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EXHIBIT 4.8
FORM OF NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT made and entered into this ______ day of _____________,
2000, by and between Circle International Group, Inc., a Delaware corporation
(the "Company"), and _______________________________, an employee of the Company
(the "Employee"),
WITNESSETH:
WHEREAS, the Company has adopted the 2000 Stock Option Plan (the
"Plan"), providing for the granting to its employees of stock options relating
to shares of its common stock (the "Common Stock"),
WHEREAS, the Plan provides for the grant of options which are not
intended to be incentive stock options within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended, ("non-qualified stock option"); and
WHEREAS, the Employee is in a position to make an important
contribution to the long-term performance of the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Grant Of Option. The Company hereby grants to the Employee a
non-qualified stock option to purchase __________ shares of the Common Stock at
the price set forth in Paragraph 2 hereof, on the terms and conditions
hereinafter stated. The parties agree that this option will not be treated as an
"incentive stock option".
2. Exercise Price. The purchase price per share is ____________________
Point _________ Dollars ($_______.___) (which is the fair market value of such
Common Stock at date of grant), which shall be paid in the legal tender of the
United States.
3. Number Of Shares. The number of shares of Common Stock covered
hereby and the price per share thereof shall be proportionately adjusted for any
increase or decrease in the number of issued and outstanding shares of Common
Stock resulting from a subdivision or consolidation of shares or the payment of
a stock dividend in excess of 2% or any other increase or decrease in the number
of issued and outstanding shares of Common Stock effected without receipt of
consideration by the Company.
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Subject to any required approval of the Stockholders of the Company, if
the Company shall be the surviving corporation in any merger or consolidation,
this option (to the extent that it is still outstanding) shall pertain to and
apply to the securities of which a holder of the same number of shares of Common
Stock that are subject to the option would have been entitled. To the extent
that the foregoing adjustments relate to stock or securities of the Company, any
such adjustments shall be made by the Human Resources and Compensation Committee
(the "Committee"), whose determination in that respect shall be final, binding
and conclusive.
In the event of a change in control (as defined below) any and all
outstanding options shall automatically vest in full and shall be immediately
exercisable without regards to any limitations on the date of the occurrence of
the change in control. A change in control shall be deemed to have occurred if:
(a) as a result of or in connection with any tender
offer, exchange offer, merger, or acquisition other
business combination, sale of assets or contested
election or combination of the foregoing, the persons
who were Directors of the company just prior to such
event cease to constitute a majority of the Board of
the Company or its successor;
(b) the stockholders of the company approve a merger or
consolidation of the Company with another Company and
as a result of such merger or consolidation less than
70% of the outstanding voting securities of the
surviving or resulting Company shall then be owned in
the aggregate by the former stockholders of the
Company, other than (A) any party to such merger or
consolidations, or (B) any affiliates to any such
party;
(c) a tender offer or exchange offer is made and
consummated for the ownership of securities of the
Company representing 50% or more of the combined
voting power of the Company's then outstanding voting
securities;
(d) any person is or becomes the beneficial owner,
directly or indirectly, of at least 20% of the
combined voting power of the Company's outstanding
securities, except by reason of a repurchase by the
Company of its securities; or
(e) a plan of liquidation or an agreement for the sale or
transfer of substantially all of the Company's assets
to another Company that is not a wholly owned Company
of the Company.
The grant of this option shall not affect in any way the right or power
of the Company to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its business or
assets.
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4. Commencement Of Exercisability. This option may not be exercised in
whole or in part until one year has elapsed from the date of this Agreement.
Subject to the conditions stated herein, the right to exercise this option shall
accrue in installments as follows:
(i) During the period of 12 months beginning one year after
the date of this Agreement, this option may be exercised to the extent of 25% of
the shares subject to option;
(ii) During the period of 12 months beginning
________________, 2002, this option may be exercised to the extent of 25% of the
shares subject to option plus the shares as to which the right to exercise this
option has previously accrued but has not been exercised.
(iii) During the period of 12 months beginning
________________, 2003, this option may be exercised to the extent of 25% of the
shares subject to option plus the shares as to which the right to exercise this
option has previously accrued but has not been exercised.
(iv) During the period of 12 months beginning
________________, 2004, this option may be fully exercised to the extent that it
has not previously been exercised.
No partial exercise of this option will be permitted for less than ten
shares.
5. Termination Of Option. In the event of termination of the Employee's
employment for any reason other than death, this option shall immediately
terminate; provided, however, that if such cessation of employment is with the
consent of the Board of Directors, expressed in the form of a resolution, or is
pursuant to the Employee's retirement under the provisions of any pension,
profit sharing or other retirement plan of the Company then in effect, or is on
account of permanent illness or disability, this option may be exercised
(subject to the provisions of Paragraph 12 hereof) within three months after the
date the Employee ceases to be an employee of the Company, but only to the
extent that it was exercisable on the date of such cessation of employment.
6. Persons Eligible To Exercise. This option shall be exercisable
during the Employee's lifetime only by the Employee and shall be nontransferable
by the Employee otherwise than by will or the laws of descent and distribution,
or by a beneficiary designation made in a form and manner acceptable to the
Committee.
7. After The Death Of Employee. In the event of the Employee's death
while in the employ of the Company, or during a three-month period following
termination of employment during which the Employee is permitted to exercise
this option pursuant to Paragraph 5 hereof, this option may be exercised
(subject to the provisions of Paragraph 12 hereof) at any time within one year
after the Employee's death by the Employee's transferee to the same extent as
the Employee could have exercised the option immediately prior to the employee's
death. The Employee's
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transferee shall be the person or persons, designated by the Employee on a
Beneficiary Designation Form furnished by the Committee, provided, however, that
if at the time of the Employee's death, there is no effective Beneficiary
Designation Form on file with the Committee, the Employee's transferee shall be
deemed to be the executor or administrator of the employee's estate or any
person who shall have acquired the option from the Employee by the employee's
will or the applicable law of descent and distribution. Any such transferee
exercising this option must furnish the Company upon request of the Committee
(a) written notice of the Employee's status as transferee, (b) evidence
satisfactory to the Company to establish the validity of the transfer of the
option in compliance with any laws or regulations pertaining to said transfer,
and (c) written acceptance of the terms and conditions of the option as
prescribed in this Agreement.
8. Exercise Of Option. This option may be exercised by the person then
entitled to do so as to any share which may then be purchased by giving written
notice of exercise to the Company, specifying the number of full shares to be
purchased and accompanied by full payment of the purchase price thereof and the
amount of any income tax the Company is required by law to withhold by reason of
such exercise.
9. No Rights Of Stockholder. Neither the Employee nor any person
claiming under or through the Employee shall be or have any of the rights or
privileges of a stockholder of the Company in respect of any of the shares
issuable upon the exercise of the option, until the date of the receipt of
payment by the Company and the issuance of a stock certificate to the Employee
for such shares in accordance with the terms hereof.
10. Addresses For Notices. Any notice to be given to the Company under
the terms of this Agreement shall be addressed to Circle International Group,
Inc., in care of its Corporate Secretary, at 260 Townsend Street, San Francisco,
California 94107, or at such other address as the Company may hereinafter
designate in writing. Any notice to be given to the Employee shall be addressed
to the address set forth beneath the Employee's signature hereto, or at any such
other address as the Employee may hereafter designate in writing.
Any such notice shall be deemed to have been duly given if and when
enclosed in a properly sealed envelope, addressed as aforesaid, registered and
deposited, postage and registry fee prepaid, in a post office or branch post
office regularly maintained by the United States Government.
11. Non-Transferability Of Option. Except as otherwise stated herein,
the option herein granted and the rights and privileges conferred hereby shall
not be transferred, assigned, pledged or hypothecated in any way (whether by
operation or law or otherwise) and shall not be subject to sale under execution,
attachment or similar process upon the rights and privileges conferred hereby.
Upon any attempt to transfer, assign, pledge or otherwise dispose of said
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option, or of any right or privilege conferred hereby, contrary to the
provisions hereof, or upon any attempted sale under any execution, attachment or
similar process upon the rights and privileges conferred hereby shall
immediately become null and void.
12. Maximum Term Of Option. Notwithstanding any other provision of this
Agreement, this option is not exercisable after the expiration of ten years from
the date hereof.
13. Binding Agreement. Subject to the limitations on transferability
contained herein, this Agreement shall be binding upon and inure to the benefit
of the heirs, legal representatives, successors and assigns of the parties
hereto.
14. Suspension Of Exercisability. The rights awarded hereby are subject
to the requirement that, if at any time the Committee shall determine, in its
sole discretion, that the listing, registration or qualification of the shares
of Common Stock subject to such rights upon any securities exchange or under any
state or federal law, or the consent or approval of any government regulatory
body, is necessary or desirable as a condition, or in connection with, the
granting of such rights or the issue of shares in connection therewith, such
rights may not be exercised or paid in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
15. Arbitration. The parties hereto agree that any action relating to
this stock option agreement shall be instituted and processed in the courts in
San Francisco County, California, and each party waives the right to change of
venue. Further, the parties agree that any action relating to their agreement
shall be submitted to final and binding arbitration pursuant to the provisions
of the California Civil Code.
16. Option Has No Effect On Employment. Nothing in this Agreement shall
be construed as giving the Employee the right to be retained as an Employee, as
impairing the rights of the Company to terminate the employee's service, or as
altering the at-will employment status of employee, as the case may be. The
Company shall have the right, which is expressly reserved, to terminate or
change the terms of the employment of the Employee at any time for any reason
whatsoever, with or without good cause.
17. Payment Of Tax. Whenever shares of Common Stock are to be issued in
satisfaction of the rights conferred hereby, the Company shall have the right to
require the optionee to remit to the Company an amount sufficient to satisfy
federal, state and local withholding tax requirements prior to the delivery of
any certificate or certificates for such shares. Whenever payments are to be
made in cash, such payments shall be net of an amount sufficient to satisfy
federal, state and local withholding tax requirements.
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18. Plan Governs. This Agreement is subject to all terms and provisions
of the Plan. In the event of a conflict between one or more provisions of this
Agreement and one or more provisions of the Plan, the provisions of the Plan
shall govern. Terms used in this Agreement that are not defined in this
Agreement shall have the meaning set forth in the Plan.
19. Committee Authority. The Committee shall have the power to
interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon Employee, the Company and all other interested persons.
No member of the Committee shall be personally liable for any action,
determinations or interpretations made in good faith with respect to the Plan or
this Agreement.
IN WITNESS HEREOF, the parties hereto have executed this Agreement, in
duplicate, the day and year first above written.
CIRCLE INTERNATIONAL GROUP, INC.
By
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ACCEPTED:
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Employee
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Address
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