EXHIBIT 10.4
STOCK OPTION AGREEMENT
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THIS STOCK OPTION AGREEMENT (the "Agreement"), dated as of ________,
199_ (the "Grant Date"), is entered into between PLATINUM technology,
inc., a ________ corporation (the "Company"), and _______________ (the
"Participant").
WHEREAS, the Company desires to afford the Participant an opportunity to
purchase shares of the Company's stock ("Shares") as provided in this Agreement,
effective as of the Grant Date; and
WHEREAS, the Company has adopted The PLATINUM technology, inc. Broad-Based
Stock Option Plan (the "Plan") and desires that the options granted to the
Participant be governed by the terms and conditions of the Plan; and
WHEREAS, the Committee has duly made all determinations necessary or
appropriate to the grants hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto have agreed, and do
hereby agree, as follows:
1. Definitions.
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For purposes of this Agreement, the definitions of terms contained in the
Plan are hereby incorporated by reference, except to the extent that any term is
specifically defined in this Agreement.
2. Grant of Option, Option Price and Term.
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(a) Grant. Subject to the terms and conditions of the Plan and this
Agreement, the Company hereby grants to the Participant, as a matter of separate
agreement and not in lieu of salary or any other compensation for services, the
right and option ("Option") to purchase ___________ Shares of the Company
("Option Shares").
(b) Option Price. For each of the Option Shares purchased, the Participant
shall pay to the Company _________ Dollars ($_____) (the "Option Price").
Accordingly, the aggregate Option Price to purchase all of the Option Shares
granted hereunder is ______________________ Dollars ($_________) (the "Aggregate
Option Price").
(c) No Fractional Shares. The Company shall not be required to issue any
fractional Shares hereunder.
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(d) Option Term. The term of the Options granted hereunder shall be a
period of ________ (__) years from the Grant Date (the "Option Period"). The
termination of the Option Period shall result in the termination and
cancellation of such Options. In no event shall an Option be exercisable at any
time after the expiration of the Option Period.
3. Vesting.
Option Shares shall vest hereunder in accordance with the following
schedule:
[Specify vesting schedule]
4. Termination of Employment.
[Specify the consequences of employment termination if different from Plan]
5. Repurchase of Options and Shares.
[Specify puts and calls]
6. Manner of Exercise.
(a) Exercisability. Options shall be exercisable upon their vesting in
accordance with Section 3 above. Except as otherwise provided in this Agreement
or in the Plan, the Options granted hereunder shall be exercisable during the
Participant's lifetime only by the Participant (or his or her Representative),
and after the Participant's death only by a Representative.
(b) Method of Exercise. The Option may only be exercised by the delivery
to the Company of a properly completed written notice, in form satisfactory to
the Committee, which notice shall specify the number of Option Shares to be
purchased and the Aggregate Option Price for such Option Shares, together with
payment in full of such Aggregate Option Price. No Shares will be issued until
full payment therefor has been made. Payment shall only be made:
[Specify payment methods if different from Plan]
The Options granted hereunder shall not be validly exercised unless there has
been compliance with all the preceding provisions of this Section 6, and, for
all purposes of this Agreement, the date of the exercise of an Option shall be
the date upon which there is compliance with all such requirements.
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7. Payment of Withholding Taxes.
If as a result of this Agreement or otherwise, the Company is obligated to
withhold an amount on account of any tax imposed in connection with the exercise
of an Option, the Participant shall be required to pay such amount to the
Company, as provided in the Plan.
8. Requirements of Law.
The Company shall not be required to sell or issue any Option Shares under
an Option if such issuance shall constitute a violation of any provision of any
law or regulation of any governmental authority.
9. Plan.
The Participant hereby acknowledges receipt of a copy of the Plan. Except
to the extent in contravention of the terms of this Agreement, the Options
granted hereunder are granted pursuant to the Plan, as in effect on the date
hereof, and are subject to all the terms and conditions of the Plan, as the same
may be amended from time to time. The interpretation and construction by the
Committee of the Plan, this Agreement, the Options granted hereunder, and such
rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan, shall be final and binding upon the Participant to the
extent not inconsistent with the terms of this Agreement and the Plan. Until the
Options granted hereunder shall have expired, terminated or been exercised in
full, the Company shall, upon written request therefor, send a copy of the Plan,
in its then current form, to the Participant or any other person or entity then
entitled to exercise such Options.
10. No Shareholder Rights.
Until the Options granted hereunder have been duly exercised to purchase
the Option Shares and such Option Shares have been officially recorded as issued
on the Company's official records, no person will be entitled to vote or receive
distributions or will be deemed for any purpose a shareholder, and adjustments
for distributions or otherwise will be made only if the record date therefor is
subsequent to the date such Option Shares are recorded and after the date of
exercise and without duplication of any adjustment.
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11. No Employment Rights.
No provision of this Agreement or of the Options granted hereunder shall
give the Participant any right to continue in the employ of the Company or any
of its Affiliates, create any inference as to the length or term of employment
of the Participant, affect the right of the Company or its Affiliates to
terminate the employment of the Participant, with or without Cause, or give the
Participant any right to participate in any employee welfare or benefit plan or
other program (other than the Plan) of the Company or any of its Affiliates.
12. No Disclosure Rights.
The Company shall have no duty or obligation to affirmatively disclose to
the Participant or a Representative, and the Participant or a Representative
shall have no right to be advised of, any material information regarding the
Company or an Affiliate at any time prior to, upon or in connection with the
exercise of an Option or the Company's purchase of Option Shares in accordance
with the terms of this Agreement.
13. Investment Representation and Agreement.
(a) Restrictions on Transfers. Except as otherwise provided in the Plan,
the Participant represents and warrants that the grant of Options hereunder has
been, and any Shares to be issued in satisfaction of such grant will be,
acquired by the Participant solely for the Participant's own account for
investment and not with a view to or for sale in connection with any
distribution thereof. Except for such transfers as permitted under the Plan, the
Participant agrees that the Participant will not, directly or indirectly, offer,
transfer, sell, pledge, convey, gift, assign, encumber, alienate, hypothecate or
otherwise dispose of all or any Shares (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of all or any of the Shares), except in
compliance with the Securities Act and the rules and regulations of the
Commission thereunder, and in compliance with applicable state securities or
"blue sky" laws[, and where such laws authorize a sale or transfer of
Participant's Shares, the Participant shall, except for such transfers as
permitted under the Plan, prior to initiating any sale or transfer to any third
party, make such offer to the Company, which shall have ten (10) business days
to purchase the Participant's Shares at the price offered Participant in an
arm's length transaction offered by a third party, and only if the Company has
not so acquired the Shares may the Participant effect a transfer or sale of such
Shares to a third party - Applicable?].
(b) Other Representations. If prior to the issuance of any Option Shares
upon the exercise of an Option, in the opinion of counsel for the Company, a
particular representation by the Participant is required under the Securities
Act or any other applicable federal or state law, or any regulation or rule of
any governmental agency, the Company may require the Participant to make such
investment representations and such other representations as the Company
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reasonably may determine to be necessary which representations shall be
evidenced in an agreement in such form as the Company may specify.
14. Nontransferability.
Except for certain transfers specifically authorized under the terms of the
Plan, the Options granted hereunder or any interest in such Options may not be
sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred
in any manner other than by will or the laws of descent and distribution.
Notwithstanding any other Section of this Agreement, any such attempted sale,
assignment, conveyance, gift, pledge, hypothecation or transfer shall be null
and void and shall nullify such Option immediately.
15. Changes in Company's Capital or Organizational Structure.
The existence of the Option shall not affect in any way the right or
authority of the Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any class of interests in the Company or affecting the Option
Shares or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other act or proceeding, whether of a similar character or otherwise; provided,
however, following any such change, the price and number of Options shall
equitably be adjusted to reflect the value of such Options prior to such
changes.
16. Governing Law.
This Agreement and the Options hereunder will be governed by, and construed
and enforced in accordance with, the laws of the State of _________ (other than
its laws respecting choice of law) except to the extent Federal law would be
applicable.
17. Entire Agreement.
This Agreement, together with the Plan, constitute the entire obligation of
the parties hereto with respect to the subject matter of this Agreement and
shall supersede any prior expressions of intent or understanding with respect to
such subject matter.
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18. Amendment.
Any amendment to this Agreement shall be in writing and signed on behalf of
the Company, and if required hereunder, by the Participant.
19. Waiver; Cumulative Rights.
The failure or delay of either party hereto to require performance by the
other party of any provision hereof shall not affect its right to require
performance of such provision unless and until such performance has been waived
in writing. Each and every right hereunder is cumulative and may be exercised in
part or in whole from time to time.
20. Counterparts.
This Agreement may be signed in two (2) counterparts, each of which shall
be an original, but both of which shall constitute but one and the same
instrument.
21. Notices.
Any notice which either party hereto may be required or permitted to give
the other shall be in writing and may be given to the Company in any manner
provided in its charter, and to the Participant at his last known address as
shown on the Company's payroll records, or to such other address as the
Participant, by notice to the Company, may designate in writing from time to
time.
22. Headings, Gender and Number.
The headings contained in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this Agreement. Common
nouns and pronouns shall be deemed to refer to the masculine, feminine, neuter,
singular and plural, as the context so requires.
23. Severability.
If any provision of this Agreement shall for any reason be held to be
invalid or unenforceable, such invalidity or unenforceability shall not effect
any other provision hereof, and this Agreement shall be construed as if such
invalid or unenforceable provision were omitted.
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24. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon each
successor and assign of the Company. All obligations imposed upon the
Participant or a Representative, and all rights granted to the Company
hereunder, shall be binding upon the Participant's or the Representative's
heirs, legal representatives and successors.
25. Tax Consequences.
The Participant agrees to undertake to determine and be responsible for any
and all tax consequences to himself with respect to the Option granted hereunder
and the Option Shares relating thereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by an officer thereunto duly authorized, and the Participant has
hereunto set his hand, all as of the day and year first above written.
PLATINUM technology, inc., a ________ corporation
By: _______________________________________
PARTICIPANT:
By: _______________________________________
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