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EXHIBIT 4.5
S-O ACQUISITION CORP.
DIRECTOR STOCK OPTION AGREEMENT
This Agreement is made and entered into as of January 8, 1997
by and between S-O Acquisition Corp., a Delaware corporation (the
"Corporation") and ___________ ("Optionee").
R E C I T A L S
The Corporation's Board of Directors (the "Board") has
approved the execution of this Stock Option Agreement containing the grant of
the option herein set forth to Optionee to purchase shares of the Corporation's
common stock (the "Stock") upon the terms and conditions hereinafter set forth.
NOW THEREFORE, it is agreed as follows:
1. Grant of Option. The Corporation hereby grants to
Optionee as of the date hereof the right and option to purchase, on the terms
and conditions hereinafter set forth, all or any part of an aggregate of 714
shares of Stock (the "Option"), subject to adjustment in accordance with
Section 10 hereof.
2. Option Price. The price to be paid for Stock upon
exercise of the Option or any part thereof shall be Fifty Dollars ($50) per
share (the "Purchase Price").
3. Vesting. The Option shall be fully vested and
immediately exercisable and shall remain exercisable during the term of the
option, as provided in Section 5 below.
4. Securities Law Requirements. No part of the Option
shall be exercised if counsel to the Corporation determines that any applicable
registration requirement (or exemption therefrom) under the Securities Act of
1933, as amended (the "1933 Act"), or any other applicable requirement of
Federal or state law has not been met. Optionee represents and agrees that if
Optionee exercises this Option in whole or in part at a time when there is not
in effect under the 1933 Act a registration statement relating to the shares of
Stock issuable upon exercise hereof, and there is not available for delivery a
prospectus meeting the requirements of Section 10(a)(3) of said Act, (i)
Optionee will acquire the shares of Stock upon such exercise for the purpose of
investment and not with a view to the distribution thereof, (ii) that upon each
such exercise of this Option, Optionee will furnish to the Corporation an
investment letter in form and substance satisfactory to the Corporation, and
(iii) prior to selling or offering for sale any such shares, Optionee will
furnish the Corporation, at its request, an opinion of counsel satisfactory to
it to the effect that the transaction is exempt from registration under
applicable securities laws. Any other person or persons entitled to exercise
this Option under the provision hereof shall furnish to the Corporation
letters, opinions and certificates to the same effect as would otherwise be
required of Optionee.
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5. Term of Option. Except as otherwise provided in the
Plan, the Option shall terminate on the earlier of (i) the 10th anniversary of
the date of this Agreement first set forth above or (ii) one (1) year following
the date that Optionee ceases to be an employee, officer, director or
consultant to the Corporation.
6. Nontransferability. Unless the Corporation otherwise
consents in writing, the option and all rights and privileges granted hereunder
shall be non-assignable and non-transferable by Optionee, either voluntarily or
by operation of law, shall not be pledged or hypothecated in any way, and shall
be exercisable during lifetime only by Optionee; provided however, this option
shall be transferable (i) by will or by the laws of descent and distribution
without prior notice to the Corporation and (ii) by Optionee to Optionee's
spouse, immediate family members or issue, including adopted children, or to a
trust for the benefit of Optionee or Optionee's spouse, immediate family
members or issue, including adopted children, so long as the Corporation is
provided with prior notice of such transfer and such transferee agrees, to the
extent requested by the Corporation, to be bound by Optionee's obligations
hereunder. Except as otherwise provided herein, any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of the Option
or any right thereunder, shall be null and void and, at the Corporation's
option, shall cause all of Optionee's rights under this Agreement to terminate.
7. Effect of Exercise. Upon exercise of all or any part
of the Option, the number of shares of Stock subject to option under this
Agreement shall be reduced by the number of shares with respect to which such
exercise is made.
8. Method of Exercise. Each exercise of the Option
shall be by means of a written notice of exercise in substantially the form
prescribed from time to time by the Board delivered to the Secretary of the
Corporation at its principal office and accompanied by payment in full of the
Purchase Price for each share of Stock purchased under the Option. Such notice
shall specify the number of shares of Stock with respect to which the Option is
exercised and shall be signed by the person exercising the Option. If the
Option is exercised by a person other than Optionee, such notice shall be
accompanied by proof, reasonably satisfactory to the Corporation, of such
person's right to exercise the Option.
The Purchase Price specified in Section 3 above shall be paid
in full upon the exercise of the Option in one or more of the following forms:
(i) cash or made payable to the Corporation; or (ii) cancellation of
indebtedness owed by the Corporation to the Optionee. In addition, should the
Stock be registered under Section 12(g) of the Securities Exchange Act of 1934,
as amended, at the time the option is exercised, then the Purchase Price may
also be paid as follows: (i) in shares of Stock held by Optionee for the
requisite period necessary to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market Value on the exercise
date; or (ii) through a special sale and remittance procedure pursuant to which
optionee shall concurrently provide irrevocable instructions (A) to a
Corporation-designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the
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Corporation, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate Purchase Price payable for the
purchased shares plus any applicable Federal, state and local income taxes
required to be withheld by the Corporation by reason of such exercise and (B)
to the Corporation to deliver the certificates for the purchased shares
directly to such brokerage firm in order to complete the sale.
9. Issuance of Shares. Subject to the foregoing
conditions, the Corporation, as soon as reasonably practicable after receipt of
a proper notice of exercise and without transfer or issue tax or other
incidental expense to the person exercising the Option, shall deliver to such
person at the principal office of the Corporation, or such other location as
may be acceptable to the Corporation and such person, one or more certificates
for the shares of Stock with respect to which the Option has been exercised.
Such shares shall be fully paid and nonassessable and shall be issued in the
name of such person. However, at the request of Optionee, such shares may be
issued in the names of Optionee and his or her spouse (a) as joint tenants with
right of survivorship, (b) as community property, (c) as tenants in common
without right of survivorship, or (d) as trustees of a trust for the benefit of
members of their immediate family.
10. Adjustment in Option Shares. Should any change be
made to the Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the total number
and/or class of securities subject to this option and (ii) the Purchase Price
in order to reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder.
11. Assumption of Option. Except as may be otherwise
provided in the agreement reflecting a Corporate Transaction (as hereinafter
defined), this Option shall be assumed by the successor corporation (or parent
thereof) in connection with a Corporate Transaction, and this Option shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
to the number and class of securities which would have been issuable to
Optionee in consummation of such Corporate Transaction had the option been
exercised immediately prior to such Corporate Transaction, and appropriate
adjustments shall also be made to the Purchase Price, provided the aggregate
Purchase Price shall remain the same. For purposes of this Section, "Corporate
Transaction" shall mean either of the following stockholder-approved
transactions to which the Corporation is a party: (i) a merger or consolidation
in which securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such transaction, or (ii) the sale, transfer or
other disposition of all or substantially all of the Corporation's assets in
complete liquidation or dissolution of the Corporation.
12. Limitation of Optionee's Rights. Neither Optionee
nor any person entitled to exercise the Option shall be or have any of the
rights of a shareholder of the Corporation in respect of any share issuable
upon the exercise of the Option unless and until a certificate or
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certificates representing shares of Stock shall have been issued and delivered
upon exercise of the Option in full or in part. No adjustment shall be made
for dividends or other rights for which the record date is prior to the date
such stock certificates are issued.
13. Market Stand-Off.
1. In connection with any underwritten public
offering in whole or in part by the Corporation of its equity securities
pursuant to an effective registration statement filed under the 1933 Act,
including the Corporation's initial public offering, Optionee shall not sell,
make any short sale of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or otherwise agree to
engage in any of the foregoing transactions with respect to, any securities of
the Corporation without the prior written consent of the Corporation or its
underwriters. Such restriction (the "Market Stand-Off") shall be in effect for
such period of time from and after the effective date of the final prospectus
for the offering as may be requested by the Corporation or such underwriters.
In no event, however, shall such period exceed one hundred eighty (180) days.
2. Optionee agrees to execute any documentation
acknowledging the Market Stand-Off as may be required by the Company and its
underwriters.
3. In order to enforce the Market Stand-Off, the
Corporation may impose stop-transfer instructions with respect to the
securities of the Corporation held by Optionee until the end of the applicable
stand-off period.
14. Notices. Any notice to the Corporation contemplated
by this Agreement shall be addressed to it in care of the Board; any notice to
Optionee shall be addressed to him or her at the address on file with the
Corporation on the date hereof or at such other address as Optionee may
hereafter designate in a writing delivered to the Corporation as provided
herein.
15. Interpretation. The interpretation, construction,
performance and enforcement of this Agreement shall lie within the sole
discretion of the Board, and the Board's determinations shall be conclusive and
binding on all interested persons.
16. Attorney's Fees. In the event of any dispute
concerning the subject matter hereof, the prevailing party shall be entitled to
recover its costs and reasonable attorney's fees in litigating or otherwise
resolving the dispute.
17. Venue. Any action arising out of any dispute
concerning the subject matter hereof shall be brought and maintained in a court
of competent jurisdiction in the county in which the Corporation's principal
place of business is located at the time of commencement of the action.
18. Governing Law. This Agreement has been made,
executed and delivered in, and the interpretation, performance and enforcement
hereof shall be governed by and construed
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under the laws of the State of California, without regard to such state's
choice of laws or conflict of laws rules.
19. Entire Agreement. This Agreement represents the
entire agreement between the parties with respect to the subject matter hereof,
and supersedes all prior agreements, representations and understandings.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as the date first above written.
"Corporation"
S-O Acquisition Corp.
By:_______________________________
Name: ____________________________
Title:____________________________
"Optionee"
__________________________________
Name: ____________________________
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