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E XHIBIT
4.05
THIS OPTION AND THE SECURITIES
ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ ACT ”). THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT.
KANA SOFTWARE,
INC.
STOCK OPTION
AGREEMENT
This Stock Option Agreement
(“ Agreement ”) is made and entered into
as of the date of grant set forth below (the “
Date of Grant ”) by and between Kana
Software, Inc., a Delaware corporation (the “
Corporation ”), and the participant named below
(the “ Optionee ”).
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Optionee:
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Social Security
Number:
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Address:
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Total Option Shares:
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Exercise Price Per
Share:
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$3.07
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Date of Grant:
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Expiration Date:
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All capitalized terms in this Agreement
shall have the meaning assigned to them in the attached
Appendix.
This option is being granted to the
Optionee pursuant to the terms of that certain Membership Interests
Purchase Agreement dated May 4, 2007 entered into between the
Corporation, the Optionee and the other members of eVergance
Partners, LLC (the “ Purchase Agreement
”).
NOW , THEREFORE
, it is hereby agreed as follows:
1. Grant of
Option . The Corporation hereby grants to Optionee, as of
the Date of Grant, an option to purchase up to the number of Option
Shares set forth above. The Option Shares shall be purchasable
during the option term specified in Paragraph 2 at the Exercise
Price, subject to all of the terms and conditions of this
Agreement. The option granted hereunder shall be a Non-Statutory
Option.
2. Option Term
. This option shall have a maximum term of ten (10) years
measured from the Date of Grant and shall accordingly expire at the
close of business on the Expiration Date, unless sooner terminated
in accordance with Paragraph 5 or 6.
3. Exercise Period of
Option . This option shall be exercisable with respect to
twenty-five percent (25%) of the Option Shares as of the Date
of Grant and shall become exercisable with respect to (a) an
additional twenty-five percent (25%) of the Option Shares upon
the expiration of three months following the Date of Grant,
(b) an additional twenty-five percent (25%) of the Option
Shares upon the expiration of six months following the Date of
Grant, and (c) the remaining twenty-five percent (25%) of
the Option Shares upon the expiration of nine months following the
Date of Grant. Subject to Paragraph 7 below, the Optionee shall in
no event be entitled under this Agreement to purchase a number of
shares of the Corporation’s Common Stock greater than the
total number of Option Shares as identified as granted in this
Agreement.
4. Limited
Transferability .
(a) Except as set forth in
subparagraph (b) below, this option shall be neither
transferable nor assignable by Optionee other than as required by
law, or by will or the laws of inheritance following
Optionee’s death, and may be exercised, during
Optionee’s lifetime, only by Optionee. However, Optionee may
designate one or more persons as the beneficiary or beneficiaries
of this option, and this option shall, in accordance with such
designation, automatically be transferred to such beneficiary or
beneficiaries upon the Optionee’s death while holding this
option. Such beneficiary or beneficiaries shall take the
transferred option subject to all the terms and conditions of this
Agreement, including (without limitation) the limited time period
during which this option may, pursuant to Paragraph 5, be exercised
following Optionee’s death.
(b) This option may be
assigned in whole or in part during Optionee’s lifetime to
one or more members of Optionee’s family or to a trust
established for the exclusive benefit of one or more such family
members or to Optionee’s former spouse, to the extent such
assignment is in connection with the Optionee’s estate plan
or pursuant to a domestic relations order. The assigned portion
shall be exercisable only by the person or persons who acquire a
proprietary interest in the option pursuant to such assignment. The
terms applicable to the assigned portion shall be the same as those
in effect for this option immediately prior to such
assignment.
(c) The shares of Common
Stock issued or issuable upon the exercise of this option are
subject to the restrictions on transfer set forth in
Section 1.8 of the Purchase Agreement.
5. Cessation of
Exercise . Should Optionee die while holding this option,
then the personal representative of Optionee’s estate or the
person or persons to whom the option is transferred pursuant to
Optionee’s will or the laws of inheritance shall have the
right to exercise this option. However, if Optionee has designated
one or more beneficiaries of this option, then those persons shall
have the exclusive right to exercise this option following
Optionee’s death. Any such right to exercise this option
shall lapse, and this option shall cease to be outstanding, upon
the earlier of (i) the expiration of the twelve
(12)-month period measured from the date of Optionee’s death
or (ii) the Expiration Date.
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6. Special Acceleration
of Option .
(a) This option, to the
extent outstanding at the time of a Corporate Transaction but not
otherwise fully exercisable, shall automatically accelerate so that
this option shall, immediately prior to the effective date of such
Corporate Transaction, become exercisable for all of the Option
Shares at the time subject to this option. The Corporation shall
notify Optionee in writing at least five (5) business days
prior to the effective date of such Corporate
Transaction.
(b) Immediately following the
Corporate Transaction, this option shall terminate and cease to be
outstanding, except to the extent assumed by the successor
corporation (or parent thereof) in connection with the Corporate
Transaction.
(c) If this option is assumed
in connection with a Corporate Transaction, then this option shall
be appropriately adjusted, immediately after such Corporate
Transaction, to apply to the number and class of securities which
would have been issuable to Optionee in consummation of such
Corporate Transaction had the option been exercised immediately
prior to such Corporate Transaction, and appropriate adjustments
shall also be made to the Exercise Price, provided the
aggregate Exercise Price shall remain the same. To the extent the
actual holders of the Corporation’s outstanding Common Stock
receive cash consideration for their Common Stock in consummation
of the Corporate Transaction, the successor corporation may, in
connection with the assumption of this option, substitute one or
more shares of its own common stock with a fair market value
equivalent to the cash consideration paid per share of Common Stock
in such Corporate Transaction.
(d) This Agreement shall not
in any way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
7. Adjustment in Option
Shares . Should any change be made to the Common Stock by
reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting
the outstanding Common Stock as a class without the
Corporation’s receipt of consideration, appropriate
adjustments shall be made to (i) the total number and/or class
of securities subject to this option and (ii) the Exercise
Price in order to reflect such change and thereby preclude a
dilution or enlargement of benefits hereunder. Fractions of a share
of Common Stock will not be issued but will either be paid in cash
at Fair Market Value of such fraction of a Share or will be rounded
down to the nearest whole share of Common Stock, as determined by
the Corporation’s Board of Directors
8. Stockholder
Rights . The holder of this option shall not have any
stockholder rights with respect to the Option Shares until such
person shall have exercised the option, paid the Exercise Price and
become a holder of record of the purchased shares.
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9. Manner of Exercising
Option .
(a) In order to exercise this
option with respect to all or any part of the Option Shares for
which this option is at the time exercisable, Optionee (or any
other person or persons exercising the option) must take the
following actions:
(i) Execute and deliver to
the Corporation a Notice of Exercise for the Option Shares for
which the option is exercised.
(ii) Pay the aggregate
Exercise Price for the purchased shares in one or more of the
following forms:
(A) cash or check made
payable to the Corporation;
(B) shares of Common Stock
held by Optionee (or any other person or persons exercising the
option) for the requisite period necessary to avoid a charge to the
Corporation’s earnings for financial reporting purposes and
valued at Fair Market Value on the Exercise Date; or
(C) through a special sale
and remittance procedure pursuant to which Optionee (or any other
person or persons exercising the option) shall concurrently provide
irrevocable instructions (i) to a Corporation-designated
brokerage firm to effect the immediate sale of the purchased shares
and remit to the Corporation, out of the sale proceeds available on
the settlement date, sufficient funds to cover the aggregate
Exercise Price payable for the purchased shares plus all applicable
Federal, state and local income and employment taxes required to be
withheld by the Corporation by reason of such exercise and
(ii) to the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm in order to
complete the sale.
Except to the extent the sale
and remittance procedure is utilized in connection with the option
exercise, payment of the Exercise Price must accompany
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