EXHIBIT 99.11
Form of Automatic Stock Option Agreement
FILENET CORPORATION
AUTOMATIC STOCK OPTION AGREEMENT
RECITALS
A. The Corporation has implemented an automatic option grant program under
the Plan pursuant to which eligible non-employee members of the Board will
automatically receive special option grants at periodic intervals over their
period of Board service in order to provide such individuals with a meaningful
incentive to continue to serve as members of the Board.
B. Optionee is an eligible non-employee Board member, and this Agreement is
executed pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the automatic option grant to purchase shares of Common Stock
under the Plan.
C. All capitalized terms in this Agreement shall have the meaning assigned
to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. The Corporation hereby grants to Optionee, as of the
Grant Date, a Non-Qualified Option to purchase up to the number of Option Shares
specified in the Grant Notice. The Option Shares shall be purchasable from time
to time during the option term specified in Paragraph 2 at the Exercise Price.
2. Option Term. This option shall have a term of ten (10) years measured
from the Grant Date and shall accordingly expire at the close of business on the
Expiration Date, unless sooner terminated in accordance with Paragraph 5 or 6.
3. Limited Transferability. This option may, in connection with the
Optionee's estate plan, be assigned in whole or in part during Optionee's
lifetime to one or more members of the Optionee's immediate family or to a trust
established exclusively for one or more such family members. The assigned
portion shall be exercisable only by the person or persons who acquire a
proprietary interest in this option pursuant to such assignment. The terms
applicable to the assigned portion shall be the same as those in effect for the
option immediately prior to such assignment. Should Optionee die while holding
this option, then the option shall be transferred in accordance with Optionee's
will or the laws of inheritance.
4. Exercisability/Vesting.
(a) This option shall be immediately exercisable for any or all of the
Option Shares, whether or not the Option Shares are vested in accordance
with the Vesting Schedule, and shall remain so exercisable until the
Expiration Date or sooner termination of the option term under Paragraph 5
or 6.
(b) Optionee shall, in accordance with the Vesting Schedule, vest in
the Option Shares in a series of successive annual installments over his or
her period of Board service. Vesting in the Option Shares may be
accelerated pursuant to the provisions of Paragraph 5, 6 or 7. In no event,
however, shall any additional Option Shares vest following Optionee's
cessation of service as a Board member.
5. Cessation of Board Service. Should Optionee's service as a Board member
cease while this option remains outstanding, then the option term specified in
Paragraph 2 shall terminate (and this option shall cease to be outstanding)
prior to the Expiration Date in accordance with the following provisions:
(i) Should Optionee cease to serve as a Board member for any reason
(other than death or Permanent Disability) while holding this option, then
the period for exercising this option shall be reduced to a twelve
(12)-month period (commencing with the date of such cessation of Board
service), but in no event shall this option be exercisable at any time
after the Expiration Date. During such limited period of exercisability,
this option may not be exercised in the aggregate for more than the number
of Option Shares (if any) in which the Optionee is vested on the date
Optionee ceases service as a Board member. Upon the earlier of (A) the
expiration of such twelve (12)-month period or (B) the specified Expiration
Date, the option shall terminate and cease to be exercisable with respect
to any vested Option Shares for which the option has not been exercised.
(ii) Should Optionee cease service as a Board member by reason of
death or Permanent Disability, then all Option Shares at the time subject
to this option but not otherwise vested shall immediately vest in full so
that Optionee (or the personal representative of Optionee's estate or the
person or persons to whom the option is transferred upon Optionee's death)
shall have the right to exercise this option for any or all of the Option
Shares as fully-vested shares of Common Stock at any time prior to the
earlier of (A) the expiration of the twelve (12)-month period measured from
the date of Optionee's death or Permanent Disability or (B) the specified
Expiration Date.
(iii) Upon Optionee's cessation of Board service for any reason other
than death or Permanent Disability, this option shall immediately terminate
and cease to be outstanding with respect to any and all Option Shares in
which Optionee is not otherwise at that time vested in accordance with the
normal Vesting Schedule or the special vesting acceleration provisions of
Paragraph 6 or 7 below.
2.
6. Corporate Transaction.
(a) In the event of a Corporate Transaction, all Option Shares at the
time subject to this option but not otherwise vested shall automatically
vest so that this option shall, immediately prior to the effective date of
such Corporate Transaction, become exercisable for any or all of those
Option Shares as fully-vested shares of Common Stock. Immediately following
the Corporate Transaction, this option shall terminate and cease to be
exercisable except to the extent assumed by the successor corporation (or
parent thereof) in connection with such Corporate Transaction.
(b) If this option is assumed in connection with a Corporate
Transaction, then 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 Exercise Price, provided the aggregate Exercise Price shall
remain the same.
(c) This Agreement shall not in any way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
7. Change in Control. All Option Shares subject to this option at the time
of a Change in Control but not otherwise vested shall automatically vest so that
this option shall, immediately prior to the effective date of such Change in
Control, become exercisable for any or all of those Option Shares as
fully-vested shares of Common Stock. This option shall remain exercisable for
such fully-vested Option Shares until the earlier of (i) the Expiration Date or
(ii) the sooner termination of this option in accordance with Paragraph 5 or 6.
8. Adjustment in Option Shares. Should any change be made to the Common
Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the number and/or
class of securities subject to this option and (ii) the Exercise Price in order
to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
9. Stockholder Rights. The holder of this option shall not have any
stockholder rights with respect to the Option Shares until such person shall
have exercised the option, paid the Exercise Price and become a holder of record
of the purchased shares.
3.
10. Manner of Exercising Option.
(a) In order to exercise this option with respect to all or any part of the
Option Shares for which this option is at the time exercisable, Optionee (or any
other person or persons exercising the option) must take the following actions:
(i) To the extent the option is exercised for vested Option Shares,
execute and deliver to the Corporation a Notice of Exercise for the vested
Option Shares for which the option is exercised. To the extent this option
is exercised for unvested Option Shares, execute and deliver to the
Corporation a Purchase Agreement for the unvested Option Shares for which
the option is exercised.
(ii) Pay the aggregate Exercise Price for the purchased shares in one
or more of the following forms:
(A) cash or check made payable to the Corporation,
(B) shares of Common Stock held by Optionee (or any other person
or persons exercising the option) 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
(C) to the extent the option is exercised for vested Option
Shares, through a special sale and remittance procedure pursuant to
which Optionee (or any other person or persons exercising the option)
shall concurrently provide irrevocable instructions (I) to a
Corporation-designated brokerage firm to effect the immediate sale of
the purchased shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds to cover
the aggregate Exercise Price payable for the purchased shares plus all
applicable Federal, state and local income taxes required to be
withheld by the Corporation by reason of such exercise and (II) to the
Corporation to deliver the certificates for the purchased shares
directly to such brokerage firm in order to complete the sale.
Except to the extent the sale and remittance procedure is
utilized in connection with the option exercise, payment of the
Exercise Price must accompany the Notice of Exercise (or the Purchase
Agreement) delivered to the Corporation in connection with the option
exercise.
(iii) Furnish to the Corporation appropriate documentation
that the person or persons exercising the option (if other than
Optionee) have the right to exercise this option.
(iv) Make appropriate arrangements with the Corporation for
the satisfaction of all Federal, state and local income tax
withholding requirements applicable to the option exercise.
(b) As soon after the Exercise Date as practical, the Corporation
shall issue to or on behalf of Optionee (or any other person or
persons exercising this option) a certificate for the purchased Option
Shares, with the appropriate legends affixed thereto. To the extent
any such Option Shares are unvested, the certificates for those Option
Shares shall be endorsed with an appropriate legend evidencing the
Corporation's repurchase rights and may be held by the Corporation in
escrow until such shares vest.
(c) In no event may this option be exercised for any fractional
shares.
11. Compliance with Laws and Regulations.
(a) The exercise of this option and the issuance of the Option Shares upon
such exercise shall be subject to compliance by the Corporation and Optionee
with all applicable requirements of law relating thereto and with all applicable
regulations of any stock exchange (or the Nasdaq National Market, if applicable)
on which the Common Stock may be listed for trading at the time of such exercise
and issuance.
(b) The inability of the Corporation to obtain approval from any regulatory
body having authority deemed by the Corporation to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option shall relieve the
Corporation of any liability with respect to the non-issuance or sale of the
Common Stock as to which such approval shall not have been obtained. The
Corporation, however, shall use its best efforts to obtain all such approvals.
12. Successors and Assigns. Except to the extent otherwise provided in
Paragraph 3 or 6, the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns and the legal representatives, heirs and legatees
of Optionee's estate.
13. Notices. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee at
the address indicated below Optionee's signature line on the Grant Notice. All
notices shall be deemed effective upon personal delivery or upon deposit in the
5.
U.S. mail, postage prepaid and properly addressed to the party to be notified.
14. Construction. This Agreement and the option evidenced hereby are made
and granted pursuant to the automatic option grant program in effect under the
Plan and are in all respects limited by and subject to the terms of such
program.
15. Governing Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of California without
resort to that State's conflict-of-laws rules.
6.
APPENDIX
The following definitions shall be in effect under the Agreement:
A. Agreement shall mean this Automatic Stock Option Agreement.
B. Board shall mean the Corporation's Board of Directors.
C. Change in Control shall mean a change in ownership or control of the
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or related
group of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the Corporation's
stockholders, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (a) have been
Board members continuously since the beginning of such period or (b) have
been elected or nominated for election as Board members during such period
by at least a majority of the Board members described in clause (a) who
were still in office at the time the Board approved such election or
nomination.
D. Code shall mean the Internal Revenue Code of 1986, as amended.
E. Common Stock shall mean the Corporation's common stock.
F. 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
A-1.
(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.
G. Corporation shall mean FileNet Corporation, a Delaware corporation.
H. Exercise Date shall mean the date on which the option shall have been
exercised in accordance with Paragraph 10 of the Agreement.
I. Exercise Price shall mean the exercise price per share as specified in
the Grant Notice.
J. Expiration Date shall mean the date on which the option expires as
specified in the Grant Notice.
K. Fair Market Value per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq National
Market, then the Fair Market Value shall be the average of the high and low
selling prices per share of Common Stock on the date in question, as such
prices are reported by the National Association of Securities Dealers on
the Nasdaq National Market or any successor system. If there are no selling
prices quoted for the Common Stock on the date in question, then the Fair
Market Value shall be the average of the high and low selling prices on the
last preceding date for which such quotations exist.
(ii) If the Common Stock is at the time listed on any Stock Exchange,
then the Fair Market Value shall be the average of the high and low selling
prices per share of Common Stock on the date in question on the Stock
Exchange serving as the primary market for the Common Stock, as such prices
are officially quoted in the composite tape of transactions on such
exchange. If there are no selling prices quoted for the Common Stock on the
date in question, then the Fair Market Value shall be the average of the
high and low selling prices on the last preceding date for which such
quotations exist.
L. Grant Date shall mean the date of grant of the option as specified in
the Grant Notice.
M. Grant Notice shall mean the Notice of Grant of Non-Employee Director
Automatic Stock Option accompanying the Agreement, pursuant to which Optionee
has been informed of the basic terms of the option evidenced hereby.
A-2.
N. 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
O. Non-Qualified Option shall mean an option not intended to satisfy the
requirements of Code Section 422.
P. Notice of Exercise shall mean the written notice of the option exercise
on the form provided by the Corporation for such purpose.
Q. Option Shares shall mean the number of shares of Common Stock subject to
the option as specified in the Grant Notice.
R. Optionee shall mean the person to whom the option is granted as
specified in the Grant Notice.
S. Permanent Disability shall mean the inability of Optionee to perform his
or her usual duties as a Board member by reason of any medically determinable
physical or mental impairment expected to result in death or to be of continuous
duration of twelve (12) months or more.
T. Plan shall mean the Corporation's 1995 Stock Option Plan.
U. Purchase Agreement shall mean the stock purchase agreement (in form and
substance satisfactory to the Corporation) which must be executed at the time
the option is exercised for any unvested Option Shares and which will
accordingly (i) grant the Corporation the right to repurchase, at the Exercise
Price, any and all of those Option Shares in which the Optionee is not otherwise
vested at the time of his or her cessation of service as a Board member and (ii)
preclude the sale, transfer or other disposition of any of the Option Shares
purchased under such agreement while those Option Shares remain subject to the
repurchase right.
V. Stock Exchange shall mean the American Stock Exchange or the New York
Stock Exchange.
W. Vesting Schedule shall mean the vesting schedule specified in the Grant
Notice, pursuant to which Optionee will vest in the Option Shares in a series of
annual installments over his or her period of Board service, subject to
acceleration in accordance with the provisions of the Agreement.
A-3.