-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B9HFyL2TUBO06paCpOlndMvradvwZg6N5U9kk6V7wxKZmkl4CAXwVyzGuxnkG3Lv gX+IhgvTtJWwFGK2RkQZXA== 0000891618-99-002038.txt : 19990507 0000891618-99-002038.hdr.sgml : 19990507 ACCESSION NUMBER: 0000891618-99-002038 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19990506 EFFECTIVENESS DATE: 19990506 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PEOPLESOFT INC CENTRAL INDEX KEY: 0000875570 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 680137069 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-77911 FILM NUMBER: 99612586 BUSINESS ADDRESS: STREET 1: 4460 HACIENDA DR POST OFFICE BOX 8015 CITY: PLEASANTON STATE: CA ZIP: 94588 BUSINESS PHONE: 5102253000 MAIL ADDRESS: STREET 1: 4440 ROSEWOOD DRIVE CITY: PLEASANTON STATE: CA ZIP: 94588-3031 S-8 1 FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 1999 REGISTRATION NO. 333-_____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ------------ PEOPLESOFT, INC. (Exact name of registrant as specified in its charter) DELAWARE 68-0137069 (State or Other Jurisdiction (I.R.S. Employer Identification No.) of Incorporation or Organization) 4460 HACIENDA DRIVE PLEASANTON, CALIFORNIA 94588 (Address of Principal Executive Offices) (Zip Code) ---------------------- TRIMARK TECHNOLOGIES, INC. 1998 DIRECTOR AND EXECUTIVE OFFICER NON-STATUTORY STOCK OPTION PLAN TRIMARK TECHNOLOGIES, INC. 1995 DIRECTOR AND EXECUTIVE OFFICER STOCK OPTION PLAN TRIMARK TECHNOLOGIES, INC. 1995 EMPLOYEES AND CONSULTANTS STOCK OPTION PLAN TRIMARK TECHNOLOGIES, INC. 1993 STOCK OPTION PLAN (Full title of the Plans) ---------------------- DAVID A. DUFFIELD PRESIDENT AND CHIEF EXECUTIVE OFFICER PEOPLESOFT, INC. 4460 HACIENDA DRIVE, PLEASANTON, CALIFORNIA 94588 (Name and Address of Agent for Service) (925) 694-3000 (Telephone number, including area code, of agent for service) ---------------------- 2 CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Title of Securities to Amount to be Offering Price Aggregate Amount of be Registered Registered (1) per Share (2) Offering Price (2) Registration Fee - ---------------------- -------------- ---------------- ------------------ ---------------- Common Stock, par value 596,750 shares $ 13.75 $ 8,205,313 $ 1,881 $.01 per share
(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the TriMark Technologies, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan, 1995 Director and Executive Officer Stock Option Plan, 1995 Employees and Consultants Stock Option Plan, and the 1993 Stock Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of PeopleSoft, Inc. Common Stock. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the maximum offering price per share as such options may be exercised. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference PeopleSoft, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1998; (b) The description of the Registrant's Common Stock to be offered hereby contained in the Registrant's Registration Statement on Form 8-A dated October 7, 1992, filed pursuant to Section 12(g) of the Exchange Act including any amendment or report filed for the purpose of updating such description. (d) The description of the Registrant's Preferred Share Purchase Rights contained in its Registration Statement on Form 8-A/A filed with the Commission on March 25, 1998 including any amendment or report filed for the purpose of updating such description. All documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities Not Applicable. Item 5. Interests of Named Experts and Counsel Not Applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933 ( the "1933 Act"). Article XIII of the Registrant's currently effective Certificate of Incorporation and Article VI of 4 the Registrant's Bylaws provide for indemnification of its directors, officers, employees and other agents. In addition, the Registrant has entered into indemnification agreements with its officers and directors. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits
Exhibit Number Exhibit ------- ------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statements on Form 8-A which are incorporated herein by reference pursuant to Items 3(b) and (c). 5 Opinion and consent of Gibson, Dunn & Crutcher LLP. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Gibson, Dunn & Crutcher is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 TriMark Technologies, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan and forms of option agreements thereunder 99.2 TriMark Technologies, Inc. 1995 Director and Executive Officer Stock Option Plan (as amended) and forms of option agreements thereunder 99.3 TriMark Technologies, Inc. 1995 Employees and Consultants Stock Option Plan and forms of option agreements thereunder 99.4 TriMark Technologies, Inc. 1993 Stock Option Plan (as amended) and form of option agreement thereunder
Item 9. Undertaking A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering II-2 5 thereof, and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold upon the termination of the following TriMark Technologies, Inc. stock option plans: 1998 Director and Executive Officer Non-Statutory Stock Option Plan, 1995 Director and Executive Officer Stock Option Plan (as amended), 1995 Employees and Consultants Stock Option Plan, and 1993 Stock Option Plan (as amended). B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnity provisions incorporated by reference in Item 6, or otherwise, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-3 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pleasanton, State of California, on this 6th day of May, 1999. PEOPLESOFT, INC. By: /s/ Alfred J. Castino --------------------------------------- Alfred J. Castino Senior Vice President, Finance and Administration, and Chief Financial Officer (Principal Financial and Accounting Officer) POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That the undersigned officers and directors of PeopleSoft, Inc., a Delaware corporation, do hereby constitute and appoint David A. Duffield, Alfred J. Castino and Robert D. Finnell, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. II-4 7 Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE /s/ David A. Duffield Chairman of the Board of Directors, May 6, 1999 - ---------------------------------- David A. Duffield President and Chief Executive Officer (Principal Executive Officer) /s/ Alfred J. Castino Senior Vice President of Finance, May 6, 1999 - ----------------------------------- Alfred J. Castino Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer) /s/ Aneel Bhusri Vice Chairman of the Board of Directors May 6, 1999 - ----------------------------------- Aneel Bhusri /s/ A. George "Skip" Battle Director May 6, 1999 - ----------------------------------- A. George "Skip" Battle /s/ Edgar F. Codd Director May 6, 1999 - ----------------------------------- Edgar F. Codd /s/ Albert W. Duffield Director May 6, 1999 - ----------------------------------- Albert W. Duffield /s/ George J. Still, Jr. Director May 6, 1999 - ----------------------------------- George J. Still, Jr. /s/ Cyril J. Yansouni Director May 6, 1999 - ----------------------------------- Cyril J. Yansouni
II-5 8 EXHIBIT INDEX Exhibit Number Exhibit 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statements on Form 8-A which are incorporated herein by reference pursuant to Items 3(b) and (c). 5 Opinion and consent of Gibson, Dunn & Crutcher LLP. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Gibson, Dunn & Crutcher LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 TriMark Technologies, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan and forms of option agreements thereunder 99.2 TriMark Technologies, Inc. 1995 Director and Executive Officer Stock Option Plan (as amended) and forms of option agreements thereunder 99.3 TriMark Technologies, Inc. 1995 Employees and Consultants Stock Option Plan and forms of option agreements thereunder 99.4 TriMark Technologies, Inc. 1993 Stock Option Plan (as amended) and form of option agreement thereunder EX-5 2 OPINION AND CONSENT OF GIBSON, DUNN & CRUTCHER LLP 1 EXHIBIT 5 May 6, 1999 (650) 849-5300 C 72711-00010 PeopleSoft, Inc. 4460 Hacienda Drive Pleasanton, CA 94588 Re: Registration Statement on Form S-8 of PeopleSoft, Inc. Ladies and Gentlemen: We refer to the registration statement on Form S-8 ("Registration Statement"), under the Securities Act of 1933, as amended (the "Securities Act"), filed by PeopleSoft, Inc., a Delaware corporation (the "Company"), with respect to the proposed offering by the Company of up to 596,750 shares (the "Shares") of the common stock of the Company, $.01 par value per share (the "Common Stock"), under the TriMark Technologies, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan, the 1995 Director and Executive Officer Stock Option Plan, the 1995 Employees and Consultants Stock Option Plan, and the 1993 Stock Option Plan (collectively, the "Plans"). We have examined the originals or certified copies of such corporate records, certificates of officers of the Company and/or public officials and such other documents and have made such other factual and legal investigations as we have deemed relevant and necessary as the basis for the opinions set forth below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as conformed or photostatic copies and the authenticity of the originals of such copies. Based on our examination mentioned above, subject to the assumptions stated above and relying on the statements of fact contained in the documents that we have examined, we are of the opinion that (i) the issuance by the Company of the Shares has been duly authorized for issuance and (ii) when issued in accordance with the terms of the Plans, the Shares will be duly and validly issued, fully paid and non-assessable shares of Common Stock. We are admitted to practice in the State of California, and are not admitted to practice in the State of Delaware. However, for the limited purposes of our opinion set forth above, we are generally familiar with the General Corporation Law of the State of Delaware (the "DGCL") as presently in effect and have made such inquiries as we consider necessary to render this opinion with respect to a Delaware corporation. This opinion letter is limited to the laws of the State of 2 California and, to the limited extent set forth above, the DGCL, as such laws presently exist and to the facts as they presently exist. We express no opinion with respect to the effect or applicability of the laws of any other jurisdiction. We assume no obligation to revise or supplement this opinion letter should the laws of such jurisdictions be changed after the date hereof by legislative action, judicial decision or otherwise. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the General Rules and Regulations of the Securities and Exchange Commission. Very truly yours, GIBSON, DUNN & CRUTCHER LLP LC/GTD/brg EX-23.1 3 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Trimark Technologies, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan, the Trimark Technologies, Inc. 1995 Director and Executive Officer Stock Option Plan, the Trimark Technologies, Inc. 1995 Employees and Consultants Stock Option Plan, and the Trimark Technologies, Inc. 1993 Stock Option Plan of our report dated January 26, 1999 with respect to the consolidated financial statements of PeopleSoft, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1998 filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Walnut Creek, California May 6, 1999 EX-99.1 4 1998 NON-STATUTORY STOCK OPTION PLAN 1 EXHIBIT 99.1 TRiMARK TECHNOLOGIES, INC. 1998 DIRECTOR AND EXECUTIVE OFFICER NON-STATUTORY STOCK OPTION PLAN 1. PURPOSE. The purpose of this TRiMARK Technologies, Inc. (the "Company") 1998 Director and Executive Officer Non-Statutory Stock Option Plan (the "Plan") is to advance the interests of the Company and its shareholders by providing those directors and executive officers of the Company and its Affiliates, upon whose judgment, initiative and efforts the successful conduct of the business of the Company and its Affiliates largely depends, with additional incentive to perform in a superior manner. A purpose of the Plan is also to attract people of experience and ability to the service of the Company and its Affiliates. 2. DEFINITIONS. (a) "Affiliate" means (i) a member of a controlled group of corporations of which the Company is a member or (ii) an unincorporated trade or business which is under common control with the Company as determined in accordance with Section 414(c) of the Internal Revenue Code of 1986, as amended, (the "Code") and the regulations issued thereunder. For purposes hereof, a "controlled group of corporations" shall mean a controlled group of corporations as defined in Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and (e)(3)(C). (b) "Award" means a grant of Non-statutory Stock Options under the provisions of this Plan. (c) "Board of Directors" or "Board" means the board of directors of the Company or any duly authorized committee thereof. (d) "Common Stock" means the common stock of the Company. (e) "Date of Grant" means the date an Award is effective pursuant to the terms hereof. (f) "Director" means a member of the Board. (g) "Disability" means the permanent and total inability by reason of mental or physical infirmity, or both, of a Participant to perform the work customarily assigned to the Participant. Additionally, a medical doctor selected or approved by the Board must advise the Board that it is either not possible to determine when such Disability will terminate or that it 2 appears probable that such Disability will be permanent during the remainder of said Participant's lifetime. (h) "Executive Officer" means the president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy making function, or any other person who performs similar policy making functions for the Company. (i) "Fair Market Value" means, when used in connection with the Common Stock on a certain date, the fair market value as determined in good faith by the Board. (j) "Non-statutory Stock Option" or "Option" means an option to purchase Common Stock granted to an Executive Officer or Director pursuant to Section 7 of this Plan. (k) "Participant" means an Executive Officer or Director of the Company or its Affiliates chosen by the Board to participate in the Plan. (l) "Plan Year(s)" means a calendar year or years commencing on or after January 1, 1998. 3. ADMINISTRATION. The Plan shall be administered by the Board. The Board is authorized, subject to the provisions of the Plan, to establish such rules and regulations as it sees necessary for the proper administration of the Plan and to make whatever determinations and interpretations in connection with the Plan it sees as necessary or advisable. All determinations and interpretations made by the Board shall be binding and conclusive. 4. TYPE OF AWARD. Awards under the Plan to Directors and Executive Officers may only be granted as Non-statutory Stock Options. 5. OPTIONS AVAILABLE PURSUANT TO THE PLAN. Subject to adjustment as provided in Section 13, the maximum number of options granted under the Plan shall be 800,000 Non-statutory Stock Options. These options may be granted with respect to shares of Common Stock which are either authorized but unissued shares or shares previously issued and reacquired by the Company. To the extent that options are granted under the Plan, such options will be unavailable for future grants under the Plan except that, to the extent that options granted under the Plan terminate, expire or are canceled without having been exercised, such options may be reissued. 6. ELIGIBILITY. Executive Officers and Directors shall be eligible to receive Non-statutory Stock Options under the Plan. 3 7. NON-STATUTORY STOCK OPTIONS. 7.1 Grant of Non-statutory Stock Options. The Board may, from time to time, grant Non-statutory Stock Options to Executive Officers and Directors upon such terms and conditions as the Board may determine. (a) Terms of Non-Statutory Options. Non-statutory Stock Options granted under this Plan are subject to the following terms and conditions: (i) Price. The purchase price per share of Common Stock deliverable upon the exercise of each Non-statutory Stock Option shall be determined on the date the option is granted by the Board. Shares may be purchased only upon full payment of the purchase price. Payment of the purchase price may be made, in whole or in part, through the surrender of shares of the Common Stock of the Company at the Fair Market Value of such shares on the date of surrender determined in the manner described in Section 2(i) of the Plan. (ii) Terms of Options. The term during which each Non-statutory Stock Option may be exercised shall be five years from the Date of Grant, or such shorter period determined by the Board as of the Date of Grant. The Board shall determine the date on which each Non-statutory Stock Option shall become exercisable and may provide that a Non-statutory Stock Option shall become exercisable in installments. The shares comprising each installment may be purchased in whole or in part at any time after such installment becomes purchasable. The Board may, in its sole discretion, accelerate the time at which any Non-statutory Stock Option may be exercised in whole or in part. (iii) Termination of Service. Upon the termination of a Participant's service for any reason other than Disability or death, the Participant's Non-statutory Stock Options shall expire upon termination. In the event of the death or Disability of any Participant, all Non-statutory Stock Options held by the Participant, whether or not vested at such time, shall be exercisable by the Participant or the legal representatives or beneficiaries of the Participant for one year or such longer period as determined by the Board following the date of the Participant's death or cessation of service due to Disability, provided that in no event shall the period extend beyond the expiration of the Non-statutory Stock Option term. 8. SURRENDER OPTION. In the event of a Participant's termination of employment as a result of death, Disability or retirement, the Participant (or the Participant's legal representative(s), heir(s), or devisee(s)) may, in a form acceptable to the Board make application to surrender all or part of options held by such Participant in exchange for a cash payment from the Company of an amount equal to the difference between the Fair Market Value of the Common Stock on the date of termination and the exercise price per share of the option on the Date of Grant. Whether the Board accepts such application or determines to make payment, in whole or part, is within its absolute and sole discretion, it being expressly understood that the Board is under no obligation to any Participant whatsoever to make such payments. In the event that the Board accepts such application and the 4 Company determines to make payment, such payment shall be in lieu of the exercise of the underlying option and such option shall cease to be exercisable. 9. RIGHTS OF A SHAREHOLDER; NON-TRANSFERABILITY. No Participant shall have any rights as a shareholder with respect to any shares covered by a Non-statutory Stock Option until the date of issuance of a stock certificate for such shares. Nothing in this Plan or in any Award granted confers on any person any right to continue in the employ of the Company or its Affiliates or to continue to perform services for the Company or its Affiliates or interferes in any way with the right of the Company or its Affiliates to terminate a Participant's services as an Executive Officer or Director at any time. No Award under the Plan shall be transferable by the Participant other than by will or the laws of descent and distribution. Each option granted hereunder may be only exercised during the Participant's lifetime by the Participant or by a guardian or legal representative as set forth herein. 10. AGREEMENT WITH GRANTEES. Each Award of Options will be evidenced by a written agreement, executed by the Participant and the Company or its Affiliates which describes the conditions for receiving the Awards including the date of Award, the purchase price if any, applicable periods, and any other terms and conditions as may be required by applicable securities law. 11. DESIGNATION OF BENEFICIARY. A Participant may, with the consent of the Board, designate a person or persons to receive, in the event of death, any stock option to which the Participant would then be entitled. Such designation will be made upon forms supplied by and delivered to the Company and may be revoked in writing. If a Participant fails effectively to designate a beneficiary, then the Participant's estate will be deemed to be the beneficiary. 12. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in the outstanding shares of Common Stock of the Company by reason of any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such outstanding shares without receipt or payment of consideration by the Company, the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant, including any or all of the following: (a) adjustments in the aggregate number or kind of shares of Common Stock which may be awarded under the Plan; (b) adjustments in the aggregate number or kind of shares of Common Stock covered by Awards already made under the Plan; and 5 (c) adjustments in the purchase price of outstanding Non-statutory Stock Options. No such adjustments may, however, materially change the value of benefits available to a Participant under a previously granted Award. Nothing herein shall be construed to require any adjustment in the event the Company pays cash dividends on the Common Stock. 13. WITHHOLDING. There may be deducted from each distribution of cash and/or Common Stock under the Plan the amount of tax required by any governmental authority to be withheld. 14. SHAREHOLDERS AGREEMENT. All Common Stock issued pursuant to this Plan shall be subject to the Shareholders Agreement which now exists or may hereafter be entered into with respect to the Company's Common Stock. Prior to issuance of any Common Stock pursuant to this Plan, the Participant shall execute such documents as are necessary in the opinion of counsel for the Company to make the Participant subject to any such Shareholders Agreement with respect to such Common Stock. 15. AMENDMENT OF THE PLAN. The Board may at any time, and from time to time, modify or amend the Plan in any respect. No such termination, modification or amendment may affect the rights of a Participant under an outstanding Award. 16. EFFECTIVE DATE OF PLAN. The Plan shall become effective as of __________, 1998, the date of its adoption by the Board. 17. TERMINATION OF THE PLAN. The right to grant Awards under the Plan will terminate upon the earlier of five (5) years after the effective date of the Plan or the issuance of Common Stock or the exercise of options equivalent to the maximum number of shares reserved under the Plan as set forth in Section 5. The Board of Directors has the right to suspend or terminate the Plan at any time. No termination shall, without the consent of a Participant, adversely affect such individual's rights under a previously granted Award. 18. APPLICABLE LAW. The Plan will be administered in accordance with the laws of the State of Illinois to the extent not preempted by federal law as now or hereafter in effect. 6 - --------------------------- ------------------------------ Date Adopted (Signature) Title ------------------------------ Secretary 7 TRiMARK TECHNOLOGIES, INC. 1998 DIRECTOR AND EXECUTIVE OFFICER STOCK OPTION PLAN STOCK OPTION AGREEMENT THIS AGREEMENT effective as of __________________ (hereinafter referred to as the "Grant Date") by and between TRiMARK Technologies, Inc. (hereinafter referred to as the "Company") and __________________________ (hereinafter referred to as the "Optionee"); PREMISES: The Company has adopted the TRiMARK Technologies, Inc. 1998 Director and Executive Officer Stock Option Plan (hereinafter referred to as the "Plan") to permit options to purchase shares of the Company's common stock (hereinafter referred to as "Stock"), to be granted to certain Directors and Executive Officers of the Company and its Affiliates; and The Optionee is a Director and/or an Executive Officer of the Company or an Affiliate and such corporation wishes to retain Optionee in such capacity by providing Optionee a means to acquire and/or increase his or her proprietary interest in the Company. AGREEMENT NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: l. Grant of Options. Subject to the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof, and this Agreement, the Company grants to the Optionee the options to purchase from the Company all or any part of an aggregate number of ________ shares of Stock (hereinafter such shares of Stock are referred to as the "Optioned Shares" and the options to purchase the Optioned Shares are referred to as the "Options"). Options to purchase all shares shall be Non-Statutory Stock Options. 2. Option Exercise Price. The price to be paid for the Optioned Shares shall be _______________ ($____) per share. 3. Vesting. The Optionee may only exercise Options to the extent such Options are vested at the time the Options are exercised. The schedule for vesting of Options is as follows: Percentage of Granted Options Date which are Vested ---- ----------------------------- 8 4. Minimum Exercise Amount. The minimum number of Options which may be exercised at one time shall be 100 or, if less are outstanding, the remaining vested Options. 5. Expiration of Options. None of the Optioned Shares may be purchased after _________________ (which date shall not be more than five (5) years from the Grant Date). 6. Exercise of Options. An Option may be exercised only by written notice, delivered or mailed by postpaid, registered or certified mail addressed to the President and Chief Executive Officer of the Company specifying the number of Optioned Shares being purchased. Such notice shall be accompanied by payment in cash or its equivalent of the entire purchase price of the Optioned Shares being purchased, by tendering previously acquired shares of Stock having a Fair Market Value equal to the entire purchase price of the Optioned Shares being purchased, or by any combination of cash and Stock in which the cash or its equivalent paid and the Fair Market Value of the Stock tendered is equal to the entire purchase price of the Optioned Shares being purchased. Shares of Stock tendered shall be duly endorsed in blank or accompanied by stock powers duly endorsed in blank. Upon receipt of the payment of the entire purchase price of the Optioned Shares so purchased, certificates for such Optioned Shares shall be issued to the Optionee. The Optioned Shares so purchased shall be fully paid and nonassessable. Such Optioned Shares shall bear a legend restricting their transferability in substantially the following form: "Transfer of the securities evidenced by this certificate is not valid except to the extent that such transfer has complied with the provisions regarding transfer contained in a Shareholder Agreement, dated as of May 14, 1996, as may be amended from time to time. A copy of the Shareholder Agreement, which imposes various restrictions upon the holder of this certificate, is available to interested parties for inspection at the offices of the Company." "The securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state, but have been issued in reliance upon exemptions therefrom. The securities may not be offered, sold, pledged or otherwise transferred without registration under the Act or the opinion of counsel satisfactory to the corporation that an exemption from registration is available or that such transfer may otherwise lawfully be made." 7. Surrender of Options. A Participant who terminates work for which the Director was engaged as a result of death, Disability or normal retirement may make application to surrender all or part of the Options held by such Participant in exchange for a cash payment. Acceptance of such application by the Board is within the Board's absolute and sole discretion. 8. Termination of Optionee. (a) If the Optionee ceases to be a Director and/or an Executive Officer of the Company or an Affiliate for any reason other than Disability of death, the Option shall expire on termination. 9 (b) If the Optionee ceases to be a Director and/or an Executive Officer of the Company or an Affiliate for reasons of Disability or death, the Options may be exercised, to the extent otherwise exercisable at the date of Optionee's Disability or death, in whole or in part, within one year after the date of Disability or death and not thereafter, by the person or persons entitled to do so under the Optionee's will or, if the Optionee shall fail to make a testamentary disposition of the Options or shall die intestate, by the Optionee's legal representative or representatives. (c) In no event shall the exercise period for a terminated Optionee extend beyond the expiration of the Option's term. 9. Optionee's Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company and shall not have any shareholder privileges with respect to any Optioned Shares except to the extent that the Option shall have been exercised with respect thereto and a stock certificate issued therefor. All rights as a holder of the stock shall be subject to the Company's Shareholders Agreement. Optionee shall execute such documents as are reasonably necessary in the opinion of the Company's counsel to make the Optionee subject to the Shareholders Agreement with respect to the Optioned Shares. 10. Withholding. The Company may require as a condition precedent to the issuance or transfer of any shares of Stock upon exercise of any Options that the Optionee make such arrangements as the Board or its designee may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with the exercise of the Options. If the amount so requested is not paid, the Company may refuse to issue or transfer shares of Stock upon exercise of the Options. 11. Nontransferability of Options. The Options herein granted shall not be transferable by the Optionee otherwise than by will or the laws of descent and distribution, and may be exercised during the life of the Optionee only by the Optionee. 12. Dilution and Other Adjustments. The existence of the Options herein granted shall not affect in any way the right or power of the Company or its shareholders to make or authorize any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such shares without receipt or payment of consideration by the Company; provided, however, that the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant as provided in the Plan. Nothing herein shall be construed to require an adjustment in the event the Company pays cash dividends. 13. Definitions. The definition of any term not defined in this Agreement shall be defined as such term is defined in the Plan. 14. Interpretation. As a condition of the granting of the Options, the Optionee agrees for himself or herself and Optionee's legal representatives, that any dispute or disagreement which may arise under or as a result of or pursuant to this Agreement or the Plan shall be 10 determined in good faith by the Board in its sole discretion, and any such interpretation by the Board of the terms of this Agreement or the Plan shall be final, binding, and conclusive. 15. Professional Advice. The acceptance and exercise of the Options and the sale of Stock issued pursuant to exercise of the Options may have consequences under federal and state tax and securities laws which may vary depending on the individual circumstances of the Optionee. Accordingly, the Optionee acknowledges that the Optionee has been advised to consult his or her personal legal and tax advisor in connection with this Agreement and his or her dealing with respect to the Options or the Stock and has received no advice from the Company in connection therewith. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officers, and the Optionee has hereunto affixed his or her hand and seal, the day and year first above written. TRiMARK TECHNOLOGIES, INC. ______________________ By:_________ Optionee President and Chief Executive Officer Attest:_______________ EX-99.2 5 1995 STOCK OPTION PLAN 1 EXHIBIT 99.2 TRiMARK TECHNOLOGIES, INC. 1995 DIRECTOR AND EXECUTIVE OFFICER STOCK OPTION PLAN (AS AMENDED AND RESTATED EFFECTIVE DECEMBER 1, 1997) 1. PURPOSE. The purpose of this TRiMARK Technologies, Inc. (the "Company") Director and Executive Officer 1995 Stock Option Plan (the "Plan") is to advance the interests of the Company and its shareholders by providing those directors and executive officers of the Company and its Affiliates, upon whose judgment, initiative and efforts the successful conduct of the business of the Company and its Affiliates largely depends, with additional incentive to perform in a superior manner. A purpose of the Plan is also to attract people of experience and ability to the service of the Company and its Affiliates. 2. DEFINITIONS. (a) "Affiliate" means (i) a member of a controlled group of corporations of which the Company is a member or (ii) an unincorporated trade or business which is under common control with the Company as determined in accordance with Section 414(c) of the Internal Revenue Code of 1986, as amended, (the "Code") and the regulations issued thereunder. For purposes hereof, a "controlled group of corporations" shall mean a controlled group of corporations as defined in Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and (e)(3)(C). (b) "Award" means a grant of Non-statutory Stock Options or Incentive Stock Options under the provisions of this Plan. (c) "Board of Directors" or "Board" means the board of directors of the Company or any duly authorized committee thereof. (d) "Common Stock" means the common stock of the Company. (e) "Date of Grant" means the date an Award is effective pursuant to the terms hereof. (f) "Director" means a member of the Board. (g) "Disability" means the permanent and total inability by reason of mental or physical infirmity, or both, of Participant to perform the work customarily assigned to the Participant. Additionally, a medical doctor selected or approved by the Board must advise the Board that it is either not possible to determine when such Disability will terminate or that it appears probable that such Disability will be permanent during the remainder of said Participant's lifetime. 2 (h) "Executive Officer" means the president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy making function, or any other person who performs similar policy making functions for the Company. (i) "Fair Market Value" means, when used in connection with the Common Stock on a certain date, the fair market value as determined in good faith by the Board. (j) "Incentive Stock Option" means an Option granted by the Board to an Executive Officer, which Option is designed as an Incentive Stock Option pursuant to Section 8 of this Plan. (k) "Non-statutory Stock Option" means an Option granted to an Executive Officer or Director and which is not an Incentive Stock Option. (l) "Option" means an Award granted under Section 7 or Section 8 of this Plan. (m) "Participant" means an Executive Officer or Director of the Company or its Affiliates chosen by the Board to participate in the Plan. (n) "Plan Year(s)" means a calendar year or years commencing on or after January 1, 1995. 3. ADMINISTRATION. The Plan shall be administered by the Board. The Board is authorized, subject to the provisions of the Plan, to establish such rules and regulations as it sees necessary for the proper administration of the Plan and to make whatever determinations and interpretations in connection with the Plan it sees as necessary or advisable. All determinations and interpretations made by the Board shall be binding and conclusive. 4. TYPES OF AWARDS. Awards under the Plan to Directors may be granted as Non-statutory Stock Options. Awards under the Plan to Executive Officers may be granted in any one or a combination of: (a) Non-statutory Stock Options; (b) Incentive Stock Options; and as defined in Sections 7 and 8 of the Plan. 3 5. OPTIONS AVAILABLE PURSUANT TO THE PLAN. Subject to adjustment as provided in Section 13, the maximum number of options granted under the Plan shall be 10,000 Incentive Stock Options and 1,950,000 Nonstatutory Stock Options. These options may be granted with respect to shares of Common Stock which are either authorized but unissued shares or shares previously issued and reacquired by the Company. To the extent that options are granted under the Plan, such options will be unavailable for future grants under the Plan except that, to the extent that options granted under the Plan terminate, expire or are canceled without having been exercised, such options may be reissued. 6. ELIGIBILITY. Executive Officers shall be eligible to receive Incentive Stock Options and Non-statutory Stock Options under the Plan. Directors shall be eligible to receive Non-statutory Stock Options under the Plan. 7. NON-STATUTORY STOCK OPTIONS. 7.1 Grant of Non-statutory Stock Options. The Board may, from time to time, grant Non-statutory Stock Options to Executive Officers and Directors and, upon such terms and conditions as the Board may determine, grant Non-statutory Stock Options in exchange for and upon surrender of previously granted Awards under this Plan. (a) Terms of Non-Statutory Options. Non-statutory Stock Options granted under this Plan are subject to the following terms and conditions: (i) Price. The purchase price per share of Common Stock deliverable upon the exercise of each Non-statutory Stock Option shall be determined on the date the option is granted by the Board. Shares may be purchased only upon full payment of the purchase price. Payment of the purchase price may be made, in whole or in part, through the surrender of shares of the Common Stock of the Company at the Fair Market Value of such shares on the date of surrender determined in the manner described in Section 2(i) of the Plan. (ii) Terms of Options. The term during which each Non-statutory Stock Option may be exercised shall be 10 years from the Date of Grant, or such shorter period determined by the Board as of the Date of Grant. The Board shall determine the date on which each Non-statutory Stock Option shall become exercisable and may provide that a Non-statutory Stock Option shall become exercisable in installments. The shares comprising each installment may be purchased in whole or in part at any time after such installment becomes purchasable. The Board may, in its sole discretion, accelerate the time at which any Non-statutory Stock Option may be exercised in whole or in part. 4 (iii) Termination of Service. Upon the termination of a Participant's service for any reason other than Disability or death, the Participant's Non-statutory Stock Options shall expire upon termination. In the event of the death or Disability of any Participant, all Non-statutory Stock Options held by the Participant, whether or not vested at such time, shall be exercisable by the Participant or the legal representatives or beneficiaries of the Participant for one year or such longer period as determined by the Board following the date of the Participant's death or cessation of service due to Disability, provided that in no event shall the period extend beyond the expiration of the Non-statutory Stock Option term. 8. INCENTIVE STOCK OPTIONS. 8.1 Grant of Incentive Stock Options. The Board may, from time to time, grant Incentive Stock Options to Executive Officers. Incentive Stock Options granted pursuant to the Plan shall be subject to the following terms and conditions: (a) Price. The purchase price per share of Common Stock deliverable upon the exercise of each Incentive Stock Option shall be not less than 100% of the Fair Market Value of the Company's Common Stock on the Date of Grant. However, if an Executive Officer owns Common Stock possessing more than 10% of the total combined voting power of all classes of Common Stock of the Company (or under Section 425(d) of the Code is deemed to own Common Stock representing more than 10% of the total combined voting power of all such classes of Common Stock), the purchase price per share of Common Stock deliverable upon the exercise of each Incentive Stock Option shall not be less than 110% of the Fair Market Value of the Company's Common Stock on the Date of Grant. Shares may be purchased only upon payment of the full purchase price. Payment of the purchase price may be made, in whole or in part, through the surrender of shares of the Common Stock of the Company at the Fair Market Value of such shares on the date of surrender determined in the manner described in Section 2(i). (b) Amounts of Options. Incentive Stock Options may be granted to any Executive Officer in such amounts as determined by the Board. In the case of an option intended to qualify as an Incentive Stock Option, the aggregate Fair Market Value (determined as of the time the option is granted) of the Common Stock with respect to which Incentive Stock Options granted are exercisable for the first time by the Participant during any calendar year (under all plans of the Participant's employer corporation and its parent and subsidiary corporations) shall not exceed $100,000. The provisions of this Section 8.1(b) shall be construed and applied in accordance with Section 422(d) of the Code and the regulations, if any, promulgated thereunder. To the extent an Award under this Section 8.1 exceeds this $100,000 limit, the portion of the Award in excess of such limit shall be deemed a Non-statutory Stock Option. (c) Terms of Options. The term during which each Incentive Stock Option may be exercised shall be determined by the Board at the Date of Grant, but in no event shall an Incentive Stock Option be exercisable in whole or in part more than 10 years from the Date of Grant. If at the time an Incentive Stock Option is granted to an Executive Officer, the Executive Officer owns 5 Common Stock representing more than 10% of the total combined voting power of the Company (or, under Section 425(d) of the Code, is deemed to own Common Stock representing more than 10% of the total combined voting power of all such classes of Common Stock) the Incentive Stock Option granted to such Executive Officer shall not be exercisable after the expiration of five years from the Date of Grant. No Incentive Stock Option granted under this Plan is transferable except by will or the laws of descent and distribution and is exercisable in his or her lifetime only by the Executive Officer to whom it is granted. The Board shall determine the date on which each Incentive Stock Option shall become exercisable and may provide that an Incentive Stock Option shall become exercisable in installments. The shares comprising each installment may be purchased in whole or in part at any time after such installment becomes purchasable, provided that the amount able to be first exercised in a given year is consistent with the terms of Section 422 of the Code. The Board may, in its sole discretion, accelerate the time at which any Incentive Stock Option may be exercised in whole or in part, provided that it is consistent with the terms of Section 422 of the Code. (d) Termination of Employment. Upon the termination of a Participant's service for any reason other than Disability or death, the Incentive Stock Options shall expire upon termination. In the event of death or Disability of any Participant, all Incentive Stock Options held by such Participant, whether or not vested at such time, shall be exercisable by the Participant or the Participant's legal representatives or beneficiaries for one year following the date of the Participant's death or cessation of employment due to Disability. In no event shall the exercise period extend beyond the expiration of the Incentive Stock Option term. (e) Compliance with Code. The options granted under this Section 8 of the Plan are intended to qualify as incentive stock options within the meaning of Section 422 of the Code, but the Company makes no warranty as to the qualification of any option as an incentive stock option within the meaning of Section 422 of the Code or the tax consequences associated with any such qualification or non-qualification. 9. SURRENDER OPTION. In the event of a Participant's termination of employment as a result of death, Disability or retirement, the Participant (or the Participant's legal representative(s), heir(s), or devisee(s)) may, in a form acceptable to the Board make application to surrender all or part of options held by such Participant in exchange for a cash payment from the Company of an amount equal to the difference between the Fair Market Value of the Common Stock on the date of termination and the exercise price per share of the option on the Date of Grant. Whether the Board accepts such application or determines to make payment, in whole or part, is within its absolute and sole discretion, it being expressly understood that the Board is under no obligation to any Participant whatsoever to make such payments. In the event that the Board accepts such application and the Company determines to make payment, such payment shall be in lieu of the exercise of the underlying option and such option shall cease to be exercisable. 6 10. RIGHTS OF A SHAREHOLDER; NON-TRANSFERABILITY. No Participant shall have any rights as a shareholder with respect to any shares covered by a Non-statutory and/or Incentive Stock Option until the date of issuance of a stock certificate for such shares. Nothing in this Plan or in any Award granted confers on any person any right to continue in the employ of the Company or its Affiliates or to continue to perform services for the Company or its Affiliates or interferes in any way with the right of the Company or its Affiliates to terminate a Participant's services as an Executive Officer or Director at any time. No Award under the Plan shall be transferable by the Participant other than by will or the laws of descent and distribution. Each option granted hereunder may be only exercised during the Participant's lifetime by the Participant or by a guardian or legal representative as set forth herein. 11. AGREEMENT WITH GRANTEES. Each Award of Options will be evidenced by a written agreement, executed by the Participant and the Company or its Affiliates which describes the conditions for receiving the Awards including the date of Award, the purchase price if any, applicable periods, and any other terms and conditions as may be required by applicable securities law. 12. DESIGNATION OF BENEFICIARY. A Participant may, with the consent of the Board, designate a person or persons to receive, in the event of death, any stock option to which the Participant would then be entitled. Such designation will be made upon forms supplied by and delivered to the Company and may be revoked in writing. If a Participant fails effectively to designate a beneficiary, then the Participant's estate will be deemed to be the beneficiary. 13. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in the outstanding shares of Common Stock of the Company by reason of any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such outstanding shares without receipt or payment of consideration by the Company, the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant, including any or all of the following: (a) adjustments in the aggregate number or kind of shares of Common Stock which may be awarded under the Plan; (b) adjustments in the aggregate number or kind of shares of Common Stock covered by Awards already made under the Plan; and (c) adjustments in the purchase price of outstanding Incentive and/or Non-statutory Stock Options. 7 No such adjustments may, however, materially change the value of benefits available to a Participant under a previously granted Award. Nothing herein shall be construed to require any adjustment in the event the Company pays cash dividends on the Common Stock. 14. WITHHOLDING. There may be deducted from each distribution of cash and/or Common Stock under the Plan the amount of tax required by any governmental authority to be withheld. 15. SHAREHOLDERS AGREEMENT All Common Stock issued pursuant to this Plan shall be subject to the Shareholders Agreement which now exists or may hereafter be entered into with respect to the Company's Common Stock. Prior to issuance of any Common Stock pursuant to this Plan, the Participant shall execute such documents as are necessary in the opinion of counsel for the Company to make the Participant subject to any such Shareholders Agreement with respect to such Common Stock. 16. AMENDMENT OF THE PLAN. The Board may at any time, and from time to time, modify or amend the Plan in any respect. No such termination, modification or amendment may affect the rights of a Participant under an outstanding Award. 17. EFFECTIVE DATE OF PLAN. The Plan was effective upon adoption by the Board in 1995. The Plan as amended and restated shall become effective as of December 1, 1997. 18. TERMINATION OF THE PLAN. 8 The right to grant Awards under the Plan will terminate upon the earlier of ten (10) years after the effective date of the Plan or the issuance of Common Stock or the exercise of options equivalent to the maximum number of shares reserved under the Plan as set forth in Section 5. The Board of Directors has the right to suspend or terminate the Plan at any time. No termination shall, without the consent of a Participant, adversely affect such individual's rights under a previously granted Award. 19. APPLICABLE LAW. The Plan will be administered in accordance with the laws of the State of Illinois to the extent not preempted by federal law as now or hereafter in effect. - --------------------------- ------------------------------ Date Adopted (Signature) Title ------------------------------ Secretary 9 TRiMARK TECHNOLOGIES, INC. 1995 DIRECTOR AND EXECUTIVE OFFICER STOCK OPTION PLAN STOCK OPTION AGREEMENT FOR DIRECTORS THIS AGREEMENT effective as of __________________ (hereinafter referred to as the "Grant Date") by and between TRiMARK Technologies, Inc. (hereinafter referred to as the "Company") and __________________________ (hereinafter referred to as the "Optionee"); PREMISES: The Company has adopted the TRiMARK Technologies, Inc. 1995 Director and Executive Officer Stock Option Plan (hereinafter referred to as the "Plan") to permit options to purchase shares of the Company's common stock (hereinafter referred to as "Stock"), to be granted to certain Directors and Executive Officers of the Company and its Affiliates; and The Optionee is a Director of the Company or an Affiliate and such corporation wishes to retain Optionee in such capacity by providing Optionee a means to acquire and/or increase his or her proprietary interest in the Company. AGREEMENT NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: l. Grant of Options. Subject to the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof, and this Agreement, the Company grants to the Optionee the options to purchase from the Company all or any part of an aggregate number of ________ shares of Stock (hereinafter such shares of Stock are referred to as the "Optioned Shares" and the options to purchase the Optioned Shares are referred to as the "Options"). Options to purchase all shares shall be Non-Statutory Stock Options. 2. Option Exercise Price. The price to be paid for the Optioned Shares shall be _______________ ($____) per share. 3. Vesting. The Optionee may only exercise Options to the extent such Options are vested at the time the Options are exercised. The schedule for vesting of Options is as follows: 10 Percentage of Granted Options Date which are Vested ---- ----------------------------- 4. Minimum Exercise Amount. The minimum number of Options which may be exercised at one time shall be 100 or, if less are outstanding, the remaining vested Options. 5. Expiration of Options. None of the Optioned Shares may be purchased after _________________ (which date shall not be more than 10 years from the Grant Date). 6. Exercise of Options. An Option may be exercised only by written notice, delivered or mailed by postpaid, registered or certified mail addressed to the President and Chief Executive Officer of the Company specifying the number of Optioned Shares being purchased. Such notice shall be accompanied by payment in cash or its equivalent of the entire purchase price of the Optioned Shares being purchased, by tendering previously acquired shares of Stock having a fair market value equal to the entire purchase price of the Optioned Shares being purchased, or by any combination of cash and Stock in which the cash or its equivalent paid and the fair market value of the Stock tendered is equal to the entire purchase price of the Optioned Shares being purchased. Shares of Stock tendered shall be duly endorsed in blank or accompanied by stock powers duly endorsed in blank. Upon receipt of the payment of the entire purchase price of the Optioned Shares so purchased, certificates for such Optioned Shares shall be issued to the Optionee. The Optioned Shares so purchased shall be fully paid and nonassessable. Such Optioned Shares shall bear a legend restricting their transferability in substantially the following form: "Transfer of the securities evidenced by this certificate is not valid except to the extent that such transfer has complied with the provisions regarding transfer contained in a Shareholder Agreement, dated as of May 14, 1996, as may be amended from time to time. A copy of the Shareholder Agreement, which imposes various restrictions upon the holder of this certificate, is available to interested parties for inspection at the offices of the Company." "The securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state, but have been issued in reliance upon exemptions therefrom. The securities may not be offered, sold, pledged or otherwise transferred without registration under the Act or the opinion of counsel satisfactory to the corporation that an exemption from registration is available or that such transfer may otherwise lawfully be made." 7. Surrender of Options. A Director who terminates work for which the Director was engaged as a result of death, Disability or normal retirement may make application to surrender all or part of the Options held by such Director in exchange for a cash payment. Acceptance of such application by the Board is within the Board's absolute and sole discretion. 11 8. Termination of Optionee. (a) If the Optionee ceases to be a Director of the Company or an Affiliate for any reason other than Disability of death, the Option shall expire on termination. (b) If the Optionee ceases to be a Director of the Company or an Affiliate for reasons of Disability or death, the Options may be exercised, to the extent otherwise exercisable at the date of Optionee's Disability or death, in whole or in part, within one year after the date of Disability or death and not thereafter, by the person or persons entitled to do so under the Optionee's will or, if the Optionee shall fail to make a testamentary disposition of the Options or shall die intestate, by the Optionee's legal representative or representatives. (c) In no event shall the exercise period for a terminated Optionee extend beyond the expiration of the Option's term. 9. Optionee's Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company and shall not have any shareholder privileges with respect to any Optioned Shares except to the extent that the Option shall have been exercised with respect thereto and a stock certificate issued therefor. All rights as a holder of the stock shall be subject to the Company's Shareholders Agreement. Optionee shall execute such documents as are reasonably necessary in the opinion of the Company's counsel to make the Optionee subject to the Shareholders Agreement with respect to the Optioned Shares. 10. Withholding. The Company may require as a condition precedent to the issuance or transfer of any shares of Stock upon exercise of any Options that the Optionee make such arrangements as the Board or its designee may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with the exercise of the Options. If the amount so requested is not paid, the Company may refuse to issue or transfer shares of Stock upon exercise of the Options. 11. Nontransferability of Options. The Options herein granted shall not be transferable by the Optionee otherwise than by will or the laws of descent and distribution, and may be exercised during the life of the Optionee only by the Optionee. 12. Dilution and Other Adjustments. The existence of the Options herein granted shall not affect in any way the right or power of the Company or its shareholders to make or authorize any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such shares without receipt or payment of consideration by the Company; provided, however, that the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant as provided in the Plan. Nothing herein shall be construed to require an adjustment in the event the Company pays cash dividends. 13. Definitions. The definition of any term not defined in this Agreement shall be defined as such term is defined in the Plan. 12 14. Interpretation. As a condition of the granting of the Options, the Optionee agrees for himself or herself and Optionee's legal representatives, that any dispute or disagreement which may arise under or as a result of or pursuant to this Agreement or the Plan shall be determined in good faith by the Board in its sole discretion, and any interpretation by the Board of the terms of this Agreement or the Plan shall be final, binding, and conclusive. 15. Professional Advice. The acceptance and exercise of the Options and the sale of Stock issued pursuant to exercise of the Options may have consequences under federal and state tax and securities laws which may vary depending on the individual circumstances of the Optionee. Accordingly, the Optionee acknowledges that the Optionee has been advised to consult his or her personal legal and tax advisor in connection with this Agreement and his or her dealing with respect to the Options or the Stock and has received no advice from the Company in connection therewith. 13 IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officers, and the Optionee has hereunto affixed his or her hand and seal, the day and year first above written. TRiMARK TECHNOLOGIES, INC. _________________________ By: Optionee President and Chief Executive Officer Attest: __________________ EX-99.3 6 1995 EMPLOYEES AND CONSULTANTS STOCK OPTION PLAN 1 EXHIBIT 99.3 TRiMARK TECHNOLOGIES, INC. 1995 EMPLOYEES AND CONSULTANTS STOCK OPTION PLAN (AS AMENDED AND RESTATED EFFECTIVE DECEMBER 1, 1997) 1. PURPOSE. The purpose of this TRiMARK Technologies, Inc. (the "Company") Employees and Consultants 1995 Stock Option Plan (the "Plan") is to advance the interests of the Company and its shareholders by providing those employees and consultants of the Company and its Affiliates, upon whose judgment, initiative and efforts the successful conduct of the business of the Company and its Affiliates largely depends, with additional incentive to perform in a superior manner. A purpose of the Plan is also to attract people of experience and ability to the service of the Company and its Affiliates. 2. DEFINITIONS. (a) "Affiliate" means (i) a member of a controlled group of corporations of which the Company is a member or (ii) an unincorporated trade or business which is under common control with the Company as determined in accordance with Section 414(c) of the Internal Revenue Code of 1986, as amended, (the "Code") and the regulations issued thereunder. For purposes hereof, a "controlled group of corporations" shall mean a controlled group of corporations as defined in Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and (e)(3)(C). (b) "Award" means a grant of Non-statutory Stock Options or Incentive Stock Options under the provisions of this Plan. (c) "Board of Directors" or "Board" means the board of directors of the Company or a duly authorized committee thereof. (d) "Consultant" means an individual performing consulting services for the Company or Affiliate. (e) "Common Stock" means the common stock of the Company. (f) "Date of Grant" means the date an Award is effective pursuant to the terms hereof. (g) "Disability" means the permanent and total inability by reason of mental or physical infirmity, or both, of Participant to perform the work customarily assigned to the Participant. Additionally, a medical doctor selected or approved by the Board must advise the Board that it is 2 either not possible to determine when such Disability will terminate or that it appears probable that such Disability will be permanent during the remainder of said Participant's lifetime. (h) "Employee" means any individual who is currently employed by the Company or any Affiliate. (i) "Fair Market Value" means, when used in connection with the Common Stock on a certain date, the fair market value as determined in good faith by the Board. (j) "Incentive Stock Option" means an Option granted by the Board to an Employee, which Option is designed as an Incentive Stock Option pursuant to Section 8 of this Plan. (k) "Non-statutory Stock Option" means an Option granted to an Employee or Consultant and which is not an Incentive Stock Option. (l) "Option" means an Award granted under Section 7 or Section 8 of this Plan. (m) "Participant" means an Employee or Consultant of the Company or its Affiliates chosen by the Board to participate in the Plan. (n) "Plan Year(s)" means a calendar year or years commencing on or after January 1, 1995. 3. ADMINISTRATION. The Plan shall be administered by the Board. The Board is authorized, subject to the provisions of the Plan, to establish such rules and regulations as it sees necessary for the proper administration of the Plan and to make whatever determinations and interpretations in connection with the Plan it sees as necessary or advisable. All determinations and interpretations made by the Board shall be binding and conclusive. 4. TYPES OF AWARDS. Awards under the Plan to Consultants may be granted as Non-statutory Stock Options. Awards under the Plan to Employees may be granted in any one or a combination of: (a) Non-statutory Stock Options; (b) Incentive Stock Options; and as defined in Sections 7 and 8 of the Plan. 3 5. OPTIONS AVAILABLE PURSUANT TO THE PLAN. Subject to adjustment as provided in Section 13, the maximum number of options granted under the Plan shall be 90,000 Incentive Stock Options and 200,000 Nonstatutory Stock Options. These options may be granted with respect to shares of Common Stock which are either authorized but unissued shares or shares previously issued and reacquired by the Company. To the extent that options are granted under the Plan, such options will be unavailable for future grants under the Plan except that, to the extent that options granted under the Plan terminate, expire or are canceled without having been exercised, such options may be reissued. 6. ELIGIBILITY. Employees shall be eligible to receive Incentive Stock Options and Non-statutory Stock Options under the Plan. Consultants shall be eligible to receive Non-Statutory Stock Options under the Plan. 7. NON-STATUTORY STOCK OPTIONS. 7.1 Grant of Non-statutory Stock Options. The Board may, from time to time, grant Non-statutory Stock Options to Employees and Consultants and, upon such terms and conditions as the Board may determine, grant Non-statutory Stock Options in exchange for and upon surrender of previously granted Awards under this Plan. (a) Terms of Non-Statutory Options. Non-statutory Stock Options granted under this Plan are subject to the following terms and conditions: (i) Price. The purchase price per share of Common Stock deliverable upon the exercise of each Non-statutory Stock Option shall be determined on the date the option is granted by the Board. Shares may be purchased only upon full payment of the purchase price. Payment of the purchase price may be made, in whole or in part, through the surrender of shares of the Common Stock of the Company at the Fair Market Value of such shares on the date of surrender determined in the manner described in Section 2(i) of the Plan. (ii) Terms of Options. The term during which each Non-statutory Stock Option may be exercised shall be 10 years from the Date of Grant, or such shorter period determined by the Board at the Date of Grant. The Board shall determine the date on which each Non-statutory Stock Option shall become exercisable and may provide that a Non-statutory Stock Option shall become exercisable in installments. The shares comprising each installment may be purchased in whole or in part at any time after such installment becomes purchasable. The Board may, in its sole discretion, accelerate the time at which any Non-statutory Stock Option may be exercised in whole or in part. 4 (iii) Termination of Service. Upon the termination of a Participant's service for any reason other than Disability or death, the Participant's Non-statutory Stock Options shall expire upon termination, except Non-Statutory Stock Options granted to Consultants may continue for such additional period (up to the original term) as is determined by the Board at the Date of Grant. In the event of the death or Disability of any Employee, all Non-statutory Stock Options held by such Participant, whether or not vested at such time, shall be exercisable by the Participant or the legal representatives or beneficiaries of the Participant for one year or such longer period as determined by the Board following the date of the Participant's death or cessation of service due to Disability, provided that in no event shall the period extend beyond the expiration of the Non-statutory Stock Option term. 8. INCENTIVE STOCK OPTIONS. 8.1 Grant of Incentive Stock Options. The Board may, from time to time, grant Incentive Stock Options to Employees. Incentive Stock Options granted pursuant to the Plan shall be subject to the following terms and conditions: (a) Price. The purchase price per share of Common Stock deliverable upon the exercise of each Incentive Stock Option shall be not less than 100% of the Fair Market Value of the Company's Common Stock on the Date of Grant. However, if an Employee owns Common Stock possessing more than 10% of the total combined voting power of all classes of Common Stock of the Company (or under Section 425(d) of the Code is deemed to own Common Stock representing more than 10% of the total combined voting power of all such classes of Common Stock), the purchase price per share of Common Stock deliverable upon the exercise of each Incentive Stock Option shall not be less than 110% of the Fair Market Value of the Company's Common Stock on the Date of Grant. Shares may be purchased only upon payment of the full purchase price. Payment of the purchase price may be made, in whole or in part, through the surrender of shares of the Common Stock of the Company at the Fair Market Value of such shares on the date of surrender determined in the manner described in Section 2(i). (b) Amounts of Options. Incentive Stock Options may be granted to any Employee in such amounts as determined by the Board. In the case of an option intended to qualify as an Incentive Stock Option, the aggregate Fair Market Value (determined as of the time the option is granted) of the Common Stock with respect to which Incentive Stock Options granted are exercisable for the first time by the Employee during any calendar year (under all plans of the Employee's employer corporation and its parent and subsidiary corporations) shall not exceed $100,000. The provisions of this Section 8.1(b) shall be construed and applied in accordance with Section 422(d) of the Code and the regulations, if any, promulgated thereunder. To the extent an Award under this Section 8.1 exceeds this $100,000 limit, the portion of the Award in excess of such limit shall be deemed a Non-statutory Stock Option. (c) Terms of Options. The term during which each Incentive Stock Option may be exercised shall be determined by the Board at the Date of Grant, but in no event shall an Incentive Stock Option be exercisable in whole or in part more than 10 years from the Date of Grant. If at the 5 time an Incentive Stock Option is granted to an Employee, the Employee owns Common Stock representing more than 10% of the total combined voting power of the Company (or, under Section 425(d) of the Code, is deemed to own Common Stock representing more than 10% of the total combined voting power of all such classes of Common Stock) the Incentive Stock Option granted to such Employee shall not be exercisable after the expiration of five years from the Date of Grant. No Incentive Stock Option granted under this Plan is transferable except by will or the laws of descent and distribution and is exercisable in his or her lifetime only by the Employee to whom it is granted. The Board shall determine the date on which each Incentive Stock Option shall become exercisable and may provide that an Incentive Stock Option shall become exercisable in installments. The shares comprising each installment may be purchased in whole or in part at any time after such installment becomes purchasable, provided that the amount able to be first exercised in a given year is consistent with the terms of Section 422 of the Code. The Board may, in its sole discretion, accelerate the time at which any Incentive Stock Option may be exercised in whole or in part, provided that it is consistent with the terms of Section 422 of the Code. (d) Termination of Employment. Upon the termination of an Employee's service for any reason other than Disability or death, the Incentive Stock Options shall expire upon termination. In the event of death or Disability of any Employee, all Incentive Stock Options held by such Participant, whether or not vested at such time, shall be exercisable by the Participant or the Participant's legal representatives or beneficiaries for one year following the date of the Participant's death or cessation of employment due to Disability. In no event shall the exercise period extend beyond the expiration of the Incentive Stock Option term. (e) Compliance with Code. The options granted under this Section 8 of the Plan are intended to qualify as incentive stock options within the meaning of Section 422 of the Code, but the Company makes no warranty as to the qualification of any option as an incentive stock option within the meaning of Section 422 of the Code or the tax consequences associated with any such qualification or non-qualification. 9. SURRENDER OPTION. In the event of a Participant's termination of service as a result of death, Disability or retirement, the Participant (or the Participant's Personal representative(s), heir(s), or devisee(s)) may, in a form acceptable to the Board make application to surrender all or part of options held by such Participant in exchange for a cash payment from the Company of an amount equal to the difference between the Fair Market Value of the Common Stock on the date of termination and the exercise price per share of the option on the Date of Grant. Whether the Board accepts such application or determines to make payment, in whole or part, is within its absolute and sole discretion, it being expressly understood that the Board is under no obligation to any Participant whatsoever to make such payments. In the event that the Board accepts such application and the 6 Company determines to make payment, such payment shall be in lieu of the exercise of the underlying option and such option shall cease to be exercisable. 10. RIGHTS OF A SHAREHOLDER; NON-TRANSFERABILITY. No Participant shall have any rights as a shareholder with respect to any shares covered by a Non-statutory and/or Incentive Stock Option until the date of issuance of a stock certificate for such shares. Nothing in this Plan or in any Award granted confers on any person any right to continue in the employ of the Company or its Affiliates or to continue to perform services for the Company or its Affiliates or interferes in any way with the right of the Company or its Affiliates to terminate a Participant's services as an officer, other Employee or Consultant at any time. No Award under the Plan shall be transferable by the Participant other than by will or the laws of descent and distribution. Each option granted hereunder may be only exercised during the Participant's lifetime by the Participant or by a guardian or legal representative. 11. AGREEMENT WITH GRANTEES. Each Award of Options will be evidenced by a written agreement, executed by the Participant and the Company or its Affiliates which describes the conditions for receiving the Awards including the date of Award, the purchase price if any, applicable periods, and any other terms and conditions as may be required by applicable securities law. 12. DESIGNATION OF BENEFICIARY. A Participant may, with the consent of the Board, designate a person or persons to receive, in the event of death, any stock option to which the Participant would then be entitled. Such designation will be made upon forms supplied by and delivered to the Company and may be revoked in writing. If a Participant fails effectively to designate a beneficiary, then the Participant's estate will be deemed to be the beneficiary. 13. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in the outstanding shares of Common Stock of the Company by reason of any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such outstanding shares without receipt or payment of consideration by the Company, the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant, including any or all of the following: (a) adjustments in the aggregate number or kind of shares of Common Stock which may be awarded under the Plan; (b) adjustments in the aggregate number or kind of shares of Common Stock covered by Awards already made under the Plan; and 7 (c) adjustments in the purchase price of outstanding Incentive and/or Non-statutory Stock Options. No such adjustments may, however, materially change the value of benefits available to a Participant under a previously granted Award. Nothing herein shall be construed to require any adjustment in the event the Company pays cash dividends on the Common Stock. 14. WITHHOLDING. There may be deducted from each distribution of cash and/or Common Stock under the Plan the amount of tax required by any governmental authority to be withheld. 15. SHAREHOLDERS AGREEMENT All Common Stock issued pursuant to this Plan shall be subject to the Shareholders Agreement which now exists or may be hereafter entered into with respect to Company Stock. Prior to issuance of any Common Stock pursuant to this Plan, the Participant shall execute such documents as are necessary in the opinion of counsel for the Company to make the Participant subject to such Shareholders Agreement with respect to such Common Stock. 16. AMENDMENT OF THE PLAN. The Board may at any time, and from time to time, modify or amend the Plan in any respect. No such termination, modification or amendment may affect the rights of a Participant under an outstanding Award. 17. EFFECTIVE DATE OF PLAN. The Plan was effective upon adoption by the Board in 1995. The Plan as amended and restated shall become effective as of December 1, 1997. 18. TERMINATION OF THE PLAN. The right to grant Awards under the Plan will terminate upon the earlier of ten (10) years after the effective date of the Plan or the issuance of Common Stock or the exercise of options equivalent to the maximum number of shares reserved under the Plan as set forth in Section 5. The Board of Directors has the right to suspend or terminate the Plan at any time. No termination shall, without the consent of a Participant, adversely affect such individual's rights under a previously granted Award. 19. APPLICABLE LAW. 8 The Plan will be administered in accordance with the laws of the State of Illinois to the extent not preempted by federal law as now or hereafter in effect. - --------------------------- ------------------------------ Date Adopted (Signature) Title ------------------------------ Secretary 9 TRiMARK TECHNOLOGIES, INC. 1995 EMPLOYEES AND CONSULTANTS STOCK OPTION PLAN STOCK OPTION AGREEMENT FOR EMPLOYEES THIS AGREEMENT effective as of __________________ (hereinafter referred to as the "Grant Date") by and between TRiMARK Technologies, Inc. (hereinafter referred to as the "Company") and __________________________ (hereinafter referred to as the "Optionee"); PREMISES: The Company has adopted the TRiMARK Technologies, Inc. 1995 Employees and Consultants Stock Option Plan (hereinafter referred to as the "Plan") to permit options to purchase shares of the Company's common stock (hereinafter referred to as "Stock"), to be granted to certain Employees and Consultants of the Company and its Affiliates; and The Optionee is an Employee of the Company or an Affiliate and such corporation wishes to retain Optionee in such capacity by providing Optionee a means to acquire and/or increase his or her proprietary interest in the Company. AGREEMENT NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: l. Grant of Options. Subject to the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof, and this Agreement, the Company grants to the Optionee the options to purchase from the Company all or any part of an aggregate number of ________ shares of Stock (hereinafter such shares of Stock are referred to as the "Optioned Shares" and the options to purchase the Optioned Shares are referred to as the "Options"). Options to purchase _______ shares shall be Incentive Stock Options. Options to purchase _________ shares shall be Nonstatutory Stock Options. 2. Option Exercise Price. The price to be paid for the Optioned Shares shall be _______________ ($____) per share. The Option exercise price with respect to Incentive Stock Options shall not be less than 100% of the fair market value of the Optioned Shares on the grant date. 3. Vesting. The Optionee may only exercise Options to the extent such Options are vested at the time the Options are exercised. The schedule for vesting of Options is as follows: Percentage of Granted Options Date which are Vested ---- ----------------------------- 10 4. Minimum Exercise Amount. The minimum number of Options which may be exercised at one time shall be 100 or, if less are outstanding, the remaining vested Options. 5. Expiration of Options. None of the Optioned Shares may be purchased after _________________ (which date shall not be more than 10 years from the Grant Date). 6. Exercise of Options. An Option may be exercised only by written notice, delivered or mailed by postpaid, registered or certified mail addressed to the President and Chief Executive Officer of the Company specifying the number of Optioned Shares being purchased and, if applicable, whether the Options exercised are Incentive Stock Options or Nonstatutory Stock Options. Such notice shall be accompanied by payment in cash or its equivalent of the entire purchase price of the Optioned Shares being purchased, by tendering previously acquired shares of Stock having a fair market value equal to the entire purchase price of the Optioned Shares being purchased, or by any combination of cash and Stock in which the cash or its equivalent paid and the fair market value of the Stock tendered is equal to the entire purchase price of the Optioned Shares being purchased. Shares of Stock tendered shall be duly endorsed in blank or accompanied by stock powers duly endorsed in blank. Upon receipt of the payment of the entire purchase price of the Optioned Shares so purchased, certificates for such Optioned Shares shall be issued to the Optionee. The Optioned Shares so purchased shall be fully paid and nonassessable. Such Optioned Shares shall bear a legend restricting their transferability in substantially the following form: "Transfer of the securities evidenced by this certificate is not valid except to the extent that such transfer has complied with the provisions regarding transfer contained in a Shareholder Agreement, dated as of May 14, 1996, as may be amended from time to time. A copy of the Shareholder Agreement, which imposes various restrictions upon the holder of this certificate, is available to interested parties for inspection at the offices of the Company." "The securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state, but have been issued in reliance upon exemptions therefrom. The securities may not be offered, sold, pledged or otherwise transferred without registration under the Act or the opinion of counsel satisfactory to the corporation that an exemption from registration is available or that such transfer may otherwise lawfully be made." 7. Surrender of Options. A Participant who terminates employment as a result of death, Disability or normal retirement may make application to surrender all or part of the Options held by such Participant in exchange for a cash payment. Acceptance of such application by the Board is within the Board's absolute and sole discretion. 11 8. Termination of Optionee. (a) If the Optionee ceases to be an employee of the Company or an Affiliate for any reason other than Disability or death, the Option shall expire on termination. (b) If the Optionee ceases to be an employee of the Company or an Affiliate for reasons of Disability or death, the Options may be exercised, to the extent otherwise exercisable at the date of Optionee's Disability or death, in whole or in part, within one year after the date of Disability or death and not thereafter, by the person or persons entitled to do so under the Optionee's will or, if the Optionee shall fail to make a testamentary disposition of the Options or shall die intestate, by the Optionee's legal representative or representatives. (c) In no event shall the exercise period for a terminated Optionee extend beyond the expiration of the Option's term. 9. Optionee's Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company and shall not have any shareholder privileges with respect to any Optioned Shares except to the extent that the Option shall have been exercised with respect thereto and a stock certificate issued therefor. All rights as a holder of the stock shall be subject to the Company's Shareholders Agreement. Optionee shall execute such documents as are reasonably necessary in the opinion of the Company's counsel to make the Optionee subject to the Shareholders Agreement with respect to the Optioned Shares. 10. Withholding. The Company may require as a condition precedent to the issuance or transfer of any shares of Stock upon exercise of any Options that the Optionee make such arrangements as the Board or its designee may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with the exercise of the Options. If the amount so requested is not paid, the Company may refuse to issue or transfer shares of Stock upon exercise of the Options. 11. Nontransferability of Options. The Options herein granted shall not be transferable by the Optionee otherwise than by will or the laws of descent and distribution, and may be exercised during the life of the Optionee only by the Optionee. 12. Dilution and Other Adjustments. The existence of the Options herein granted shall not affect in any way the right or power of the Company or its shareholders to make or authorize any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such shares without receipt or payment of consideration by the Company; provided, however, that the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant as provided in the Plan. Nothing herein shall be construed to require an adjustment in the event the Company pays cash dividends. 13. Definitions. The definition of any term not defined in this Agreement shall be defined as such term is defined in the Plan. 12 14. Interpretation. As a condition of the granting of the Options, the Optionee agrees for himself or herself and Optionee's legal representatives, that any dispute or disagreement which may arise under or as a result of or pursuant to this Agreement or the Plan shall be determined in good faith by the Board in its sole discretion, and any such interpretation by the Board of the terms of this Agreement or the Plan shall be final, binding, and conclusive. 15. Professional Advice. The acceptance and exercise of the Options and the sale of Stock issued pursuant to exercise of the Options may have consequences under federal and state tax and securities laws which may vary depending on the individual circumstances of the Optionee. Accordingly, the Optionee acknowledges that the Optionee has been advised to consult his or her personal legal and tax advisor in connection with this Agreement and his or her dealing with respect to the Options or the Stock and has received no advice from the Company in connection therewith. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officers, and the Optionee has hereunto affixed his or her hand and seal, the day and year first above written. TRiMARK TECHNOLOGIES, INC. __________________ By: Optionee President and Chief Executive Officer Attest: 13 TRiMARK TECHNOLOGIES, INC. 1995 EMPLOYEES AND CONSULTANTS STOCK OPTION PLAN STOCK OPTION AGREEMENT FOR CONSULTANTS THIS AGREEMENT effective as of __________________ (hereinafter referred to as the "Grant Date") by and between TRiMARK Technologies, Inc. (hereinafter referred to as the "Company") and __________________________ (hereinafter referred to as the "Optionee"); PREMISES: The Company has adopted the TRiMARK Technologies, Inc. 1995 Employees and Consultants Stock Option Plan (hereinafter referred to as the "Plan") to permit options to purchase shares of the Company's common stock (hereinafter referred to as "Stock"), to be granted to certain Employees and Consultants of the Company and its Affiliates; and The Optionee is a Consultant of the Company or an Affiliate and such corporation wishes to retain Optionee in such capacity by providing Optionee a means to acquire and/or increase his or her proprietary interest in the Company. AGREEMENT NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: l. Grant of Options. Subject to the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof, and this Agreement, the Company grants to the Optionee the options to purchase from the Company all or any part of an aggregate number of ________ shares of Stock (hereinafter such shares of Stock are referred to as the "Optioned Shares" and the options to purchase the Optioned Shares are referred to as the "Options"). Options to purchase all shares shall be Non-Statutory Stock Options. 2. Option Exercise Price. The price to be paid for the Optioned Shares shall be _______________ ($____) per share. 3. Vesting. The Optionee may only exercise Options to the extent such Options are vested at the time the Options are exercised. The schedule for vesting of Options is as follows: Percentage of Granted Options Date which are Vested ---- ----------------------------- 14 Notwithstanding the foregoing, options shall not vest unless the work for which the Consultant has been engaged is being diligently pursued to the reasonable satisfaction of the Company or has been completed and accepted by the Company. 4. Minimum Exercise Amount. The minimum number of Options which may be exercised at one time shall be 100 or, if less are outstanding, the remaining vested Options. 5. Expiration of Options. None of the Optioned Shares may be purchased after _________________ (which date shall not be more than 10 years from the Grant Date). 6. Exercise of Options. An Option may be exercised only by written notice, delivered or mailed by postpaid, registered or certified mail addressed to the President and Chief Executive Officer of the Company specifying the number of Optioned Shares being purchased. Such notice shall be accompanied by payment in cash or its equivalent of the entire purchase price of the Optioned Shares being purchased, by tendering previously acquired shares of Stock having a fair market value equal to the entire purchase price of the Optioned Shares being purchased, or by any combination of cash and Stock in which the cash or its equivalent paid and the fair market value of the Stock tendered is equal to the entire purchase price of the Optioned Shares being purchased. Shares of Stock tendered shall be duly endorsed in blank or accompanied by stock powers duly endorsed in blank. Upon receipt of the payment of the entire purchase price of the Optioned Shares so purchased, certificates for such Optioned Shares shall be issued to the Optionee. The Optioned Shares so purchased shall be fully paid and nonassessable. Such Optioned Shares shall bear a legend restricting their transferability in substantially the following form: "Transfer of the securities evidenced by this certificate is not valid except to the extent that such transfer has complied with the provisions regarding transfer contained in a Shareholder Agreement, dated as of May 14, 1996, as may be amended from time to time. A copy of the Shareholder Agreement, which imposes various restrictions upon the holder of this certificate, is available to interested parties for inspection at the offices of the Company." "The securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state, but have been issued in reliance upon exemptions therefrom. The securities may not be offered, sold, pledged or otherwise transferred without registration under the Act or the opinion of counsel satisfactory to the corporation that an exemption from registration is available or that such transfer may otherwise lawfully be made." 7. Termination of Optionee. (a) If the Optionee ceases to be a Consultant of the Company or an Affiliate for any reason other than Disability of death, the Option shall expire: (Check one) 15 ( )(i) on termination. ( )(ii) a period of ___________ following completion of the work for which the Consultant was engaged and acceptance thereof by the Company. ( )(iii) on ________________ (b) If the Optionee ceases to be a Consultant of the Company or an Affiliate for reasons of Disability or death, the Options may be exercised, to the extent otherwise exercisable at the date of Optionee's Disability or death, in whole or in part, within one year after the date of Disability or death and not thereafter, by the person or persons entitled to do so under the Optionee's will or, if the Optionee shall fail to make a testamentary disposition of the Options or shall die intestate, by the Optionee's legal representative or representatives. (c) In no event shall the exercise period for a terminated Optionee extend beyond the expiration of the Option's term. 8. Surrender of Options. A Consultant who terminates work for which the Consultant was engaged as a result of death, Disability or normal retirement may make application to surrender all or part of the Options held by such Consultant in exchange for a cash payment. Acceptance of such application by the Board is within the Board's absolute and sole discretion. 9. Optionee's Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company and shall not have any shareholder privileges with respect to any Optioned Shares except to the extent that the Option shall have been exercised with respect thereto and a stock certificate issued therefor. All rights as a holder of the stock shall be subject to the Company's Shareholders Agreement. Optionee shall execute such documents as are reasonably necessary in the opinion of the Company's counsel to make the Optionee subject to the Shareholders Agreement with respect to the Optioned Shares. 10. Withholding. The Company may require as a condition precedent to the issuance or transfer of any shares of Stock upon exercise of any Options that the Optionee make such arrangements as the Board or its designee may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with the exercise of the Options. If the amount so requested is not paid, the Company may refuse to issue or transfer shares of Stock upon exercise of the Options. 11. Nontransferability of Options. The Options herein granted shall not be transferable by the Optionee otherwise than by will or the laws of descent and distribution, and may be exercised during the life of the Optionee only by the Optionee. 12. Dilution and Other Adjustments. The existence of the Options herein granted shall not affect in any way the right or power of the Company or its shareholders to make or authorize 16 any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such shares without receipt or payment of consideration by the Company; provided, however, that the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant as provided in the Plan. Nothing herein shall be construed to require an adjustment in the event the Company pays cash dividends. 13. Definitions. The definition of any term not defined in this Agreement shall be defined as such term is defined in the Plan. 14. Interpretation. As a condition of the granting of the Options, the Optionee agrees for himself or herself and Optionee's legal representatives, that any dispute or disagreement which may arise under or as a result of or pursuant to this Agreement or the Plan shall be determined in good faith by the Board in its sole discretion, and any interpretation by the Board of the terms of this Agreement or the Plan shall be final, binding, and conclusive. 15. Professional Advice. The acceptance and exercise of the Options and the sale of Stock issued pursuant to exercise of the Options may have consequences under federal and state tax and securities laws which may vary depending on the individual circumstances of the Optionee. Accordingly, the Optionee acknowledges that the Optionee has been advised to consult his or her personal legal and tax advisor in connection with this Agreement and his or her dealing with respect to the Options or the Stock and has received no advice from the Company in connection therewith. 17 IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officers, and the Optionee has hereunto affixed his or her hand and seal, the day and year first above written. TRiMARK TECHNOLOGIES, INC. _______________________ By: Optionee President and Chief Executive Officer Attest: ______________________ EX-99.4 7 1993 STOCK OPTION PLAN 1 EXHIBIT 99.4 TRIMARK TECHNOLOGIES, INC. 1993 STOCK OPTION PLAN (AS AMENDED ON 9/1/95 AND 5/22/98) 1. PURPOSE. This Stock Option Plan (the "Plan") is intended to encourage ownership of stock of TriMark Technologies, Inc. (the "Company") by employees of the Company and its subsidiaries, and to provide additional long term incentive for them to continue their association with the Company and to promote the success of the business by using their maximum efforts in its behalf. The term "Subsidiary" means any corporation 50% or more of the voting shares of which are owned, directly or indirectly, by the Company. 2. STOCK SUBJECT TO THE PLAN. An aggregate of 1,000,000 shares of the Common Stock (no par value per share) of the Company will be reserved for use upon the exercise of Options to be granted from time to time under the Plan. These shares may be either authorized but unissued shares, or issued shares which shall have been reacquired by the Company. It is intended that Options granted pursuant to the Plan shall be "Incentive Stock Options", as defined in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"). 3. ADMINISTRATION. The Plan shall be administered by the Company's Board of Directors (the "Board"). The Board shall have authority in its discretion, but subject to the express provisions of the Plan to: (a) determine the employees of the Company and its subsidiaries to whom Options shall be granted; (b) determine the number of shares to be covered by each Option; (c) determine the time or times at which Options shall be granted or may be forfeited; (d) interpret the Plan; (e) prescribe, amend, and rescind rules and regulations relating to the Plan; (f) hold its meetings at times and places which it deems to be appropriate; and (g) make all other determinations deemed necessary or advisable for the administration of the Plan. All actions of the Board with respect to the Plan shall be taken by a majority of its members. Any action may be taken by a written instrument signed by a majority of the members, and action so taken shall be fully effective as if it had been taken by a vote of a majority of the members at a meeting duly called and held. The Board shall keep minutes of its meetings with respect to the Plan, and shall make such rules and regulations for the conduct of its business as it shall deem advisable. The Board shall administer the Plan in order to preserve the 2 characterization, as such, of Options which are granted as Incentive Stock Options pursuant to the Plan. The Board may, from time to time, appoint members in substitution for or in addition to members previously appointed and may fill vacancies, however caused, in the Board. The Board shall select one of the members as its chairman. 4. ELIGIBILITY. An Option may be granted to any employee of the Company or a subsidiary, provided that no Option may be granted hereunder to an individual who immediately after such Option is granted owns, within the meaning of Section 422A (b) (6) of the Code, shares possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or its subsidiaries. 5. OPTION PRICES. The Option price of each share of Common Stock offered under this Plan shall be determined by the Board but in no event shall be less than the par value of the Company's Common Stock, and in the case of Incentive Stock Options shall not be less than 100% of the fair market value of the Common Stock at the time the Option is granted. 6. GRANTING OF OPTIONS. Whenever the Board shall designate an employee to receive either an Incentive Stock Option pursuant to this Plan, the CEO, President, or Executive Vice President of the Company hall notify such employee in writing with respect thereto, clearly identifying Options as being "Incentive" Stock Options, giving the number of shares subject to the Option, the price per share, the dates on and after which such Option may be exercised, and the date on which such Options shall expire, and shall attach a copy o this Plan to such Notice. Such Notice shall also advise the optionee of any requirement to hold Option shares for a period of time in order to receive preferential tax treatment, and such Notice shall furthermore require the optionee to give the Company prompt written notice of disposition made prior to the end of such holding period requirement. The date of the Board's designation shall be the date such Option is granted. Such Notice may be accompanied by or be in the form of an agreement to be signed by the Company and the optionee, containing such terms and provisions as the Board shall prescribe. 7. TERM OF OPTIONS. The term of each Option shall be for such period as the Board shall determine, but not more than ten years from the date of granting thereof, and shall be subject to earlier termination as hereinafter provided. 8. EXERCISE OF OPTIONS. Subject to specific terms thereof, an Option may be exercised, at any time or from time to time, as to any part of or all of the shares which shall be covered thereby; the purchase price of the shares as to which an Option shall be exercised shall be paid in full at the time of exercise. Payment of the purchase price shall be made in cash or in such other form as the Board may approve, including shares of Company Common Stock valued at fair market value on the date of exercise of the Option or a combination of cash and shares. The holder of an Option shall not have any 3 of the rights of a stockholder with respect to the shares covered by this Option, except to the extent that one or more certificates for such shares shall be delivered to him upon the due exercise of the Option. Subject to approval by the Board, a person by whom an Option is exercisable under this Plan may elect in writing to forfeit his Option with respect to any number of unpurchased shares under such Option, in which case he shall receive an amount equal to the excess of the fair market value of such shares on the date such written shares in the form of: (a) cash; or (b) shares of the common Stock of the Company valued at fair market value on the date his written election is approved by the Board; (c) a combination of (a) and (b) above with respect to those shares as to which he forfeits his Option. For purposes of this paragraph, "fair market value" shall have the same meaning as used for purposes of paragraph 5 above. Any shares as to which an Option is forfeited shall not be available for granting further Options under this Plan. No incentive Stock Option granted under the Plan shall be exercisable while there is outstanding any Incentive Stock Option which was granted before the granting of such Option to the optionee to purchase stock in his employer corporation or in a corporation which (at the time of granting such Option) is a parent or subsidiary corporation of the employer corporation, or in a predecessor corporation of any of such corporations. For the purposes of the preceding sentence, any Incentive Stock Option shall be treated as outstanding until such Option is exercised in full or expires by reason of lapse of time or by forfeiture. 9. NON-TRANSFERABILITY OF OPTIONS. An Option shall not be transferable otherwise than by will or the laws of descent and distribution, and an Option may be exercised, during the lifetime of an employee, only by the employee. 10. MAXIMUM ALLOTMENT OF OPTIONS. The aggregate fair market value (determined as of the date the Option is granted) of the shares for which any individual may be granted Incentive Stock Options in any calendar year under the Plan, and Incentive Stock Options under all other Stock Option Plans of the Company or any subsidiary of the Company shall not exceed $100,00 plus any unused limit carryover (as defined in Section 422A c (4) of the Code) applicable to any such year. 11. TERMINATION OF EMPLOYMENT. An Option granted to an employee shall terminate upon the termination, for any reason, of the person's employment with the Company or a subsidiary, and no shares may thereafter be purchased under such Option except in the case of: a. Retirement. Upon retirement from the employ of the Company or a subsidiary pursuant to the Company's retirement program, the employee may purchase, within three years following such retirement, all or a part of the shares which the employee was entitled to purchase immediately prior to such retirement. In order to receive preferential tax treatment of an Incentive Stock Option an employee must exercise such Option prior to, or within three months after, his or her retirement. 4 b. Total and Permanent Disability. An employee may purchase, within one year after termination due to total and permanent disability, all or part of the shares which the employee was entitled to purchase immediately prior to such termination. c. Death. Upon the death of an employee or upon the death of a retired employee within three years following retirement from the employ of the Company or a subsidiary, all or a part of the shares which such employee was entitled to purchase immediately prior to death may be purchased within one year after the death by any person or persons (including the legal representatives of such employee's estate) to whom the rights of the deceased employee under the Option shall pass by will or the laws of descent and distribution. In no event, however, may any Option be exercised after ten (10) years from the date it was granted or after expiration of the term of the Option specifically provided for at the time of its grant. 12. OTHER CONSIDERATIONS. In order to receive preferential tax treatment of an Incentive Stock Option, an employee must not dispose of stock acquired by exercise of such Option within two years from the date of its grant and must hold the stock itself for at least one year. Nothing in the Plan or in any Option granted pursuant to the Plan shall confer upon any employee any right to continue in the employ of the Company or any of its subsidiaries or interfere with the right of the Company or of the subsidiary by which he is employed to terminate his employment at any time. 13. SECURITIES REGISTRATION. In the event that the Company shall deem it necessary to register any stock, with respect to which an Option granted hereunder has been exercised, under the Securities Act of 1933, or other applicable federal or state law, or to qualify any such shares for exemption from registration under any such law, or under any regulation issued under any such law, the company shall take such action at its own expense before delivery of such stock. If such stock shall be listed on a national stock exchange at the time an Option granted hereunder is exercised and registration of such stock shall be required under the Securities Exchange Act of 1934 and listing thereof shall be required on such stock exchange, the Company shall take such action at its own expense. 14. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Appropriate adjustments of the number of shares reserved for use under the Plan and in the number of shares and price per share covered by outstanding Options granted under the Plan shall be made to give effect to any stock splits, stock dividends, or other relevant changes in capitalization occurring on or after the effective date of the Plan. The decisions of the Board of Directors of the company as to the amount and timing of any such adjustments shall be conclusive. If the Company is reorganized, merged or consolidated with another corporation, each optionee shall be entitled to receive options 5 covering shares of such reorganized, merged or consolidated stock, at an equivalent price, and subject to the same conditions that governed the options held by the optionee in the Company immediately prior to the reorganization, merger or consolidation. 15. APPROVAL, TERMINATION, AND AMENDMENT OF THE PLAN. The Plan will not go into effect unless approved by the affirmative vote of the holders of at least a majority of the Company's outstanding Common Stock. When so approved, the Plan shall become effective as of March 16, 1993. The Plan shall terminate on December 31, 1998, and no Option shall be granted under the Plan after that date. The Plan may be terminated at any time or may, from time to time, be modified or amended by the vote of holders of a majority of the outstanding voting stock of the Company or their proxies. The Board of Directors may, at any time and from time to time, modify or amend the Plan in such respects as it shall deem advisable to conform to any change in the law or regulations pursuant to the law, or in any other respect which shall not change: (a) the maximum number of shares for which Options may be granted under the Plan; or (b) the Option prices; or (c) the periods during which Options may be granted or exercised; or (d) the provisions relating to the determination of employees to whom Options shall be granted and the number of shares covered by such Options; or (e) the provisions relating to adjustments to be made upon changes in capitalization. The termination or modification or amendment of the Plan shall not, without the consent of an employee, affect his rights under an Option thereto fore granted to him. 6 TRIMARK TECHNOLOGIES, INC. 1993 STOCK OPTION PLAN STOCK OPTION AGREEMENT This agreement effective as of __________________, 1998 (hereinafter referred to as the "Grant Date") by and between TriMark Technologies, Inc., (hereinafter referred to as the "Company") and _________________ (hereinafter referred to as the "Optionee"); PREMISES The Company has adopted the TriMark Technologies, Inc. 1993 Stock Option Plan (hereinafter referred to as the "Plan") to permit options to purchase shares of the Company's common stock (hereinafter referred to as "Stock"), to be granted to certain key Employees and Consultants of the Company and its Affiliates; and The Optionee is an Employee of the Company or an Affiliate and such corporation wishes to retain Optionee in such a capacity by providing Optionee a means to acquire and/or increase his or her proprietary interest in the Company. AGREEMENT Now, Therefore, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Grant of Options. Subject to the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof, and this Agreement, the Company grants to the Optionee the options to purchase from the Company all or any part of an aggregate number of _______ shares of Stock (hereinafter such shares of Stock are referred to as the "Optioned Shares" and the options to purchase the Optioned Shares are referred to as the "Options"). Options to purchase ________ shares shall be Incentive Stock Options. 2. Option Exercise Price. The price to be paid for the Optioned Shares shall be _________ ($._____) per share. The Option exercise price with respect to Incentive Stock Options shall not be less than 100% of the fair market value of the Optioned Shares on the grant date. 3. Vesting. The Optionee may only exercise Options to the extent such Options are vested at the time the Options are exercised. The schedule for vesting of Options is as follows: Percentage of Granted Options Date which are Vested ---- ----------------------------- 7 4. Minimum Exercise Amount. The minimum number of Options which may be exercised at one time shall be 100 or, if less are outstanding, the remaining vested Options. 5. Expiration of Options. None of the Optioned Shares may be purchased after ______________ (which date shall not be more than 10 years from the Grant Date). 6. Exercise of Options. An Option may be exercised only by written notice, delivered or mailed by postpaid, registered or certified mail addressed to the President and Chief Executive Officer of the Company specifying the number of Optioned Shares being purchased and, if applicable, whether the Options exercised are Incentive Stock Options or Nonstatutory Stock Options. Such notice shall be accompanied by payment in cash or its equivalent of the entire purchase price of the Optioned Shares being purchased by tendering previously acquired shares of Stock having a fair market value equal to the entire purchase price of the Optioned Shares being purchased, or any combination of cash and Stock in which the cash or its equivalent paid and the fair market value of the Stock tendered is equal to the entire purchase price of the Optioned Shares being purchased. Shares of Stock tendered shall be duly endorsed in blank or accompanied by stock powers duly endorsed in blank. Upon receipt of the payment of the entire purchase price of the Optioned Shares so purchased, certificates for such Optioned Shares shall be issued to the Optionee. The Optioned Shares so purchased shall be fully paid and nonassessable. Such Optioned Shares shall bear a legend restricting their transferability in substantially the following form: "Transfer of the securities evidenced by this certificate is not valid except to the extent that such transfer has complied with the provisions regarding transfer contained in a Shareholder Agreement, dated as of May 14, 1996, as may be amended from time to time. A copy of the Shareholder Agreement, which imposes various restrictions upon the holder of this certificate, is available to interested parties for inspection at the offices of the Company." "The securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state, but have been issued in reliance upon exemptions therefrom. The securities may not be offered, sold, pledged or otherwise transferred without registration under the Act or the opinion of counsel satisfactory to the corporation that an exemption from registration is available or that such transfer may otherwise lawfully be made." 7. Surrender of Options. A Participant who terminates employment as a result of death, Disability or normal retirement may make application to surrender all or part of the Options held by such Participant in exchange for a cash payment. Acceptance of such application by the Board is within the Board's absolute and sole discretion. 8. Termination of Optionee. (a) If the Optionee ceases to be an employee of the Company or an Affiliate for any reason other than Disability or Death, the Option shall expire on termination. 8 (b) If the Optionee ceases to be an employee of the Company or an Affiliate for reasons of Disability or death, the Options may be exercised, to the extent otherwise exercisable at the date of Optionee's Disability or death, in whole or in part, within one year after the date of Disability or death and not thereafter, by the person or persons entitled to do so under the Optionee's will or, if the Optionee shall fail to make a testamentary disposition of the Options or shall die intestate, by the Optionee's legal representative or representatives. (c) In no event shall the exercise period for a terminated Optionee extend beyond the expiration of the Option's term. 9. Optionee's Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company and shall not have any shareholder privileges with respect to any Optioned Shares except to the extent that the Option shall have been exercised with respect thereto and a stock certificate issued therefor. All rights as a holder of the stock shall be subject to the Company's Stockholders Agreement. Optionee shall execute such documents as are reasonably necessary in the opinion of the Company's counsel to make the Optionee subject to the Stockholder's Agreement with respect to the Optioned Shares. 10. Withholding. The Company may require as a condition precedent to the issuance or transfer of any shares of Stock upon exercise of any Options that the Optionee make such arrangements as the Board or its designee may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with the exercise of the Options. If the amount so requested is not paid, the Company may refuse to issue or transfer shares of Stock upon exercise of the Options. 11. Nontransferability of Options. The Options herein granted shall not be transferable by the Optionee otherwise than by will or the laws of descent and distribution, and may be exercised during the life of the Optionee only by the Optionee. 12. Dilution and Other Adjustments. The existence of the Options herein granted shall not affect in any way the right or power of the Company or its shareholders to make or authorize any stock dividend or split, recapitalization, merger, consolidation, spin-off, reorganization, combination or exchange of shares, or other similar corporate change, or other increase or decrease in such shares without receipt or payment of consideration by the Company; provided, however, that the Board will make such adjustments to previously granted Awards, to prevent dilution or enlargement of the rights of the Participant as provided in the Plan. Nothing herein shall be construed to require an adjustment in the event the Company pays cash dividends. 13. Definitions. The definition of any term not defined in this Agreement shall be defined as such term is defined in the Plan. 14. Interpretation. As a condition of the granting of the Options, the Optionee agrees for himself or herself and Optionee's legal representatives, that any dispute or disagreement which may arise under or as a result of or pursuant to this Agreement or the Plan shall be determined in good faith by the Board in its sole discretion, and any such interpretation by the Board of the terms of this Agreement or the Plan shall be final, binding, and conclusive. 9 15. Professional Advice. The acceptance and exercise of the Options and the sale of Stock issued pursuant to exercise of the Options may have consequences under federal and state tax and securities laws which may vary depending on the individual circumstances of the Optionee. Accordingly, the Optionee acknowledges that the Optionee has been advised to consult his or her personal legal and tax advisor in connection with this Agreement and his or her dealing with respect to the Options or the Stock and has received no advice from the Company in connection therewith. In witness whereof, the Company has caused this instrument to be executed by its duly authorized officers, and the Optionee has hereunto affixed his or her hand and seal, the day and year first above written. TriMark Technologies, Inc. ______________________________ By:_________________________________________ Optionee President and Chief Executive Officer Attest: ____________________________________________ -----END PRIVACY-ENHANCED MESSAGE-----