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EXHIBIT 4.3
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
NON-EMPLOYEE STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement"), effective as of the 1st day of April,
1999, is entered into by and between Diamond Technology Partners Incorporated, a
Delaware corporation (the "Company") and ________________________ (the
"Optionee").
WHEREAS, Optionee is a nonemployee consultant or service provider to
the Company; and
WHEREAS, the Company desires to grant Optionee non-qualified options to
purchase shares of $0.001 par value common stock of Company on the terms and
conditions contained in this Agreement; and
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 other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
All capitalized terms used herein shall have the meanings set forth in
this section, unless expressly provided otherwise herein.
(a) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(b) "Committee" means the Company's Management Committee, as
constituted from time to time, or any other committee appointed by the
Board of Directors of the Company.
(c) "Date of Grant" shall mean the date of this Option
Agreement as set forth above.
(d) "Disability" shall mean any medically determinable
physical or mental impairment which prevents the Optionee from engaging
in any substantial gainful activity and which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months. Disability shall be
determined by the Committee based upon medical reports and other
evidence satisfactory to the Committee.
(e) "Option" shall mean the right to purchase Stock which has
been granted pursuant to this Agreement.
(f) "Option Shares" shall mean the shares of Stock subject to
the Option.
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(g) "Stock" shall mean the $0.001 par value Common Stock of
the Company or, in the event that the Company becomes a wholly-owned
subsidiary of another corporation, the common stock of that entity.
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2. GRANT OF OPTION; EXERCISE PRICE.
The Company hereby grants to the Optionee this Option to purchase all
or any part of Twelve Thousand (12,000) shares of Stock at the Exercise Price of
Twenty Dollars and Thirty Cents ($20.30) per share, on the terms and conditions
set forth herein.
3. RESTRICTIONS ON TRANSFER.
(a) 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 this Agreement.
(b) 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. VESTING OF OPTION.
This Option is exercisable only upon and after vesting. Except as
provided in this Section 4, this Option shall ▇▇▇▇▇ ▇▇▇▇ in annual increments
over a four (4) year period beginning on the Date of Grant according to the
following schedule:
(a) as to the first fifteen percent (15%) of the Option Shares, two
(2) years after the Date of Grant;
(b) as to the next thirty percent (30%) of the Option Shares, on the
third anniversary of the Date of Grant; and
(c) as to the final fifty-five percent (55%) of the Option Shares, on
the fourth anniversary of the Date of Grant.
The foregoing vesting schedule assumes the Optionee's continuous
performance of services for the Company through the vesting period. Except as
provided below, no portion of this Option shall vest after the date the Optionee
ceases to perform services for the Company 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.
5. WHEN OPTION MAY BE EXERCISED.
(a) Except as provided in subsections (b) and (c) of this
Section 5, the vested portion of this Option shall be exercised, if at
all, by the Optionee at any time before the fifth anniversary of the
Date of Grant.
(b) If the Optionee ceases to perform services for the Company
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
perform such services. Any unvested portion of this Option terminates
immediately upon the cessation of Optionee's services for the Company.
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(c) The Committee shall have the discretion, exercisable at
any time before a sale, merger, consolidation, reorganization,
liquidation or change of control of the Company, as defined by the
Committee, to provide for the acceleration of vesting and for
settlement, including cash payment, of the Option upon or immediately
before the effectiveness of such event.
6. EXERCISE OF OPTION.
(a) During the Optionee's lifetime, this Option shall be
exercisable only by the Optionee or his or her legal representative or
guardian. 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.
(b) This Option may be exercised by submitting to the Company
(1) a Notice of Exercise in the form attached hereto as Exhibit A; (2)
any written representations, covenants, and other undertakings that the
Company may prescribe to satisfy securities laws and regulations or
other requirements; and (3) a certified or bank cashier's check payable
to the order of the Company in an amount equal to the full purchase
price of the Option Shares to be purchased.
7. WITHHOLDING OF TAXES.
The Company, by itself or through a subsidiary, as applicable, shall
make such provisions and take such steps as either may deem necessary or
appropriate for the withholding of any taxes which any of them is required by
any law or regulation by any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with this Option,
including, but not limited to, the withholding of the issuance of all or any
portion of the Option Shares subject to this Option until the holder of this
Option reimburses the Company or its subsidiary, as the case may be, for the
amount required to be withheld with respect to such taxes, canceling any portion
of the issuance of the Option Shares subject to this Option in an amount
sufficient to reimburse the Company or its subsidiary, as the case may be, for
such amount, deducting from the Optionee's compensation an amount sufficient to
reimburse the Company or its subsidiary, as the case may be, for such amount, or
taking any other action reasonably required to satisfy any withholding
obligations.
8. STOCKHOLDER RIGHTS.
The Optionee shall have none of the rights of a shareholder with
respect to the Option Shares 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.
9. DILUTION.
In the event of any stock dividend, stock split, combination or
exchange of shares, merger, consolidation, spinoff, recapitalization or other
distribution (other than normal cash dividends) of Company assets to
stockholders, or any other change affecting shares of Stock or share price, such
proportionate adjustments, if any, as the Committee in its discretion may deem
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appropriate to reflect such change shall be made with respect to this Option and
the Exercise Price.
10. CONTINUED SERVICES NOT PRESUMED.
Nothing in this Agreement shall give the Optionee the right to continue
in his or her capacity as a consultant or service provider to the Company or
affect the right of the Company to terminate the services of the Optionee for
any reason or no reason at all at any time.
11. NON-QUALIFIED STOCK OPTION.
This Option DOES NOT qualify as an "incentive stock option" under the
Code.
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12. NOTICES.
All notices by one party to the other under this Agreement shall be in
writing. Any notice under this Agreement to the Company shall be addressed to
the Company at Suite 3000, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
any notice to the Option shall be addressed to the Optionee at the address
listed beneath 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 carrier. 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.
13. 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.
14. HEADINGS.
The headings and captions utilized in this Agreement shall not be
construed to limit or modify the terms or meaning of this Agreement.
15. AGREED FORUM.
All acts required to be performed by the Optionee hereunder shall be
deemed to be performed in Chicago, ▇▇▇▇ 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.
16. ARBITRATION.
In the event of a dispute relating to this Stock Option Agreement, the
parties agree to attempt in good faith to resolve the dispute among themselves.
If this is unsuccessful, the parties shall attempt to mutually agree on an
alternative dispute resolution mechanism. If the parties cannot so agree on an
alternative dispute resolution mechanism, then the parties shall submit this
dispute to binding arbitration under the Commercial Rules of the American
Arbitration Association. The parties shall each bear one-half of the costs of
the alternative dispute resolution mechanism.
Each party shall select an arbitrator of its choice within 20 days of
the giving or receipt of notice of arbitration. The two, in turn, shall choose a
third presiding arbitrator. If the two shall be unable to agree upon the
presiding arbitrators or if any party fails or refuses to appoint an arbitrator,
the appointing authority shall have the power to make an appointment.
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The award of the arbitrators, which shall be in writing and furnished
within 30 days of the last day of the hearing, shall be final and binding upon
the parties and neither party shall appeal the award to any court. Judgment for
enforcement of the award of the arbitrators may be entertained by a court having
jurisdiction thereof. The parties acknowledge that this provision and any award
rendered pursuant to it shall be governed by the federal Uniform Arbitration
Act.
17. 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.
18. APPLICABLE STATE LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Illinois.
19. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Non-Employee
Stock Option Agreement as of the day and year first above written.
OPTIONEE: THE COMPANY:
Diamond Technology Partners
Incorporated
By:
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Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------- Title: Chief Executive Officer
ADDRESS:
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EXHIBIT A
TO
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
NON-EMPLOYEE STOCK OPTION AGREEMENT
NOTICE OF EXERCISE
(To be executed only upon exercise of the Option)
Reference is made to the Diamond Technology Partners Incorporated
Non-Employee Stock Option Agreement, dated as of April 1, 1999 (the "Option
Agreement"), between Diamond Technology Partners Incorporated, a Delaware
corporation (the "Company") and ________________________________ (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 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:
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Dated as of
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(Signature)
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(Printed Name)
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