Stock Option as to
all or any part of the shares of Stock covered thereby, without regard to
installment or vesting provisions in Section 3 of this Option Agreement, on the
condition, however, that the Liquidating Event actually occurs; and if the
Liquidating Event actually occurs, such exercise shall be deemed effective (and,
if applicable, the Option Holder shall be deemed a shareholder with respect to
the Stock Options exercised) immediately preceding the occurrence of the
Liquidating Event, or the date of record for shareholders entitled to share in
such Liquidating Event, if a record date is set.
(e) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Administrator
of the Plan, and its determination shall be final, binding and conclusive.
(f) The provisions of this Paragraph 7 are intended to be exclusive,
and Employee shall have no other rights upon the occurrence of any of the events
described in this Paragraph 7.
(g) The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations or
changes in its capital or business structure, or to merge, consolidate, dissolve
or liquidate, or to sell or transfer all or any part of its business or assets.
8. Waiver of Rights to Purchase Stock.
By signing this Option Agreement, Employee acknowledges and agrees
that neither the Company nor any other person or entity is under any obligation
to sell or transfer to Employee any option or equity security of the Company,
other than the shares of Common Stock subject to the Option and any other right
or option to purchase Common Stock which was previously granted in writing to
Employee by the Board (or a committee thereof). By signing this Option
Agreement, Employee specifically waives all rights which he or she may have had
prior to the date of this Option Agreement to receive any option or equity
security of the Company.
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9. Investment Intent.
Employee represents and agrees that if he or she exercises the Option
in whole or in part, and if at the time of such exercise the Plan and/or the
Purchased Shares have not been registered under the Act, he or she will acquire
the Shares upon such exercise for the purpose of investment and not with a view
to the distribution of such Shares, and that upon each exercise of the Option he
or she will furnish to the Company a written statement to such effect.
10. Legend on Stock Certificates.
Employee agrees that all certificates representing the Purchased
Shares will be subject to such stock transfer orders and other restrictions (if
any) as the Company may deem advisable under the rules, regulations and other
requirements of the Commission, any stock exchange upon which the Common Stock
is then listed and any applicable federal or state securities laws, and the
Company may cause a legend or legends to be put on such certificates to make
appropriate reference to such restrictions.
11. No Rights as Shareholder.
Except as provided in Section 8.1 of the Plan, Employee shall have no
rights as a shareholder with respect to the Shares until the date of the
issuance to Employee of a stock certificate or stock certificates evidencing
such Shares. Except as may be provided in Paragraph 7 of this Option Agreement,
no adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued.
12. Modification.
Subject to the terms and conditions and within the limitations of the
Plan, the Board (or a committee thereof) may modify, extend or renew the Option
or accept the surrender of, and authorize the grant of a new option in
substitution for, the Option (to the extent not previously exercised). No
modification of the Option shall be made which, without the consent of Employee,
would cause the Option to fail to continue to qualify as an "incentive stock
option" within Section 422 of the Code or would alter or impair any rights of
the Employee under the Option.
13. Disqualifying Disposition; Withholding.
(a) Employee agrees that should he or she make a "disposition" (as
defined in Section 424(c) of the Code) of all or any of the Purchased Shares
within two years from the date of the grant of the Option or within one year
after the issuance of such Purchased Shares, he or she shall immediately advise
the Company in writing as to the occurrence of the sale and the price realized
upon the sale of such Purchased Shares. Employee agrees that he or she shall
maintain all Purchased Shares in his or her name so long as he or she maintains
beneficial ownership of such Shares.
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(b) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the Employee
agree to remit, at the time of such delivery or at such later date as the
Company may determine, an amount sufficient to satisfy all federal, state and
local withholding tax requirements relating thereto, and Employee agrees to take
such other action required by the Company to satisfy such withholding
requirements.
(c) With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator, Employee
may elect to satisfy his or her obligations under Paragraph 13(a) above by (i)
directing the Company to withhold a portion of the Shares otherwise deliverable
(or to tender back to the Company a portion of the Shares issued where the
Employee (a "Section 16(b) Recipient") is required to report the ownership of
the Shares pursuant to Section 16(a) of the Securities Exchange Act of 1934, as
amended, and has not made an election under Section 83(b) of the Code (a
"Withholding Right")); or (ii) tendering other shares of the Common Stock of the
Company which are already owned by Employee which in all cases have a fair
market value (as determined in accordance with the provisions of Paragraph 4(b)
hereof) on the date as of which the amount of tax to be withheld is determined
(the "Tax Date") equal to the amount of taxes to be paid by such method.
(d) To exercise a Withholding Right, the Employee must follow the
election procedures set forth below, together with such additional procedures
and conditions set forth in this Option Agreement or otherwise adopted by the
Administrator:
(i) the Employee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a stated
percentage of the applicable taxes will be paid in accordance with Paragraph
13(b) above and whether the amount so paid shall be made in accordance with the
"flat" withholding rates for supplemental wages or as determined in accordance
with Employee's form W-4 (or comparable state or local form);
(ii) unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable; and
(iii) no Election is valid unless the Administrator has the
right and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the Election, or
to disapprove the Election; and if the Administrator has not consented to the
Election on or prior to the Tax Date, the Election will be deemed approved.
(iv) If the Employee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional provisions
will apply:
(A) the Election cannot be made during the six calendar month
period commencing with the date of grant of the Withholding Right (even if the
Option to which such Withholding Right relates has been granted prior to such
date); and
(B) the Election must be made any day six calendar months or
more prior to the Tax Date.
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(e) To exercise a Withholding Right, the Rights holder must follow the
election procedures set forth below, together with such additional procedures
and conditions as may be set forth in the related Rights agreement or otherwise
adopted by the Administrator:
(i) The Rights holder must deliver to the Company his or her
written notice of election (the "Election") to have the Withholding Right
apply to all (or a designated portion) of his or her Right.
(ii) Unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable.
(f) Any election under Paragraph 13(b) above must:
(i) be made in writing on or prior to the Tax Date and specify
whether all or a stated percentage of the applicable taxes will be paid in
accordance with Paragraph 13(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental wages or
as determined in accordance with Employee's form W-4 (or comparable state or
local form);
(ii) be irrevocable, once made;
(iii) conform to all rules and procedures from time to time
adopted by the Administrator and be made subject to rejection by the
Administrator for any reason; and
(iv) in the case of a Section 16(b) Recipient:
(A) not be made within six months of the grant of the
Option; and
(B) be made not later than (x) six months less one day
prior to the Tax Date, or (y) in the ten day "window period" beginning on the
third day following the release of the Company's quarterly or annual summary
financial data as described in Rule 16b-3(e) of the Rules and Regulations of the
Securities and Exchange Commission promulgated under the Exchange Act.
14. Character of Option.
The Option is intended to qualify as an "incentive stock option" as
that term is defined in Section 422 of the Code.
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15. General Provisions.
(a) Further Assurances. Employee shall promptly take all actions
and execute all documents requested by the Company which the Company deems to be
reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) Notices. All notices, requests, demands and other
communications under this Option Agreement shall be in writing and shall be
given to the parties hereto as follows:
(i) If to the Company, to:
Affiliated Research Centers, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(ii) If to Employee, to the address set
forth in the records of the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid; or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) Transfer of Rights under this Option Agreement. The Company may
at any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) Option Non-Transferable. Employee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent and
distribution, and Stock Options may be exercised during the lifetime of the
Option Holder by the Option Holder or by his or her guardian or legal
representative.
(e) Successors and Assigns. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and personal representatives.
(f) Governing Law. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE IN, AND TO BE PERFORMED WITHIN, THAT STATE.
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(g) The Plan. This Option Agreement is made pursuant to the Plan, and
it is intended, and shall be interpreted in a manner, to comply therewith. Any
provision of this Option Agreement inconsistent with the Plan shall be
superseded and governed by the Plan.
(h) Miscellaneous. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not constitute a
part of this Option Agreement for any other purpose. Except as specifically
provided herein, neither this Option Agreement nor any right pursuant hereto or
interest herein shall be assignable by any of the parties hereto without the
prior written consent of the other party hereto.
The Signature Page to this Option Agreement consists of the last
page of the Certificate.
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Exhibit "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: Affiliated Research Centers, Inc.
The undersigned, the holder of the enclosed Stock Option Agreement
(Incentive Stock Option), hereby irrevocably elects to exercise the purchase
rights represented by the Option and to purchase thereunder _________ * shares
of Common Stock of Affiliated Research Centers, Inc. (the "Company"), and
herewith encloses payment of $_______ and/or _________ shares of the Company's
Common Stock in full payment of the purchase price of such shares being
purchased.
Dated: _______________
______________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Option)
______________________________
(Please Print Name)
______________________________
(Address)
* Insert here the number of shares called for on the face of the Option
(or, in the case of a partial exercise, the number of shares being exercised),
in either case without making any adjustment for additional Common Stock of the
Company, other securities or property which, pursuant to the adjustment
provisions of the Option, may be deliverable upon exercise.
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