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EXHIBIT
4.5
THE THEORY CENTER,
INC.
Amended and
Restated
1999 Stock Option/Stock
Issuance Plan
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The Theory Center,
Inc.
AMENDED AND
RESTATED
1999 STOCK OPTION/STOCK
ISSUANCE PLAN
WHEREAS , The Theory
Center, Inc. (the “TTC”) has merged (the
“Merger”) with and into BEA Acquisition Corp., with TTC
remaining as the surviving corporation, pursuant to the Agreement
and Plan of Merger (the “Merger Agreement”), dated
November 10, 1999, among BEA Systems, Inc. (“BEA”
or the “Company”), BEA Acquisition Corp. and TTC;
and
WHEREAS , pursuant to
the terms of the Merger Agreement, upon the effective time of the
merger, any and all outstanding and unexercised TTC options
(“TTC Options”) issued pursuant to this 1999 Stock
Option/Stock Issuance Plan (the “Plan”) ceased to
represent the right to receive shares of TTC Common Stock and
automatically converted into an option to purchase a number of
shares of BEA common stock equal to the product of (x) the
number of shares of TTC Common Stock underlying such option and
(y) 0.197957; and
WHEREAS , pursuant to
the terms of the Merger Agreement, the duration and other terms of
each TTC Option shall remain the same; provided however, that the
exercise price for the shares of BEA common stock underlying any
TTC Option shall be adjusted such that the new exercise price per
share shall be equal to a fraction the numerator of which shall be
the original exercise price underlying such option immediately
prior to the effective time of the Merger and the denominator shall
be 0.197957. Further, all references in the Plan to the Company
shall be deemed to be references to BEA; and
WHEREAS , TTC desires
to amend and restate the Plan to take into account the effect of
the Merger.
NOW , THEREFORE
,
Purpose . This Plan is
intended to promote the interests of TTC and the Company by giving
incentives to the eligible officers and other employees and
directors of and consultants and advisors to TTC and the Company,
and any present or future subsidiaries of the Company
(collectively, “Related Corporations”) through
providing opportunities to acquire stock in the Company. As used
herein, all references to the Company shall be deemed to be
references to BEA and the terms “parent” and
“subsidiary” mean “parent corporation” and
“subsidiary corporation”, respectively, as those terms
are defined in Sections 424(e) and 424(f) or successor provisions
of the Internal Revenue Code of 1986 as amended from time to time
(the “Code”).
Structure of the Plan
. The Plan permits the following separate types of
grant:
Options may be granted
hereunder to purchase shares of common stock of the Company. These
options may meet the requirements of Section 422 of the Code
(“Incentive Stock Options” or “ISOs”); or,
they may not qualify as ISOs (“Non-Qualified Options”).
Both ISOs and Non-Qualified Options are sometimes referred to
hereinafter as “Options”.
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Awards of stock in the
Company (“Awards”) may be granted.
Opportunities to make direct
purchases of stock in the Company (“Purchases”) may be
authorized.
Options, Awards and authorizations to
make Purchases are sometimes referred to hereinafter as
“Stock Rights”.
Administration of the
Plan .
The Plan shall be
administered by the Board of Directors of the Company (the
“Board”). The Board may in its sole discretion grant
Options, authorize Purchases and grant Awards, as provided in the
Plan. The Board shall have full power and authority, subject to the
express provisions of the Plan, to construe and interpret the Plan,
and all Option agreements, Purchase authorizations and Award grants
thereunder, to establish, amend and rescind such rules and
regulations as it may deem appropriate for the proper
administration of the Plan, to determine in each case the terms and
provisions which shall apply to a particular Option agreement,
Purchase authorization, or Award grant, and to make all other
determinations which are, in the Board’s judgment, necessary
or desirable for the proper administration of the Plan. The Board
may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or in any Option agreement, Purchase
authorization or Award grant in the manner and to the extent it
shall, in its sole discretion, consider expedient. Decisions of the
Board shall be final and binding on all parties who have an
interest in the Plan or any Option, Purchase, Award, or stock
issuance thereunder. No director or person acting pursuant to
authority delegated by the Board shall be liable for any action or
determination under the Plan made in good faith.
The Board may, to the full
extent permitted by and consistent with applicable law and the
Company’s By-laws, and subject to Subparagraph D herein
below, delegate any or all of its powers with respect to the
administration of the Plan to a committee (the
“Committee”) appointed by the Board. If a Committee has
been appointed, all references in this Plan to the Board shall mean
and relate to that Committee.
Those provisions of this Plan
which make express reference to Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or any successor rule (“Rule 16b-3”),
or which are required in order for certain option transactions to
qualify for exemption under Rule 16b-3, shall apply only to
those persons required to file reports under Section 16(a) of
the Exchange Act (a “Reporting Person”).
If the Company registers any
class of equity security under Section 12 of the Exchange Act,
the selection of a director or an officer (as the terms
“director” and “officer” are defined for
purposes of Rule 16b-3) as a recipient of an option, the
timing of the option grant, the exercise price of the option and
the number of
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shares subject to the option
shall be determined either (i) by the Board, if all of the
Board members are disinterested persons within the meaning of
Rule 16(b)(3), or (ii) by two or more directors having
full authority to act in the matter, each of whom shall be such a
disinterested person.
Eligible Employees and
Others . ISOs may be granted to any employee of the Company or
of any Related Corporation. No person who is not such an employee
may be granted an ISO. Non-Qualified Options, Awards, and
authorizations to make Purchases may be granted to any employee,
officer or director of, or consultant or advisor to the Company or
any Related Corporation. The granting of any Stock Right to any
individual or entity shall neither entitle that individual or
entity to, nor disqualify him from, participation in any other
grant of Stock Rights.
Stock . The stock
subject to Options, Awards and Purchases shall be authorized but
unissued shares of common stock of the Company (“Common
Stock”), or shares of Common Stock reacquired by the Company
in any manner. The aggregate number of shares which may be issued
under the Plan is Six Million (6,000,000), subject to adjustment as
provided in Paragraph 14. If any Option granted under the Plan
shall expire or terminate for any reason without having been
exercised in full or shall cease for any reason to be exercisable
in whole or in part, or if the Company shall reacquire any
nonvested shares issued pursuant to Awards or Purchases, the
unpurchased shares subject to such Option, or such nonvested shares
so reacquired shall again be available for grants of Stock Rights
under the Plan.
Option Agreements . As
a condition to the grant of an Option, each recipient of an Option
shall execute an option agreement in such form not inconsistent
with the Plan as the Board shall approve. These option agreements
may differ among recipients. Each option agreement with respect to
an ISO shall be subject to the provisions of the Plan applicable to
ISOs. The Board may, in its sole discretion, include additional
provisions in option agreements, including without limitation
restrictions on transfer, repurchase rights, commitments to pay
cash bonuses, to make, arrange for or guarantee loans or to
transfer other property to optionees upon exercise of options, or
such other provisions as shall be determined by the Board;
provided, however, that such additional provisions shall not be
inconsistent with any provision of the Plan and such additional
provisions shall not cause any ISO granted under the Plan to fail
to qualify as an incentive stock option within the meaning of
Section 422 of the Code.
Option Exercise Price
.
Subject to
Subparagraph 3D of this Plan Subparagraphs B and C of this
Paragraph 7, the purchase price per share of Common Stock
deliverable upon the exercise of an Option (“exercise
price”) shall be determined by the Board.
In the case of an ISO, the
exercise price shall not be less than 100% of the fair market value
of Common Stock, as determined by the Board, at the time of grant
of such option, or less than 110% of such fair market value in the
case of an ISO granted to the owner of stock possessing more than
10% of the total combined voting power of all classes of stock of
the Company or any Related Corporation (after taking into account
the attribution of stock ownership rules of Section 424(d) of
the Code) (a “10% Shareholder”).
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The exercise price of each
Non-Qualified Option granted under the Plan shall in no event be
less than the lesser of (i) the book value per share of Common
Stock as of the end of the fiscal year of the Company immediately
preceding the date of grant, or (ii) thirty percent
(30%) of the fair market value per share of Common Stock on
the date of grant.
Cancellation and New Grant
of Options, Etc. The Board shall be the authority to effect, at
any time and from time to time, with the consent of the affected
optionees, (i) the cancellation of any or all outstanding
Options and the grant in substitution therefor of new Options
covering the same or different shares of Common Stock and having an
exercise price per share which may be lower or higher than the
exercise price per share of the canceled Options, or
(ii) unless doing so would have the effect of causing an ISO
to be treated as a Non-Qualified Option, the amendment of the terms
of any and all outstanding Options to provide an exercise price per
share which is higher or lower than the then-current exercise price
per share of such outstanding Options.
Exercise of Options
.
Each Option granted under the
Plan shall be exercisable either in full or in installments at such
time or times and during such period as shall be set forth in the
agreement evidencing the Option, subject to the provisions of the
Plan. Unless doing so would have the effect of causing an ISO to be
treated as a Non-Qualified Option, the Board may, in its sole
discretion, (i) accelerate the date or dates on which all or
any particular Option or Options granted under the Plan may be
exercised or (ii) extend the dates during which all, or any
particular, Option or Options granted under the Plan may be
exercised.
Options granted under the
Plan may provide for payment of the exercise price by delivery of
cash or a check payable to the order of the Company, or, to the
extent (if at all) provided in the option agreement :
(i) by delivery to the Company of shares of Common Stock of
the Company already owned by the optionee having a fair market
value determined by the Board to be equal in amount to the exercise
price of the Options being exercised, or (ii) by delivery of a
recourse promissory note of the optionee bearing interest payable
not less than annually at the applicable Federal rate as defined in
Section 1274(d) of the Code and otherwise payable on such
terms as are specified by the Board, or (iii) by requesting
that the Company withhold shares of Common Stock of the Company
issuable upon exercise of the Options having a fair market value
determined by the Board to be equal in amount to the exercise price
of the Options being exercised, (iv) by offset of monetary
obligations owed to the Optionee by the Company or (v) by any
combination of the above methods of payment.
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Option Period .
Subject to earlier termination under other provisions of this Plan,
each Option and all rights thereunder shall expire on such date as
shall be set forth in the applicable option agreement, except that,
in the ca
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