EXHIBIT 10.2
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INCENTIVE STOCK OPTION AGREEMENT
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1. GRANT OF OPTION. Banyan Systems Incorporated, a Massachusetts
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corporation (the "Company"), hereby grants to *NAME* (the "Optionee"), an
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option, pursuant to the Company's 1992 Stock Incentive Plan (the "Plan"), to
purchase an aggregate of *NO* shares of Common Stock ("Common Stock") of the
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Company at a price of $*DOLLAR* per share, purchasable as set forth in and
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subject to the terms and conditions of this option and the Plan. The date of
grant of this option is *DATE*. Except where the context otherwise requires,
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the term "Company" shall include the parent and all present and future
subsidiaries of the Company as defined in Sections 424 (e) and 424 (f) of the
Internal Revenue Code of 1986, as amended or replaced from time to time (the
"Code").
2. INCENTIVE STOCK OPTION. This option is intended to qualify as an
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incentive stock option ("Incentive Stock Option") within the meaning of Section
422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
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(a) Vesting Schedule. Except as otherwise provided in this Agreement,
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this option may be exercised prior to the tenth anniversary of the date of grant
(hereinafter the "Expiration Date") in installments as to not more than the
number of shares set forth in the table below during the respective installment
periods set forth in the table below.
PERCENTAGE OF SHARES AS TO
EXERCISE PERIOD WHICH OPTION IS EXERCISABLE
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Prior to 12 months after -0-
the date of grant.
From and after 12 months -34%-
after the date of grant but
prior to 24 months after
the date of grant.
From and after 24 months -67%-
after the date of grant but
prior to 36 months after the
date of grant.
From and after 36 months -100%-
after the date of grant
but prior to 48 months
after the date of grant.
The right of exercise shall be cumulative so that if the option is not exercised
to the maximum extent permissible during any exercisable period, it shall be
exercisable, in whole or in part, with respect to all shares not so purchased at
any time prior to the Expiration Date or the earlier termination of this option.
This option may not be exercised at any time on or after the Expiration Date.
(b) Exercise Procedure. Subject to the conditions set forth in this
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Agreement, this option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 4. Such exercise
shall be effective upon receipt by the Treasurer of the Company of such written
notice together with the required payment. The Optionee 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.
(c) Continuous Employment Required. Except as otherwise provided in
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this Section 3, this option may not be exercised unless Optionee, at the time he
or she exercises this option, is, and has been at all times since the date of
grant of this option, an employee of the Company. For all purposes of this
option, (i) "employment" shall be defined in accordance with the provisions of
Section 1.421-7 (h) of the Income Tax Regulations or any successor regulations,
and (ii) if this option shall be assumed or a new option substituted therefor in
a transaction to which Section 424 (a) of the Code applies, employment by such
assuming or substituting corporation (hereinafter called the "Successor
Corporation") shall be considered for all purposes of this option to be
employment by the Company.
(d) Exercise Period Upon Termination of Employment. If the Optionee
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ceases to be employed by the Company for any reason, then, except as provided in
paragraphs (e) and (f) below, the right to exercise this option shall terminate
three months after such cessation (but in no event after the Expiration Date),
provided that this option shall be exercisable only to the extent that the
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Optionee was entitled to exercise this option on the date of such cessation.
The Company's obligation to deliver shares upon the exercise of this option
shall be subject to the satisfaction of all applicable federal, state and local
income and employment tax withholding requirements, arising by reason of this
option being treated as a non-statutory option or otherwise. Notwithstanding
the foregoing, if the Optionee, prior to the Expiration Date, materially
violates the non-competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure agreement or other agreement between
the Optionee and the Company, the right to exercise this option shall terminate
immediately upon written notice to the Optionee from the Company describing such
violation.
(e) Exercise Period Upon Death or Disability. If the Optionee dies or
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becomes disabled (within the meaning of Section 22 (e) (3) of the Code) prior to
the Expiration Date while he or she is an employee of the Company, or if the
Optionee dies within three months after the Optionee ceases to be an employee of
the Company (other than as a result of a discharge for "cause" as specified in
paragraph (f) below), this option shall be exercisable, within the period of one
year following the date of death or disability of the Optionee (but in no event
after the Expiration Date), by the Optionee or by the person to whom this option
is transferred by will or the laws of descent and distribution, provided that
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this option shall be exercisable only to the extent that this option was
exercisable by the Optionee on the date of his or her death or disability.
Except as otherwise indicated by the context, the term "Optionee", as used in
this option, shall be deemed to include the estate of the Optionee or any person
who acquires the right to exercise this option by bequest or inheritance or
otherwise by reason of the death of the Optionee.
(f) Discharge for Cause. If the Optionee, prior to the Expiration
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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 such cessation of
employment. "Cause" shall mean willful misconduct in connection with the
Optionee's employment or willful failure to perform his or her employment
responsibilities in the best interests of the Company (including, without
limitation, breach by the Optionee of any provision of any employment,
nondisclosure, non-competition or other similar agreement between the Optionee
and the Company), as determined by the Company, which determination shall be
conclusive. The Optionee shall be considered to have been discharged "for
cause" if the Company determines, within 30 days after the Optionee's
resignation, that discharge for cause was warranted.
4. PAYMENT OF PURCHASE PRICE.
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(a) Method of Payment. Payment of the purchase price for shares
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purchased upon exercise of this option shall be made by delivery of cash or
check in an amount equal to the exercise price of such options or, with the
prior consent of the Company (which may be withheld in its sole discretion), by
(A) delivery of shares of Common Stock owned by the Optionee for at least six
months, valued at their fair market value, as determined in (b) below, (B)
delivery of a promissory note of the Optionee to the Company on terms determined
by the Board, (C) delivery of an irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise price or delivery
of irrevocable instructions to a broker to deliver promptly to the Company cash
or a check sufficient to pay the exercise price, (D) payment of such other
lawful consideration as the Board may determine, or (E) any combination of the
foregoing.
(b) Valuation of Shares or Other Non-Cash Consideration Tendered in
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Payment of Purchase Price. For the purposes hereof, the fair market value of
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any share of the Company's Common Stock or other non-cash consideration which
may be delivered to the Company in exercise of this option shall be determined
in good faith by the Board of Directors of the Company.
(c) Delivery of Shares Tendered in Payment of Purchase Price. If the
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Optionee exercises options by delivery of shares of Common Stock of the Company,
the certificate or certificates representing the shares of Common Stock of the
Company to be delivered shall be duly executed in blank by the Optionee or shall
be accompanied by a stock power duly executed in blank suitable for purposes of
transferring such shares to the Company. Fractional shares of Common Stock of
the Company will not be accepted in payment of the purchase price of shares
acquired upon exercise of this option.
(d) Restrictions on Use of Option Stock. Notwithstanding the
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foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within six (6) months before the date of
such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
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(a) General. The Company shall, upon payment of the option price for
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the number of shares purchased and paid for, make prompt delivery of such shares
to the Optionee, provided that if any law or regulation requires the Company to
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take any action with respect to such shares before the issuance thereof, then
the date of delivery of such shares shall be extended for the period necessary
to complete such action.
(b) Compliance With Securities Laws, Etc. The Company will not be
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obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restriction from shares previously delivered under the Plan (i) until all
conditions of the option have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable federal and state laws and
regulation have been complied with, (iii) if the outstanding Stock is at the
time listed on any stock exchange, until the shares to be delivered have been
listed or authorized to be listed on such exchange upon official notice of
notice of issuance, and (iv) until all other legal matters in connection with
the issuance and delivery of such shares have been approved by the Company's
counsel.
6. NONTRANSFERABILITY OF OPTION. Except as provided in paragraph (e) of
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Section 3, this Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary to
the provisions hereof, or upon the levy of any attachment or similar process
upon this option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
7. NO SPECIAL EMPLOYMENT RIGHTS. Nothing contained in the Plan or this
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option shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Optionee for the period
within which this option may be exercised.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
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shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS.
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(a) General. In the event of a consolidation, merger or other
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reorganization in which all of the outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity (an "Acquisition") or in the event of a liquidation of the
Company, the Board of Directors of the Company or the Board of Directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions as to this option: (I) provide
that this option shall be assumed, or a substantially equivalent option shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof) on such terms as the Board determines to be appropriate, (ii) upon
written notice to the Optionee, provide that if unexercised, this option will
terminate immediately prior to the consummation of such transaction unless
exercised by the Optionee within a specified period following the date of such
notice, (iii) in the event of an Acquisition under the terms of which holders of
the Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the Acquisition (the "Acquisition Price"),
make or provide for a cash payment to the Optionee equal to the difference
between (A) the Acquisition Price times the number of shares of Common Stock
subject to outstanding options (to the extent then exercisable at prices not in
excess of the Acquisition Price) and (B) the aggregate exercise price of all
such outstanding options in exchange for the termination of such options, and
(iv) provide that all or any outstanding options shall become exercisable or
realizable in full prior to the effective date of such Acquisition.
(b) Board Authority to Make Adjustments. Any adjustments under this
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Section 9 will be made by the Board of Directors, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive. No fractional shares will be issued pursuant to this option on
account of any such adjustments.
10. WITHHOLDING TAXES. The Company's obligation to deliver shares upon
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the exercise of this option shall be subject to the Optionee's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements. The Optionee shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be
withheld in respect of options under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, and subject to the
conditions as the Board may establish, such tax obligations may be paid in whole
or in part in shares of Common Stock, including shares retained from the option
creating the tax obligation, valued at their fair market value. The Company
may, to the extent permitted by law, deduct any such tax obligations from any
payment of any kind otherwise due to the Optionees.
11. LIMITATIONS ON DISPOSITION OF INCENTIVE STOCK OPTION SHARES. It is
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understood and intended that this option shall qualify as an "incentive stock
option" as defined in Section 422 of the Code. Accordingly, the Optionee
understands that in order to obtain the benefits of an incentive stock option
under Section 421 of the Code, no sale or other disposition may be made of any
shares acquired upon exercise of the option within one year after the day of the
transfer of such shares to him, nor within two years after the grant of the
option. If the Optionee intends to dispose, or does dispose (whether by sale,
exchange, gift, transfer or otherwise), of any such shares within said periods,
he or she will notify the Company in writing within ten days after such
disposition.
12. MISCELLANEOUS.
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(a) The Board may amend, modify or terminate any outstanding option,
including substituting therefor another option of the same or a different type,
changing the date of exercise or realization, provided that the Optionee's
consent to such action shall be required unless the Board determines that the
action, taking into account any related action, would not materially and
adversely affect the Optionee. The Board may at any time accelerate the time at
which all or any part of an Option may be exercised.
(b) All notices under this option shall be mailed or delivered by hand
to the parties at their respective addresses set forth beneath their names below
or at such other address as may be designated in writing by either of the
parties to one another.
(c) This option shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
BANYAN SYSTEMS INCORPORATED
BY:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
OPTIONEE'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 1992 Stock Incentive Plan and the Prospectus for such plan.
OPTIONEE
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Address: __________________________
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