Exhibit 10.49
OVERLAND STORAGE,
INC.
NOTICE OF INDUCEMENT STOCK OPTION
GRANT
As an inducement material to the
hiring of the Optionee named below, Overland Storage, Inc., a
California corporation (the “Company”), hereby grants
to the Optionee a nonstatutory stock option to purchase up to the
number of Common Shares of the Company’s Common Stock set
forth below (the “Option”). This Option is subject to
all of the terms and conditions set forth herein and in the
Nonstatutory Stock Option Agreement (attached hereto) which is
incorporated herein in its entirety. This Option is not issued
pursuant to the Company’s 2003 Equity Incentive Plan or any
other equity incentive plan of the Company.
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Name of
Optionee:
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Total Number of
Common Shares:
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Type of
Option:
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Nonstatutory
Stock Option
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Exercise Price
Per Common Share:
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$
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Common Share
Fair Market Value on Date of Grant
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$
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Date of
Grant:
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Vesting
Commencement Date:
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Vesting
Schedule:
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This Option becomes exercisable with respect to
the first [ ]% of the Common Shares subject
to this Option when you complete [ ] months
of continuous Service from the Vesting Commencement
Date. Thereafter, this Option becomes exercisable with respect
to an additional [ ]% of the Common Shares
subject to this Option when you complete each month of
Service.
In addition, this Option will
becomes exercisable in full if the Company is subject to a Change
in Control before your Service terminates.
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Expiration
Date:
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[ ][ ],
20[ ], or if such date falls on a day when
Company headquarters are not open for business, at the close of
business at Company headquarters on the last business day before
such date. This Option expires earlier if your Service
terminates earlier, as described in the Nonstatutory Stock Option
Agreement.
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The Optionee acknowledges receipt
of, and represents that the Optionee has read, understands, accepts
and agrees to the terms of this Notice of Nonstatutory Stock Option
Grant (“Grant Notice”) and the Nonstatutory Stock
Option Agreement. The Optionee hereby accepts the Option subject to
all of its terms and conditions and further acknowledges that as of
the Date of Grant, this Grant Notice
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and the Nonstatutory Stock Option Agreement set
forth the entire understanding between the Optionee and the Company
regarding the acquisition of stock in the Company and supersede all
prior oral and written agreements pertaining to this particular
Option. All capitalized terms used but not defined herein have the
meaning ascribed in the Notice of Nonstatutory Stock Option
Grant.
The Optionee further agrees that the
Company may deliver by email all documents relating to this Option
(including, without limitation, prospectuses required by the
Securities and Exchange Commission) and all other documents that
the Company is required to deliver to its security holders
(including, without limitation, annual reports and proxy
statements). The Optionee also agrees that the Company may
deliver these documents by posting them on a web site maintained by
the Company or by a third party under contract with the Company. If
the Company posts these documents on a web site, it will notify the
Optionee by email.
NOTE: THE OPTIONEE IS SOLELY
RESPONSIBLE FOR ANY ELECTION TO EXERCISE THE OPTION, AND THE
COMPANY SHALL HAVE NO OBLIGATION WHATSOEVER TO PROVIDE NOTICE TO
THE OPTIONEE OF ANY MATTER, INCLUDING, BUT NOT LIMITED TO, THE DATE
THE OPTION TERMINATES.
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Optionee:
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Overland
Storage, Inc.
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By:
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Title:
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OVERLAND STORAGE,
INC.
NONSTATUTORY STOCK OPTION
AGREEMENT
Pursuant to the Grant Notice and
this Nonstatutory Stock Option Agreement (the “
Agreement ”), Overland Storage, Inc., a
California corporation (the “ Company ”)
has granted to the Optionee named in the Grant Notice (“
you ” or the “ Optionee
”) an Option to purchase the number of Common Shares of the
Company’s common stock (the “ Stock
”) indicated in the Grant Notice at the Exercise Price
indicated in the Grant Notice.
The details of this Option are as
follows:
1. Definitions And
Construction .
1.1 Definitions . Whenever
used herein, the following terms shall have their respective
meanings set forth below:
(a) “ 2003 Plan
” means the Company’s 2003 Equity Incentive Plan, as
amended and restated from time to time. This Option is not granted
pursuant to the 2003 Plan.
(b) “ Affiliate
” means any entity other than a Subsidiary, if the Company
and/or one or more Subsidiaries own not less than 50% of such
entity.
(c) “ Applicable
Law ” means any and all laws of whatever
jurisdiction, within or without the United States, and the rules of
any stock exchange or quotation system on which Common Shares are
listed or quoted, applicable to the taking or refraining from
taking of any action under the Agreement, including the
administration of the Agreement and the issuance or transfer of the
Agreement.
(d) “ Board
” means the Company’s Board of Directors, as
constituted from time to time.
(e) “ Cause
” means (a) acts or omissions constituting gross
negligence, recklessness or willful misconduct with respect to the
Optionee’s obligations or otherwise relating to the business
of the Company; (b) the Optionee’s material breach of a
written agreement between the Optionee and the Company (or a
Parent, Subsidiary or Affiliate); (c) conviction or entry of a
plea of nolo contendere for fraud, misappropriation or
embezzlement, or any felony or crime of moral turpitude;
(d) dishonesty or involvement in any conduct that adversely
affects the Company’s name or public image or is otherwise
detrimental to the Company’s business interests;
(e) willful neglect of duties; or (f) unauthorized use or
disclosure of the confidential information or trade secrets of the
Company, which use or disclosure causes material harm to the
Company. The foregoing, however, shall not be deemed an exclusive
list of all acts or omissions that the Company (or the Parent,
Subsidiary or Affiliate employing the Optionee) may consider as
grounds for the discharge of the Optionee without Cause. The
Committee shall be entitled to determine “Cause” based
on the Committee’s good faith belief.
(f) “ Change in
Control ” means:
(1) The consummation of a merger or
consolidation of the Company with or into another entity or any
other corporate reorganization, if persons who were not
shareholders of the Company immediately prior to such merger,
consolidation or other reorganization own immediately after such
merger, consolidation or other reorganization 50% or more of the
voting power of the outstanding securities of each of (i) the
continuing or surviving entity and (ii) any direct or indirect
parent corporation of such continuing or surviving
entity;
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(2) The sale, transfer or other
disposition of all or substantially all of the Company’s
assets;
(3) A change in the composition of
the Board over a period of thirty-six (36) months or less such
that a majority of the Board members (rounded up to the next whole
number) ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who are Continuing
Directors;
(4) Any transaction as a result of
which the direct or indirect acquisition by any person or related
group of persons (other than an acquisition from or by the Company
or by a Company-sponsored employee benefit plan or by a person that
directly or indirectly controls, is controlled by, or is under
common control with, the Company) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company’s outstanding securities pursuant
to a tender or exchange offer made directly to the Company’s
shareholders which a majority of the Continuing Directors who are
not affiliated with the offeror do not recommend such shareholders
accept; or
(5) A Divestiture; provided that a
Divestiture shall be a Change in Control only to the extent that
the Board determines that such Divestiture constitutes a Change in
Control, and then only for the Optionee if the Board has expressly
resolved that such Divestiture constitutes a Change in Control for
the Optionee or generally under the 2003 Plan. In making such
determination, the Board need not adopt the same rules for each
holder of a Company equity compensation award.
A transaction shall not constitute a
Change in Control if its sole purpose is to change the state of the
Company’s incorporation or to create a holding company that
will be owned in substantially the same proportions by the persons
who held the Company’s securities immediately before such
transaction. The Committee shall determine whether an event shall
be treated as a Change in Control.
(g) “ Code
” means the Internal Revenue Code of 1986, as
amended.
(h) “ Committee
” means a committee of the Board, as described in
Section 2.
(i) “ Common
Share ” means one share of the common stock of the
Company.
(j) “ Company
” means Overland Storage, Inc., a California
corporation.
(k) “ Consultant
” means a consultant or adviser who provides bona fide
services to the Company, a Parent, a Subsidiary or an Affiliate as
an independent contractor.
(l) “ Continuing
Directors ” means members of the Board who either
(i) have been Board members continuously for a period of at
least thirty-six (36) months or (ii) have been Board
members for less than thirty-six (36) months and were elected
or nominated for election as Board members by at least a majority
of the Board members described in clause (i) who were still in
office at the time such election or nomination was approved by the
Board.
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(m) “ Delay In Payments
to Specified Employees ” means if the Optionee is a
“specified employee” (as defined under Code
Section 409A) on “separation from Service” (as
defined under Code Section 409A), to the extent any Award or
arrangement needs to comply with Code Section 409A, then
certain payments may be delayed and not be paid during the first
six months following the “separation from Service” but
will instead be paid on the earlier of the first business day of
the 7 th
month following the
“separation from Service,” or the Optionee’s
death.
(n) “
Divestiture ” means a transaction or event
where the Company or a Parent, Subsidiary or Affiliate sells or
otherwise transfers its equity securities to a person or entity
other than the Company or a Parent, Subsidiary or Affiliate, or
leases, exchanges or transfers all or any portion of its assets to
such a person or entity, where the Board specifies that such
transaction or event constitutes a
“Divestiture.”
(o) “ Domestic Relations
Order ” means a “domestic relations
order” as defined in, and otherwise meeting the requirements
of, section 414(p) of the Code, except that reference to a
“plan” in that definition shall be to the
Agreement.
(p) “ Director
” means a member of the Board of Directors of the
Company.
(q) “ Employee
” means a common law employee of the Company, a Parent, a
Subsidiary or an Affiliate. Notwithstanding the foregoing, if you
are classified by the Company or a Parent, Subsidiary or Affiliate
as (i) leased from or otherwise employed by a third party,
(ii) an independent contractor, or (iii) an intermittent
or temporary worker, you shall not be deemed an Employee. The
Company’s or a Parent’s, Subsidiary’s or
Affiliate’s classification of you as an
“Employee” (or as not an “Employee”) for
purposes of this Agreement shall not be altered retroactively even
if that classification is changed retroactively for another purpose
as a result of an audit, litigation or otherwise. The Optionee
shall not cease to be an Employee due to transfers between
locations of the Company, or among the Company and a Parent,
Subsidiary or Affiliate, or to any successor to the Company or a
Parent, Subsidiary or Affiliate that assumes the Optionee’s
Options under Section 11.3. Neither service as a Director nor
receipt of a director’s fee shall be sufficient to make a
Director an “Employee.”
(r) “ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended.
(s) “ Exercise
Price ” means the amount for which one Common Share
may be purchased upon exercise of the Option, as specified in this
Agreement.
(t) “ Fair Market
Value ” means the market price of Common Shares,
determined by the Committee in good faith on such basis as it deems
appropriate. Whenever possible, the determination of Fair Market
Value by the Committee shall be based on the prices reported in The
Wall Street Journal. Such determination shall be conclusive and
binding on all persons.
(u) “ Involuntary
Termination ” means the termination of the
Optionee’s Service by reason of:
(1) The involuntary discharge of the
Optionee by the Company (or the Parent, Subsidiary or Affiliate
employing him or her) for reasons other than Cause; or
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(2) The voluntary resignation of the
Optionee following (i) a material adverse change in his or her
title, stature, authority or responsibilities with the Company (or
the Parent, Subsidiary or Affiliate employing him or her),
(ii) a material reduction in his or her base salary or
(iii) receipt of notice that his or her principal workplace
will be relocated by more than 90 miles.
(v) “ ISO
” means an incentive stock option described in section 422(b)
of the Code.
(w) “ NSO
” means a stock option not described in sections 422 or 423
of the Code.
(x) “ Officer
” means an officer of the Company as defined in Rule 16a-1
adopted under the Exchange Act.
(y) “ Outside
Director ” means a member of the Board who is not an
Employee.
(z) “ Parent
” means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of
the corporations other than the Company owns stock possessing 50%
or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain. A corporation that
attains the status of a Parent on a date after the Date of Grant
indicated in the Grant Notice shall be considered a Parent
commencing as of such date.
(aa) “ Securities
Act ” means the Securities Act of 1933, as
amended.
(bb) “ Service
” means your service as an Employee, Outside Director or
Consultant. Unless otherwise determined by the Committee or
otherwise provided in the Agreement, Service shall continue
notwithstanding a change in status from an Employee, Consultant or
Outside Director to another such status. An event that causes a
Parent, Subsidiary or Affiliate to cease having status as a Parent,
Subsidiary or Affiliate shall be deemed to discontinue your Service
unless you retain the status of Employee, Outside Director or
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