Incentive Stock Option
Agreement
Pedestal Software,
Inc. (the “ Company ”) hereby grants the
following stock option pursuant to its 2002 Stock Option and
Incentive Plan. The terms and conditions attached hereto are also a
part hereof.
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Name of
optionee (the “ Optionee ”)
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Date of this
option grant:
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Number of
shares of the Company’s Common Stock subject to this option
(“ Shares ”):
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Option exercise
price per share:
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Number, if any,
of Shares that may be purchased on or after the grant
date:
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Shares that are
subject to vesting schedule:
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Vesting Schedule:
[to be adjusted depending on vesting for each
Optionee]
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One year from
Vesting Start Date:
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On the last day
of each calendar quarter after the one year anniversary of the
Vesting Start Date, until all Shares are vested:
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All vesting is
dependent on the continuation of a Business Relationship with the
Company, as provided herein.
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[Section 7(a)(i) through
(iii)]
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This option
satisfies in full all commitments that the Company has to the
Optionee with respect to the issuance of stock, stock options or
other equity securities.
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Pedestal
Software, Inc.
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By:
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Signature of
Optionee
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Name of
Officer: James M. Geary
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Title:
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President
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Street
Address
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City/State/Zip
Code
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Incentive Stock Option
Agreement — Incorporated Terms And Conditions
1. Grant
Under Plan . This option is granted pursuant to and is governed
by the Company’s 2002 Stock Option and Incentive Plan (the
“ Plan ”) and, unless the context otherwise
requires, terms used herein shall have the same meaning as in the
Plan.
2. Grant
as Incentive Stock Option . This option is intended to qualify
as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder
(the “ Code ”).
(a) Vesting if
Business Relationship Continues . The Optionee may exercise
this option on or after the date of this option grant for the
number of shares of Common Stock, if any, set forth on the cover
page hereof. If the Optionee has continuously maintained a Business
Relationship (as defined below) with the Company through the dates
listed on the vesting schedule set forth on the cover page hereof,
the Optionee may exercise this option for the additional number of
shares of Common Stock set opposite the applicable vesting date.
Notwithstanding the foregoing, the Board may, in its discretion,
accelerate the date that any installment of this option becomes
exercisable. The foregoing rights are cumulative and may be
exercised only before the date which is ten years from the date of
this option grant.
(b)
Definitions . The following definitions shall
apply:
“
Acquisition ” means (i) the sale of the Company
by merger in which the shareholders of the Company in their
capacity as such no longer own a majority of the outstanding equity
securities of the Company (or its successor); or (ii) any sale
of all or substantially all of the assets or capital stock of the
Company (other than in a spin-off or similar transaction) or
(iii) any other acquisition of the business of the Company, as
determined by the Board.
“
Business Relationship ” means service to the Company
or its successor in the capacity of an employee, officer, director
or consultant.
“
Cause ” means: (i) gross negligence or willful
malfeasance in the performance of the Optionee’s work or a
breach of fiduciary duty or confidentiality obligations to the
Company by the Optionee; (ii) failure to follow the proper
directions of the Optionee’s direct or indirect supervisor
after written notice of such failure; (iii) the commission by
the Optionee of illegal conduct relating to the Company;
(iv) disregard by the Optionee of the material rules or
material policies of the Company which has not been cured within
15 days after notice thereof from the Company; or
(v) intentional acts on the part of the Optionee that have
generated material adverse publicity toward or about the Company or
(vi) unsatisfactory performance by the Optionee of his or her
job
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with the
Company, as determined by the Board of Directors of the Company in
its sole discretion.
“ Private
Transaction ” means any Acquisition where the
consideration received or retained by the holders of the then
outstanding capital stock of the Company does not consist of
(i) cash or cash equivalent consideration, (ii) securities
which are registered under the Securities Act and/or
(iii) securities for which the Company or any other issuer
thereof has agreed, including pursuant to a demand, to file a
registration statement within ninety (90) days of completion
of the transaction for resale to the public pursuant to the
Securities Act.
4.
Termination of Business Relationship .
(a)
Termination . If the Optionee’s Business Relationship
with the Company ceases, voluntarily or involuntarily, with or
without cause, no further installments of this option shall become
exercisable, and this option shall expire (may no longer be
exercised) after the passage of three months from the date of
termination, but in no event later than the scheduled expiration
date. Any determination under this agreement as to the status of a
Business Relationship or other matters referred to above shall be
made in good faith by the Board of Directors of the
Company.
(b) Employment
Status . For purposes hereof, with respect to employees of the
Company, employment shall not be considered as having terminated
during any leave of absence if such leave of absence has been
approved in writing by the Company and if such written approval
contractually obligates the Company to continue the employment of
the Optionee after the approved period of absence; in the event of
such an approved leave of absence, vesting of this option shall be
suspended (and the period of the leave of absence shall be added to
all vesting dates) unless otherwise provided in the Company’s
written approval of the leave of absence. For purposes hereof, a
termination of employment followed by another Business Relationship
shall be deemed a termination of the Business Relationship with all
vesting to cease unless the Company enters into a written agreement
related to such other Business Relationship in which it is
specifically stated that there is no termination of the Business
Relationship under this agreement. This option shall not be
affected by any change of employment within or among the Company
and its Subsidiaries so long as the Optionee continuously remains
an employee of the Company or any Subsidiary.
(c) Termination
for Cause . If the Business Relationship of the Optionee is
terminated for Cause (as defined above), this option may no longer
be exercised from and after the Optionee’s receipt of written
notice of such termination.
(a) Death .
Upon the death of the Optionee while the Optionee is maintaining a
Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of the
Optionee’s death, by the Optionee’s estate, personal
representative or beneficiary to whom this option has been
transferred pursuant
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to
Section 10, only at any time within 180 days after the
date of death, but not later than the scheduled expiration
date.
(b)
Disability . If the Optionee ceases to maintain a Business
Relationship with the Company by reason of his or her disability,
this option may be exercised, to the extent otherwise exercisable
on the date of cessation of the Business Relationship, only at any
time within 180 days after such cessation of the Business
Relationship, but not later than the scheduled expiration date. For
purposes hereof, “ disability ” means “
permanent and total disability ” as defined in
Section 22(e)(3) of the Code.
6.
Partial Exercise . This option may be exercised in part at
any time and from time to time within the above limits, except that
this option may not be exercised for a fraction of a
share.
7.
Payment of Exercise Price .
(a) Payment
Options . The exercise price shall be paid by one or any
combination of the following forms of payment that are applicable
to this option, as indicated on the cover page hereof:
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(i)
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by
check payable to the order of the Company; or
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(ii)
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delivery of an irrevocable and
unconditional undertaking, satisfactory in form and substance to
the Company, by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price, or delivery by
the Optionee to the Company of a copy of irrevocable and
unconditional instructions, satisfactory in form and substance to
the Company, to a creditworthy broker to deliver promptly to the
Company cash or a check sufficient to pay the exercise price;
or
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(iii)
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subject to Section 7(b) below, if
the Common Stock is then traded on a national securities exchange
or on the Nasdaq National Market (or successor trading system), by
delivery of shares of Common Stock having a fair market value equal
as of the date of exercise to the option price; or
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In the case of
(iii) above, fair market value as of the date of exercise
shall be determined as of the last business day for which such
prices or quotes are available prior to the date of exercise and
shall mean (i) the last reported sale price (on that date) of
the Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is then
traded on a national securities exchange; or (ii) the last
reported sale price (on that date) of the Common Stock on the
Nasdaq National Market (or successor trading system), if the Common
Stock is not then traded on a national securities
exchange.
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(b) Limitations
on Payment by Delivery of Common Stock . If
Section 7(a)(iii) is applicable, and if the Optionee delivers
Common Stock held by the Optionee (“ Old Stock
”) to the Company in full or partial payment of the exercise
price and the Old Stock so delivered is subject to restrictions or
limitations imposed by agreement between the Optionee and the
Company, an equivalent number of Shares shall be subject to all
restrictions and limitations applicable to the Old Stock to the
extent that the Optionee paid for the Shares by delivery of Old
Stock, in addition to any restrictions or limitations imposed by
this agreement. Notwithstanding the foregoing, the Optionee may not
pay any part of the exercise price hereof by transferring Common
Stock to the Company unless such Common Stock has been owned by the
Optionee free of any substantial risk of forfeiture for at least
six months.
8.
Securities Laws Restrictions on Resale . Until registered
under the Securities Act of 1933, as amended, or any successor
statute (the “ Securities Act ”), the Shares
will be illiquid and will be deemed to be “restricted
securities” for purposes of the Securities Act. Accordingly,
such shares must be sold in compliance with the registration
requirements of the Securities Act or an exemption therefrom and
may need to be held indefinitely. Unless the Shares have been
registered under the Securities Act, each certificate evidencing
any of the Shares shall bear a restrictive legend specified by the
Company.
9. Method
of Exercising Option . Subject to the terms and conditions of
this agreement, this option may be exercised by written notice to
the Company at its principal executive office, or to such transfer
agent as the Company shall designate. Such notice shall state the
election to exercise this option and the number of Shares for which
it is being exercised and shall be signed by the person or persons
so exercising this option. Such notice shall be accompanied by
payment of the full purchase price of such shares, and the Company
shall deliver a certificate or certificates representing such
shares as soon as practicable after the notice shall be received.
Such certificate or certificates shall be registered in the name of
the person or persons so exercising this option (or, if this option
shall be exercised by the Optionee and if the Optionee shall so
request in the notice exercising this option, shall be registered
in the name of the Optionee and another person jointly, with right
of survivorship). In the event this option shall be exercised,
pursuant to Section 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise this
option.
10.
Option Not Transferable . This option is not transferable or
assignable except by will or by the laws of descent and
distribution, provided, however, that as a condition precedent to
any such transfer, the Transferee shall be bound by all provisions
of this Agreement to the same extent as if such transferee were the
Optionee. During the Optionee’s lifetime only the Optionee
can exercise this option.
11. No
Obligation to Exercise Option . The grant and acceptance of
this option imposes no obligation on the Optionee to exercise
it.
12. No
Obligation to Continue Business Relationship . Neither the
Plan, this agreement, nor the grant of this option imposes any
obligation on the Company to continue the Optionee in employment or
other Business Relationship.
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13.
Adjustments . Except as is expressly provided in the Plan
with respect to certain changes in the capitalization of the
Company, no adjustment shall be made for dividends or similar
rights for which the record date is prior to such date of
exercise.
(a) Withholding
Taxes . If the Company in its discretion determines that it is
obligated to withhold any tax in connection with the exercise of
this option, or in connection with the transfer of, or the lapse of
restrictions on, any Common Stock or other property acquired
pursuant to this option, the Optionee hereby agrees that the
Company may withhold from the Optionee’s wages or other
remuneration the appropriate amount of tax. At the discretion of
the Company, the amount required to be withheld may be withheld in
cash from such wa
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