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Exhibit
10.02.1
3PARDATA,
INC.
1999 STOCK
PLAN
STOCK OPTION
AGREEMENT
Unless otherwise defined
herein, the terms defined in the 3PARdata, Inc. 1999 Stock
Plan (the “Plan”) shall have the same defined meanings
in this Option Agreement.
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NOTICE OF STOCK OPTION GRANT |
«Name_of_Optionee»
«Address_1»
«Address_2»
You have been granted an
option to purchase Common Stock of 3PARdata, Inc.
(the “Company”), subject to the terms and
conditions of the Plan and this Option Agreement, as
follows:
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Grant Number:
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«Grant_Number» |
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Date of Grant:
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«Grant_Date» |
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Vesting Commencement Date:
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«Vesting_Commencement_Date» |
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Exercise Price per Share:
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$0.01 |
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Total Number of Shares Granted:
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«Total_Shares_Granted» |
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Total Exercise Price:
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$«Total_Exercise_Price_» |
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Type of Option:
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X |
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Incentive
Stock Option |
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Nonstatutory Stock Option |
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Term/Expiration Date:
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March 21,
2013 |
Exercise and Vesting
Schedule :
This option may (i) be
exercised, in whole or in part, at such times as established under
the Company’s policies regarding exercise of options or as
otherwise permitted by the Company and (ii) may be exercised
prior to the full vesting of Option Shares, conditioned upon
Optionee’s entering into a Restricted Stock Purchase
Agreement with respect to any unvested Option Shares. The Shares
subject to this Option shall vest and/or be released from the
Company’s repurchase option, as set forth in the Restricted
Stock Purchase Agreement, according to the following
schedule:
25% of the Shares subject to
the Option shall vest twelve months after the Vesting Commencement
Date, and 2.083% of the Shares subject to the Option shall vest
each month thereafter, subject to Optionee’s continuing to be
a Service Provider on such dates.
Termination Period
:
This Option may be exercised,
to the extent it is then vested, for three months after you cease
to be a Service Provider. Upon your death or disability, this
Option may be exercised, to the extent it is then vested, for one
year after you cease to be Service Provider. In no event shall this
Option be exercised later than the Term/Expiration Date as provided
above.
1. Grant of Option .
The Plan Administrator of the Company hereby grants to the Optionee
named in the Notice of Stock Option Grant (the
“Optionee”), an option (the “Option”) to
purchase the number of Shares set forth in the Notice of Stock
Option Grant, at the exercise price per Share set forth in the
Notice of Stock Option Grant (the “Exercise Price”),
and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 14(c) of
the Plan, in the event of a conflict between the terms and
conditions of the Plan and this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice
of Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Code. Nevertheless, to the
extent that it exceeds the $100,000 rule of Code
Section 422(d), this Option shall be treated as a Nonstatutory
Stock Option (“NSO”).
2. Exercise of Option
. This Option shall be exercisable during its term in accordance
with the provisions of Section 9 of the Plan as
follows:
(a) Right to Exercise
. Subject to subsections 2(a)(ii) and 2(a)(iii) below, this Option
shall be exercisable cumulatively according to the vesting schedule
set forth in the Notice of Grant. Alternatively, at the election of
the Optionee, this option may be exercised in whole or in part at
any time during its Term as to Shares which have not yet vested.
For purposes of this Stock Option Agreement, Shares subject to the
Option shall vest based on continued employment of Optionee with
the Company. Vested Shares shall not be subject to the
Company’s repurchase right (as set forth in the Restricted
Stock Purchase Agreement, attached hereto as
Exhibit C-1 ).
(i) As a condition to
exercising this Option for unvested Shares, the Optionee shall
execute the Restricted Stock Purchase Agreement.
(ii) This Option may not be
exercised for a fraction of a Share.
(b) Method of Exercise
. This Option shall be exercisable by delivery of an exercise
notice in the form attached as Exhibit A (the “Exercise
Notice”) which shall state the election to exercise the
Option, the number of Shares with respect to which the Option is
being exercised, and such other representations and agreements as
may be required by the Company. The Exercise Notice shall be
accompanied by payment of the aggregate Exercise Price as to all
Exercised Shares. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice
accompanied by the aggregate Exercise Price.
-2-
No Shares shall be issued
pursuant to the exercise of an Option unless such issuance and such
exercise complies with Applicable Laws. Assuming such compliance,
for income tax purposes the Shares shall be considered transferred
to the Optionee on the date on which the Option is exercised with
respect to such Shares.
3. Optionee’s
Representations . In the event the Shares have not been
registered under the Securities Act of 1933, as amended, at the
time this Option is exercised, the Optionee shall, if required by
the Company, concurrently with the exercise of all or any portion
of this Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit
B.
4. Lock-Up Period .
Optionee hereby agrees that, if so requested by the Company or any
representative of the underwriters (the “Managing
Underwriter”) in connection with any registration of the
offering of any securities of the Company under the Securities Act,
Optionee shall not sell, pledge, margin, or otherwise transfer any
Shares or other securities of the Company during the 180-day period
(or such other period as may be requested in writing by the
Managing Underwriter and agreed to in writing by the Company) (the
“Market Standoff Period”) following the effective date
of a registration statement of the Company filed under the
Securities Act. Such restriction shall apply only to the first
registration statement of the Company to become effective under the
Securities Act that includes securities to be sold on behalf of the
Company to the public in an underwritten public offering under the
Securities Act. The Company may impose stop-transfer instructions
with respect to securities subject to the foregoing restrictions
until the end of such Market Standoff Period.
5. Method of Payment .
Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the
Optionee:
(a) cash, check or cash
equivalent;
(b) consideration received by
the Company under a formal cashless exercise program adopted by the
Company in connection with the Plan; or
(c) surrender of other Shares
which, (i) in the case of Shares acquired upon exercise of an
option, have been owned by the Optionee for more than six
(6) months on the date of surrender, and (ii) have a Fair
Market Value on the date of surrender equal to the aggregate
Exercise Price of the Exercised Shares.
6. Restrictions on
Exercise . This Option may not be exercised until such time as
the Plan has been approved by the stockholders of the Company, or
if the issuance of such Shares upon such exercise or the method of
payment of consideration for such shares would constitute a
violation of any Applicable Law.
7. Non-Transferability of
Option . This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by
Optionee. The terms of the Plan and this Option Agreement shall be
binding upon the executors, administrators, heirs, successors and
assigns of the Optionee.
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8. Term of Option .
This Option may be exercised only within the term set out in the
Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
9. Tax Consequences .
Set forth below is a brief summary as of the date of this Option of
some of the federal tax consequences of exercise of this Option and
disposition of the Shares. This summary is necessarily
incomplete, and the tax laws and regulations are subject to change.
The optionee should consult a tax advisor before exercising this
option or disposing of the shares .
(a) Exercise of ISO .
If this Option qualifies as an ISO, there will be no regular
federal income tax liability upon the exercise of the Option,
although the excess, if any, of the Fair Market Value of the Shares
on the date of exercise over the Exercise Price will be treated as
an adjustment to the alternative minimum tax for federal tax
purposes and may subject the Optionee to the alternative minimum
tax in the year of exercise.
(b) Exercise of ISO
Following Disability . If the Optionee ceases to be an Employee
as a result of a disability that is not a total and permanent
disability, as defined in Section 22(e)(3) of the Code, to the
extent permitted on the date of termination, the Optionee must
exercise an ISO within three months of such termination for the ISO
to be qualified as an ISO.
(c) Exercise of
Nonstatutory Stock Option . There may be a regular federal
income tax liability upon the exercise of a Nonstatutory Stock
Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to
the excess, if any, of the Fair Market Value of the Shares on the
date of exercise over the Exercise Price. If Optionee is an
Employee or a former Employee, the Company will be required to
withhold from Optionee’s compensation or collect from
Optionee and pay to the applicable taxing authorities an amount in
cash equal to a percentage of this compensation income at the time
of exercise, and may refuse to honor the exercise and refuse to
deliver Shares if such withholding amounts are not delivered at the
time of exercise.
(d) Disposition of
Shares . In the case of an NSO, if Shares are held for at least
one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes.
In the case of an ISO, if Shares transferred pursuant to the Option
are held for at least one year after exercise and at least two
years after the Date of Grant, any gain realized on disposition of
the Shares will also be treated as long-term capital gain for
federal income tax purposes. If Shares purchased under an ISO are
disposed of within one year after exercise or two years after the
Date of Grant, any gain realized on such disposition will be
treated as compensation income (taxable at ordinary income rates)
to the extent of the difference between the Exercise Price and the
lesser of (i) the Fair Market Value of the Shares on the date
of exercise, or (ii) the sale price of the Shares. Different
rules may apply if the Shares are subject to a substantial risk of
forfeiture (within the meaning of Section 83) at the time of
purchase. Any additional gain will be taxed as capital gain,
short-term depending on the period that the ISO Shares were
held.
(e) Notice of
Disqualifying Disposition of ISO Shares . If the Option granted
to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or
before the later of (i) the date two years after the Date of
Grant, or (ii) the
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date one year after the date of
exercise, the Optionee shall immediately notify the Company in
writing of such disposition. Optionee agrees that Optionee may be
subject to income tax withholding by the Company on the
compensation income recognized by the Optionee.
(f) Section 83(b)
Election for Unvested Shares Purchased Pursuant to Options .
With respect to the exercise of an Option for unvested Shares, an
election may be filed by the Optionee with the Internal Revenue
Service, within 30 days of the purchase of the Shares,
electing pursuant to Section 83(b) of the Code to be taxed
currently on any difference between the purchase price of the
Shares and their Fair Market Value on the date of purchase. In the
case of a Nonstatutory Stock Option, this will result in a
recognition of taxable income to the Optionee on the date of
exercise, measured by the excess, if any, of the fair market value
of the Shares, at the time the Option is exercised over the
purchase price for the Shares. Absent such an election, taxable
income will be measured and recognized by Optionee at the time or
times on which the Company’s Repurchase Option lapses. In the
case of an Incentive Stock Option, such an election will result in
a recognition of income to the Optionee for alternative minimum tax
purposes on the date of exercise, measured by the excess, if any,
of the fair market value of the Shares, at the time the option is
exercised, over the purchase price for the Shares. Absent such an
election, alternative minimum taxable income will be measured and
recognized by Optionee at the time or times on which the
Company’s Repurchase Option lapses. Optionee is strongly
encouraged to seek the advice of his or her own tax consultants in
connection with the purchase of the Shares and the advisability of
filing of the Election under Section 83(b) of the Code. A form
of Election under Section 83(b) is attached hereto as
Exhibit C-5 for reference. Optionee acknowledges that it is
Optionee’s sole responsibility and not the Company’s to
file timely the election under Section 83(b), even if optionee
requests the Company or its representative to make this filing on
Optionee’s behalf .
10. Entire Agreement;
Governing Law . The Plan is incorporated herein by reference.
The Plan and this Option Agreement constitute the entire agreement
of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements
of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee’s
interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by the internal substantive
laws but not the choice of law rules of the State of
California.
11. No Guarantee of
Continued Service . OPTIONEE ACKNOWLEDGES AND AGREES THAT THE
VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY
(NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR
ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER
AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN
EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE
PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE
COMPANY’S RIGHT TO TERMINATE OPTIONEE’S RELATIONSHIP AS
A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
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Optionee acknowledges receipt
of a copy of the Plan and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts this
Option subject to all of the terms and provisions thereof Optionee
has reviewed the Plan and this Option in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this
Option and fully understands all provisions of the Option. Optionee
hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any
questions arising under the Plan or this Option. Optionee further
agrees to notify the Company upon any change in the residence
address indicated below.
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OPTIONEE:
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3PARDATA,
INC. |
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Signature
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By: David Scott
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«Name_of_Optionee»
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President
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Name |
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Title |
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«Address_2»
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| Residence
Address |
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Social Security Number
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-6-
EXHIBIT A
1999 STOCK
PLAN
EXERCISE
NOTICE
3PARdata, Inc.
4245 Technology Drive
Fremont, CA 94538
Attention: Corporate
Secretary
1. Exercise of Option
. Effective as of today,
,
the undersigned (“Optionee”) hereby elects to exercise
Optionee’s option to purchase
shares of the Common Stock (the “Shares”) of 3PARdata,
Inc. (the “Company”) under and pursuant to the 1999
Stock Plan (the “Plan”) and the [X] Incentive
[ ] Nonstatutory Stock Option Agreement
dated «Grant_Date» (the “Option
Agreement”).
2. Delivery of Payment
. Purchaser herewith delivers to the Company the full purchase
price of the Shares, as set forth in the Option
Agreement.
3. Representations of
Optionee . Optionee acknowledges that Optionee has received,
read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. Rights as
Stockholder . Until the issuance of the Shares (as evidenced by
the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of
the Option. The Shares shall be issued to the Optionee as soon as
practicable after the Option is exercised. No adjustment shall be
made for a dividend or other right for which the record date is
prior to the date of issuance except as provided in Section 12
of the Plan.
5. Company’s Right
of First Refusal . Before any Shares held by Optionee or any
transferee (either being sometimes referred to herein as the
“Holder”) may be sold or otherwise transferred
(including transfer by gift or operation of law), the Company or
its assignee(s) shall have a right of first refusal to purchase the
Shares on the terms and conditions set forth in this Section (the
“Right of First Refusal”).
(a) Notice of Proposed
Transfer . The Holder of the Shares shall deliver to the
Company a written notice (the “Notice”) stating:
(i) the Holder’s bona fide intention to sell or
otherwise transfer such Shares; (ii) the name of each proposed
purchaser or other transferee (“Proposed Transferee”);
(iii) the number of Shares to be transferred to each Proposed
Transferee; and (iv) the bona fide cash price or other
consideration for which the Holder proposes to transfer the Shares
(the “Offered Price”), and the Holder shall offer the
Shares at the Offered Price to the Company or its
assignee(s).
(b) Exercise of Right of
First Refusal . At any time within thirty (30) days after
receipt of the Notice, the Company and/or its assignee(s) may, by
giving written notice to the Holder, elect to purchase all, but not
less than all, of the Shares proposed to be transferred to any one
or more of the Proposed Transferees, at the purchase price
determined in accordance with subsection (c) below.
(c) Purchase Price .
The purchase price (“Purchase Price”) for the Shares
purchased by the Company or its assignee(s) under this Section
shall be the Offered Price. If the Offered Price includes
consideration other than cash, the cash equivalent value of the
non-cash consideration shall be determined by the Board of
Directors of the Company in good faith.
(d) Payment . Payment
of the Purchase Price shall be made, at the option of the Company
or its assignee(s), in cash (by check), by cancellation of all or a
portion of any outstanding indebtedness of the Holder to the
Company (or, in the case of repurchase by an assignee, to the
assignee), or by any combination thereof within 30 days after
receipt of the Notice or in the manner and at the times set forth
in the Notice.
(e) Holder’s Right
to Transfer . If all of the Shares proposed in the Notice to be
transferred to a given Proposed Transferee are not purchased by the
Company and/or its assignee(s) as provided in this Section, then
the Holder may sell or otherwise transfer such Shares to that
Proposed Transferee at the Offered Price or at a higher price,
provided that such sale or other transfer is consummated within 120
days after the date of the Notice, that any such sale or other
transfer is effected in accordance with any applicable securities
laws and that the Proposed Transferee agrees in writing that the
provisions of this Section shall continue to apply to the Shares in
the hands of such Proposed Transferee. If the Shares described in
the Notice are not transferred to the Proposed Transferee within
such period, a new Notice shall be given to the Company, and the
Company and/or its assignees shall again be offered the Right of
First Refusal before any Shares held by the Holder may be sold or
otherwise transferred.
(f) Exception for Certain
Family Transfers . Anything to the contrary contained in this
Section notwithstanding, the transfer of any or all of the Shares
during the Optionee’s lifetime or on the Optionee’s
death by will or intestacy to the Optionee’s immediate family
or a trust for the benefit of the Optionee’s immediate family
shall be exempt from the provisions of this Section.
“Immediate Family” as used herein shall mean spouse,
lineal descendant or antecedent, father, mother, brother or sister.
In such case, the transferee or other recipient shall receive and
hold the Shares so transferred subject to the provisions of this
Section, and there shall be no further transfer of such Shares
except in accordance with the terms of this Section.
(g) Termina
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