Exhibit 10.2
INTERWOVEN, INC.
2008 EQUITY INCENTIVE PLAN
NOTICE OF STOCK OPTION GRANT
Unless
otherwise defined herein, the terms defined in the 2008 Equity
Incentive Plan (the “ Plan ”) shall have
the same meanings in this Notice of Stock Option Grant (the “
Notice ”).
You (the
“ Participant ”) have been granted an
option to purchase shares of Common Stock of the Company under the
Plan subject to the terms and conditions of the Plan, this Notice
and the Stock Option Award Agreement (the “ Option
Agreement ”).
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Grant Number : |
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Date of Grant : |
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Vesting Commencement Date
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Exercise Price per Share
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Total Number of Shares : |
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Type of Option : |
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Non-Qualified Stock Option (
shares) |
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Incentive Stock Option (
shares) |
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Expiration Date : |
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Post-Termination Exercise
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Termination for Cause = None |
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Voluntary Termination = 3 Months |
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Termination without Cause = 3
Months |
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Disability = 12 Months |
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Death =
12 Months |
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Vesting Schedule : |
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Subject to the limitations set forth
in this Notice, the Plan and the Option Agreement, the Option will
vest and may be exercised, in whole or in part, in accordance with
the following schedule: [ Vesting may occur based on
achievement, at the end of a period of time, of a specified goal or
specified goals based on such factors as: annual revenue, cash
position, earnings per share, operating cash flow, market share,
new product releases, net income, operating income, return on
assets, return on equity, return on investment, software license
bookings, EBITDA or other financial measure, or any other
performance-related goal as approved from time to time.
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You
understand that your employment or consulting relationship or
service with the Company is for an unspecified duration, can be
terminated at any time (i.e., is “at-will”), and that
nothing in this Notice, the Option Agreement or the Plan changes
the at-will nature of that relationship. You acknowledge that the
vesting of the Options pursuant to this Notice is earned only by
continuing service as an Employee, Director or Consultant of the
Company. Participant also understands that this Notice is subject
to the terms and conditions of both the Option Agreement and the
Plan, both of which are incorporated herein by reference.
Participant has read both the Option Agreement and the Plan.
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PARTICIPANT:
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INTERWOVEN, INC. |
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Signature:
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By:
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Print Name:
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Its:
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Date:
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Date:
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Notice
of Grant of Stock
Options and Option Agreement
Interwoven, Inc.
ID: 94-3221352
160 East Tasman Drive
San Jose, CA 95134
Employee Name
Option Number:
Plan:
ID:
Effective
, you have been granted a(n)
[Incentive/Nonqualified] Stock Option to buy
shares of Interwoven, Inc. (the Company) stock at $
per share.
The
total option price of the shares granted is $
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Shares
in each period will become fully vested on the date shown.
[
Vesting may occur based on achievement, at the end of a period of
time, of a specified goal or specified goals based on such factors
as: annual revenue, cash position, earnings per share, operating
cash flow, market share, new product releases, net income,
operating income, return on assets, return on equity, return on
investment, software license bookings, EBITDA or other financial
measure, or any other performance-related goal as approved from
time to time. ]
By your
signature and the Company’s signature below, you and the
Company agree that these options are granted under and governed by
the terms and conditions of the Company’s Stock Option Plan
as amended and the Option Agreement, all of which are attached and
made a part of this document.
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Interwoven,
Inc.
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Optionee Name
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INTERWOVEN, INC.
STOCK OPTION AWARD AGREEMENT
2008 EQUITY INCENTIVE PLAN
Unless
otherwise defined in this Stock Option Award Agreement (the “
Agreement ”), any capitalized terms used herein
shall have the meaning ascribed to them in the Company’s 2008
Equity Incentive Plan (the “ Plan
”).
Participant has been granted an
option to purchase Shares (the “ Option
”), subject to the terms and conditions of the Plan, the
Notice of Stock Option Grant (the “ Notice
”) and this Agreement.
1. Vesting
Rights . Subject to the applicable provisions of the
Plan and this Agreement, this Option may be exercised, in whole or
in part, in accordance with the schedule set forth in the
Notice.
2. Termination
Period .
(a)
General Rule . Except as provided below, and subject to the
Plan, this Option may be exercised for 3 months after
termination of Participant’s employment with the Company. In
no event shall this Option be exercised later than the Expiration
Date set forth in the Notice.
(b)
Death; Disability . Unless provided otherwise in the Notice,
upon the termination of Participant’s service to the Company
by reason of his or her Disability or death, or if a Participant
dies within three months of the Termination Date, this Option may
be exercised for twelve months, provided that in no event shall
this Option be exercised later than the Expiration Date set forth
in the Notice.
(c)
Cause . Upon the termination of Participant’s
employment by the Company for Cause, the Option shall expire on
such date of Participant’s Termination Date.
3. Grant of
Option . The Participant named in the Notice has
been granted an Option for the number of Shares set forth in the
Notice at the exercise price per Share set forth in the Notice (the
“ Exercise Price ”). In the event of a
conflict between the terms and conditions of the Plan and the terms
and conditions of this Agreement, the terms and conditions of the
Plan shall prevail. If designated in the Notice as an Incentive
Stock Option (“ ISO ”), this Option is
intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended
to be an ISO, to the extent that it exceeds the $100,000 rule of
Code Section 422(d) it shall be treated as a Non-Qualified Stock
Option (“ NSO ”).
4. Exercise of
Option .
(a)
Right to Exercise . This Option is exercisable during its
term in accordance with the Vesting Schedule set forth in the
Notice and the applicable provisions of the Plan and this
Agreement. In the event of Participant’s death, Disability,
Termination for Cause or other Termination, the exercisability of
the Option is governed by the applicable provisions of the Plan,
the Notice and this Agreement.
(b)
Method of Exercise . This Option is exercisable by delivery
of an exercise notice (the “ Exercise Notice
”), which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being
exercised (the “ Exercised Shares ”), and
such other representations and agreements as may be required by the
Company pursuant to the provisions of the Plan. The Exercise Notice
shall be delivered in person, by mail, via electronic mail or
facsimile or by other authorized method to the Secretary of the
Company or other person designated 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 such aggregate Exercise Price.
(c) No
Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with all relevant
provisions of law and the requirements of any stock exchange or
quotation service upon which the Shares are then listed. Assuming
such compliance, for income tax purposes the Exercised Shares shall
be considered transferred to the Participant on the date the Option
is exercised with respect to such Exercised Shares.
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 Participant:
(a) cash;
(b) check;
(c) a
“broker-assisted” or “same-day sale” (as
described in Section 11(d) of the Plan); or
(d) any
other method authorized by the Company.
6.
Non-Transferability of Option . This Option
may not be transferred in any manner other than by will or by the
laws of descent or distribution or court order and may be exercised
during the lifetime of Participant only by the Participant unless
otherwise permitted by the Committee on a case-by-case basis. The
terms of the Plan and this Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the
Participant.
7. Term of
Option . This Option shall in any event expire on
the expiration date set forth in the Notice of Stock Option Grant,
which date is 10 years after the Date of Grant (five years
after the Date of Grant if this option is designated as an ISO in
the Notice of Stock Option Grant and Section 5.3 of the Plan
applies).
8. U.S. Tax
Consequences . For Participants subject to U.S.
income tax, some of the federal tax consequences relating to this
Option, as of the date of this Option, are set forth below. All
other Participants should consult a tax advisor for tax
consequences relating to this Option in their respective
jurisdiction. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX
LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE PARTICIPANT SHOULD
CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF
THE SHARES.
(a)
Exercising the Option .
(i)
Non-Qualified Stock Option . The Participant may incur
federal ordinary income tax liability upon exercise of a NSO. The
Participant 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 Exercised Shares on the date of
exercise over their aggregate Exercise Price. If the Participant is
an Employee or a former Employee, the Company will be required to
withhold from his or her compensation an amount equal to the
minimum amount the Company is required to withhold for income and
employment taxes or collect from Participant 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.
(ii)
Incentive Stock Option . If this Option qualifies as an ISO,
the Participant will have no regular federal income tax liability
upon its exercise, although the excess, if any, of the aggregate
Fair Market Value of the Exercised Shares on the date of exercise
over their aggregate Exercise Price will be treated as an
adjustment to alternative minimum taxable income for federal tax
purposes and may subject the Participant to alternative minimum tax
in the year of exercise.
(b)
Disposition of Shares .
(i)
NSO . If the Participant holds NSO Shares 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.
(ii)
ISO . If the Participant holds ISO Shares for at least one
year after exercise and two years after the grant date, any gain
realized on disposition of the Shares will be treated as long-term
capital gain for federal income tax purposes. If the Participant
disposes of ISO Shares within one year after exercise or two years
after the grant date, any gain realized on such disposition will be
treated as compensation income (taxable at ordinary income rates)
to the extent of the excess, if any, of the lesser of (A) the
difference between the Fair Market Value of the Shares acquired on
the date of exercise and the aggregate Exercise Price, or
(B) the difference between the sale price of such Shares and
the aggregate Exercise Price.
(c)
Notice of Disqualifying Disposition of ISO Shares . If the
Participant sells or otherwise disposes of any of the Shares
acquired pursuant to an ISO on or before the later of (i) two
years after the grant date, or (ii) one year after the
exercise date, the Participant shall immediately notify the Company
in writing of such disposition. The Participant agrees that he or
she may be subject to income tax withholding by the Company on the
compensation income recognized from such early disposition of ISO
Shares by payment in cash or out of the current earnings paid to
the Participant.
9.
Acknowledgement . The Company and Participant
agree that the Option is granted under and governed by the Notice,
this Agreement and by the provisions of the Plan (incorporated
herein by reference). Participant: (i) acknowledges receipt of
a copy of the Plan and the Plan prospectus, (ii) represents
that Participant has carefully read and is familiar with their
provisions, and (iii) hereby accepts the Option subject to all
of the terms and conditions set forth herein and those set forth in
the Plan and the Notice.
10. Entire
Agreement; Enforcement of Rights . This Agreement,
the Plan and the Notice constitute the entire agreement and
understanding of the parties relating to the subject matter herein
and supersede all prior discussions between them. Any prior
agreements, commitments or negotiations concerning the purchase of
the Shares hereunder are superseded. No modification of or
amendment to this Agreement, nor any waiver of any rights under
this Agreement, shall be effective unless in writing and signed by
the parties to this Agreement. The failure by either party to
enforce any rights under this Agreement shall not be construed as a
waiver of any rights of such party.
11. Compliance
with Laws and Regulations . The issuance of Shares
will be subject to and conditioned upon compliance by the Company
and Participant with all applicable state and federal laws and
regulations and with all applicable requirements of any stock
exchange or automated quotation system on which the Company’s
Common Stock may be listed or quoted at the time of such issuance
or transfer.
12. Governing
Law; Severability . If one or more provisions of
this Agreement are held to be unenforceable under applicable law,
the parties agree to renegotiate such provision in good faith. In
the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the
balance of this Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of this Agreement shall
be enforceable in accordance with its terms. This Agreement and all
acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of California,
without giving effect to principles of conflicts of law.
13. No Rights as
Employee, Director or Consultant . Nothing in this
Agreement shall affect in any manner whatsoever the right or power
of the Company, or a Parent or Subsidiary of the Company, to
terminate Participant’s service, for any reason, with or
without cause.
By your signature and the signature
of the Company’s representative on the Notice, you and the
Company agree that this Option is granted under and governed by the
terms and conditions of the Plan, the Notice and this Agreement.
Participant has reviewed the Plan, the Notice and this Agreement in
their entirety, has had an opportunity to obtain the advice of
counsel prior to executing the Notice, and fully understands all
provisions of the Plan, the Notice and this Agreement. Participant
hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Committee upon any questions
relating to the Plan, the Notice and the Agreement. Participant
further agrees to notify the Company upon any change in the
residence address indicated on the Notice.
No.
INTERWOVEN, INC.
2008 EQUITY INCENTIVE PLAN
STOCK OPTION EXERCISE AGREEMENT
This Stock Option Exercise Agreement
(the “ Exercise Agreement ”) is made and
entered into as of ___, ___ (the “ Effective
Date ”) by and between Interwoven, Inc., a Delaware
corporation (the “ Company ”), and the
purchaser named below (the “ Purchaser
”). Capitalized terms not defined herein shall have the
meanings ascribed to them in the Company’s 2008 Equity
Incentive Plan (the “ Plan ”).
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Purchaser:
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Address:
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Total Number of
Shares:
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Exercise Price
Per Share:
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Date of
Grant:
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Type of Stock
Option
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(Check
one):
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Incentive Stock Option |
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Non-Qualified Stock Option |
1. Exercise of
Option .
1.1
Exercise . Pursuant to exercise of that certain option (the
“ Option ”) granted to Purchaser under
the Plan and subject to the terms and conditions of this Exercise
Agreement, Purchaser hereby purchases from the Company, and the
Company hereby sells to Purchaser, the Total Number of Shares set
forth above (the “ Shares ”) of the
Company’s Common Stock, $0.001 par value per share, at the
Exercise Price Per Share set forth above (the “
Exercise Price ”). As used in this Exercise
Agreement, the term “ Shares ” refers to
the Shares purchased under this Exercise Agreement and includes all
securities received (i) in replacement of the Shares,
(ii) as a result of stock dividends or stock splits with
respect to the Shares, and (iii) all securities received in
replacement of the Shares in a merger, recapitalization,
reorganization or similar corporate transaction.
1.2
Title to Shares . The exact spelling of Purchaser’s
name under which Purchaser will take title to the Shares is:
1.3
Payment . Purchaser hereby delivers payment of the Exercise
Price in the manner permitted in the Stock Option Agreement as
follows (check and complete as appropriate):
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in cash (by check) in the amount of $___, receipt of which is
acknowledged by the Company; |
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by delivery of ___ fully-paid, nonassessable and vested shares
of the Common Stock of the Company owned by Purchaser for which the
Company has received “full payment of the purchase
price” within the meaning of SEC Rule 144, (if purchased
by use of a promissory note, such note has been fully paid with
respect to such vested shares), or obtained by Purchaser in the
open public market, and owned free and clear of all liens, claims,
encumbrances or security interests, valued at the current Fair
Market Value of $
per share; |
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by cash received by the Company pursuant to a broker-assisted
and/or same day sale (or other) “cashless” exercise
program implemented by the Company; |
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by the waiver hereby of compensation due or accrued for
services rendered in the amount of $
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2.
Delivery .
2.1
Deliveries by Purchaser . Purchaser hereby delivers to the
Company (i) this Exercise Agreement and (ii) the Exercise
Price and payment or other provision for any applicable tax
obligations in the form indicated above.
2.2
Deliveries by the Company . Upon its receipt of the Exercise
Price, payment or other provision for any applicable tax
obligations and this Exercise Agreement executed and delivered by
Purchaser to the Company under Section 2.1, the Company will
issue a duly executed stock certificate evidencing the Shares in
the name of Purchaser or deposit the Shares in “street
name” in the appropriate brokerage account maintained in the
name of Purchaser.
3.
Representations and Warranties of Purchaser .
Purchaser represents and warrants to the Company that:
3.1
Agrees to Terms of the Plan . Purchaser has received a copy
of the Plan and the Stock Option Agreement, has read and
understands the terms of the Plan, the Stock Option Agreement and
this Exercise Agreement, and agrees to be bound by their terms and
conditions. Purchaser acknowledges that there may be adverse tax
consequences upon exercise of the Option or disposition of the
Shares, and that Purchaser should consult a tax adviser prior to
such exercise or disposition.
3.2
Access to Prospectus . Purchaser has received and reviewed
the prospectus for the Plan.
4. Rights as a
Stockholder . Subject to the terms and conditions of
this Exercise Agreement, Purchaser will have all of the rights of a
stockholder of the Company with respect to the Shares from and
after the date that Shares are issued to Purchaser until such time
as Purchaser disposes of the Shares.
5. Governing
Law . This Exercise Agreement shall be governed by
and construed in accordance with the laws of the State of
California, without giving effect to that body of laws pertaining
to conflict of laws.
6. Further
Assurances . The parties agree to execute such
further documents and instruments and to take such further actions
as may be reasonably necessary to carry out the purposes and intent
of this Exercise Agreement.
7. Entire
Agreement . The Plan, the Stock Option Agreement and
this Exercise Agreement, constitute the entire agreement and
understanding of the parties with respect to the subject matter of
this Exercise Agreement, and supersede all prior understandings and
agreements, whether oral or written, between or among the parties
hereto with respect to the specific subject matter hereof.
IN WITNESS WHEREOF, the Company has
caused this Exercise Agreement to be executed in triplicate by its
duly authorized representative and Purchaser has executed this
Exercise Agreement in triplicate as of the Effective Date,
indicated above.
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| INTERWOVEN,
INC. |
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PURCHASER |
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| (Please print name) |
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(Please print name) |
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| (Please print title) |
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| Address: |
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Address: |
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| Fax No.: |
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Fax No. |
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Phone No.: |
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[Signature page to Interwoven, Inc. Stock Option Exercise
Agreement]
INTERWOVEN, INC.
2008 EQUITY INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK AWARD
GRANT NUMBER:
Unless
otherwise defined herein, the terms defined in the Company’s
2008 Equity Incentive Plan (the “Plan” )
shall have the same meanings in this Notice of Restricted Stock
Award (the “ Notice ”).
You
(“ Participant ”) have been granted an
award of Restricted Shares of Common Stock of Interwoven, Inc. (the
“ Company ”) under the Plan subject to
the terms and conditions of the Plan, this Notice and the attached
Restricted Stock Agreement (the “ Restricted Stock
Purchase Agreement ”).
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Total Number of
Restricted Shares Awarded :
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Fair Market Value
per Restricted Share :
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$ |
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Total Fair Market
Value of Award :
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$ |
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Purchase Price
per Restricted Share :
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$ |
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Total Purchase
Price for all Restricted Shares :
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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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Subject to the limitations set forth
in this Notice, the Plan and the Restricted Stock Purchase
Agreement, the Restricted Shares will vest and the right of
repurchase shall lapse, in whole or in part, in accordance with the
following schedule: |
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[INSERT VESTING SCHEDULE] |
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You
understand that your employment or consulting relationship with the
Company is for an unspecified duration, can be terminated at any
time (i.e., is “at-will”), and that nothing in this
Notice, the Restricted Stock Agreement or the Plan changes the
at-will nature of that relationship. Participant acknowledges that
the vesting of the Restricted Shares pursuant to this Notice is
earned only by continuing service as an Employee, Director or
Consultant of the Company. You also understand that this Notice is
subject to the terms and conditions of both the Restricted Stock
Agreement and the Plan, both of which are incorporated herein by
reference. You have read both the Restricted Stock Agreement and
the Plan. If the Restricted Stock Purchase Agreement is not
executed by you within thirty (30) days of the Date of Grant
above, then this grant shall be void.
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| INTERWOVEN,
INC. |
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RECIPIENT: |
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Please Print Name |
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INTERWOVEN, INC.
2008 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this
“ Agreement ”) is made as of
, 20___ by and between Interwoven, Inc., a California corporation
(the “ Company ”), and
(“ Participant ”) pursuant to the
Company’s 2008 Equity Incentive Plan (the “
Plan ”). Unless otherwise defined herein, the
terms defined in the Plan shall have the same meanings in this
Agreement.
1. Sale of
Stock . Subject to the terms and conditions of this
Agreement, on the Purchase Date (as defined below) the Company will
issue and sell to Participant, and Participant agrees to purchase
from the Company the number of Shares shown on the Notice of
Restricted Stock Award at a purchase price of $
per Share. The per Share purchase price of the Shares shall be not
less than the par value of the Shares as of the date of the offer
of such Shares to the Participant. The term “Shares”
refers to the purchased Shares and all securities received in
replacement of or in connection with the Shares pursuant to stock
dividends or splits, all securities received in replacement of the
Shares in a recapitalization, merger, reorganization, exchange or
the like, and all new, substituted or additional securities or
other properties to which Participant is entitled by reason of
Participant’s ownership of the Shares.
2. Time and Place
of Exercise . The purchase and sale of the Shares
under this Agreement shall occur at the principal office of the
Company simultaneously with the execution of this Agreement by the
parties, or on such other date as the Company and Participant shall
agree (the “ Purchase Date ”). On the
Purchase Date, the Company will issue in Participant’s name a
stock certificate representing the Shares to be purchased by
Participant against payment of the purchase price therefor by
Participant by (a) check made payable to the Company,
(b) cancellation of indebtedness of the Company to
Participant, (c) Participant’s personal services that
the Committee has determined have already been rendered to the
Company and have a value not less than aggregate par value of the
Shares to be issued Participant, or (d) a combination of the
foregoing.
3. Restrictions
on Resale . By signing this Agreement, Participant
agrees not to sell any Shares acquired pursuant to the Plan and
this Agreement at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise or sale.
This restriction will apply as long as Participant is providing
service to the Company or a Subsidiary of the Company.
3.1 Repurchase Right on Termination Other Than for
Cause . For the purposes of this Agreement, a “
Repurchase Event ” shall mean an occurrence of
one of the following:
(i) termination of Participant’s service,
whether voluntary or involuntary and with or without cause;
(ii) resignation, retirement or death of Participant;
or
(iii) any attempted transfer by Participant of the
Shares, or any interest therein, in violation of this
Agreement.
Upon the
occurrence of a Repurchase Event, the Company shall have the right
(but not an obligation) to purchase the Shares of Participant at a
price equal to the Purchase Price per Share (the “
Repurchase Right ”). The Repurchase Right shall
lapse in accordance with the vesting schedule set forth in the
Notice
1
of
Restricted Stock Award. For purposes of this Agreement, “
Unvested Shares ” means Stock pursuant to which
the Company’s Repurchase Right has not lapsed.
3.2 Exercise of Repurchase Right . Unless the Company
provides written notice to Participant within 90 days from the
date of termination of Participant’s service to the Company
that the Company does not intend to exercise its Repurchase Right
with respect to some or all of the Unvested Shares, the Repurchase
Right shall be deemed automatically exercised by the Company as of
the 90th day following such termination, provided that the Company
may notify Participant that it is exercising its Repurchase Right
as of a date prior to such 90th day. Unless Participant is
otherwise notified by the Company pursuant to the preceding
sentence that the Company does not intend to exercise its
Repurchase Right as to some or all of the Unvested Shares,
execution of this Agreement by Participant constitutes written
notice to Participant of the Company’s intention to exercise
its Repurchase Right with respect to all Unvested Shares to which
such Repurchase Right applies at the time of Termination of
Participant. The Company, at its choice, may satisfy its payment
obligation to Participant with respect to exercise of the
Repurchase Right by either (A) delivering a check to Participant in
the amount of the purchase price for the Unvested Shares being
repurchased, or (B) in the event Participant is indebted to
the Company, canceling an amount of such indebtedness equal to the
purchase price for the Unvested Shares being repurchased, or
(C) by a combination of (A) and (B) so that the
combined payment and cancellation of indebtedness equals such
purchase price. In the event of any deemed automatic exercise of
the Repurchase Right by canceling an amount of such indebtedness
equal to the purchase price for the Unvested Shares being
repurchased, such cancellation of indebtedness shall be deemed
automatically to occur as of the 90th day following termination of
Participant’s employment or consulting relationship unless
the Company otherwise satisfies its payment obligations. As a
result of any repurchase of Unvested Shares pursuant to the
Repurchase Right, the Company shall become the legal and beneficial
owner of the Unvested Shares being repurchased and shall have all
rights and interest therein or related thereto, and the Company
shall have the right to transfer to its own name the number of
Unvested Shares being repurchased by the Company, without further
action by Participant.
3.3 Acceptance of Restrictions . Acceptance of the
Shares shall constitute Participant’s agreement to such
restrictions and the legending of his or her certificates with
respect thereto. Notwithstanding such restrictions, however, so
long as Participant is the holder of the Shares, or any portion
thereof, he or she shall be entitled to receive all dividends
declared on and to vote the Shares and to all other rights of a
stockholder with respect thereto.
3.4 Non-Transferability of Unvested Shares . In
addition to any other limitation on transfer created by applicable
securities laws or any other agreement between the Company and
Participant, Participant may not transfer any Unvested Shares, or
any interest therein, unless consented to in writing by a duly
authorized representative of the Company. Any purported transfer is
void and of no effect, and no purported transferee thereof will be
recognized as a holder of the Unvested Shares for any purpose
whatsoever. Should such a transfer purport to occur, the Company
may refuse to carry out the transfer on its books, set aside the
transfer, or exercise any other legal or equitable remedy. In the
event the Company consents to a transfer of Unvested Shares, all
transferees of Shares or any interest therein will receive and hold
such Shares or interest subject to the provisions of this
Agreement, including, insofar as applicable, the Repurchase Right.
In the event of any purchase by the Company hereunder where the
Shares or interest are held by a transferee, the transferee shall
be obligated, if requested by the Company, to transfer the Shares
or interest to the Participant for consideration equal to the
amount to be paid by the Company hereunder. In the event the
Repurchase Right is deemed exercised by the Company, the Company
may deem any transferee to have transferred the Shares or interest
to Participant prior to their purchase by the Company, and payment
of the purchase price by the Company to such transferee shall be
deemed to satisfy Participant’s obligation to pay such
transferee for such Shares or interest, and also to satisfy the
Company’s obligation to pay Participant for such Shares or
interest.
2
3.5 Assignment . The Repurchase Right may be assigned
by the Company in whole or in part to any persons or
organization.
4. Restrictive
Legends and Stop Transfer Orders .
4.1 Legends . The certificate or certificates
representing the Shares shall bear the following legend (as well as
any legends required by applicable state and federal corporate and
securities laws):
THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND
THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
4.2 Stop-Transfer Notices . Participant agrees that,
in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop
transfer” instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
4.3 Refusal to Transfer . The Company shall not be
required (i) to transfer on its books any Shares that have
been sold or otherwise transferred in violation of any of the
provisions of this Agreement or (ii) to treat as the owner or
to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such Shares shall have been so
transferred.
5. No Rights as
Employee, Director or Consultant . Nothing in this
Agreement shall affect in any manner whatsoever the right or power
of the Company, or a Parent or Subsidiary of the Company, to
terminate Participant ‘ s service,
for any reason, with or without cause.
6.
Miscellaneous .
6.1 Acknowledgement . The Company and Participant
agree that the Restricted Shares are granted under and governed by
the Notice, this Agreement and by the provisions of the Plan
(incorporated herein by reference). Participant:
(i) acknowledges receipt of a copy of the Plan and the Plan
prospectus, (ii) represents that Participant has carefully
read and is familiar with their provisions, and (iii) hereby
accepts the Restricted Shares subject to all of the terms and
conditions set forth herein and those set forth in the Plan and the
Notice.
6.2 Entire Agreement; Enforcement of Rights . This
Agreement, the Plan and the Notice constitute the entire agreement
and understanding of the parties relating to the subject matter
herein and supersede all prior discussions between them. Any prior
agreements, commitments or negotiations concerning the purchase of
the Shares hereunder are superseded. No modification of or
amendment to this Agreement, nor any waiver of any rights under
this Agreement, shall be effective unless in writing and signed by
the parties to this Agreement. The failure by either party to
enforce any rights under this Agreement shall not be construed as a
waiver of any rights of such party.
6.3 Compliance with Laws and Regulations . The
issuance of Shares will be subject to and conditioned upon
compliance by the Company and Participant with all applicable state
and federal laws and regulations and with all applicable
requirements of any stock exchange or automated quotation system on
which the Company’s Common Stock may be listed or quoted at
the time of such issuance or transfer.
3
6.4 Governing Law; Severability . If one or more
provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in
good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then
(i) such provision shall be excluded from this Agreement,
(ii) the balance of this Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of this
Agreement shall be enforceable in accordance with its terms. This
Agreement and all acts and transactions pursuant hereto and the
rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State
of California, without giving effect to principles of conflicts of
law.
6.5 Construction . This Agreement is the result of
negotiations between and has been reviewed by each of the parties
hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of all of the parties
hereto, and no ambiguity shall be construed in favor of or against
any one of the parties hereto.
6.6 Notices . Any notice to be given under the terms
of the Plan shall be addressed to the Company in care of its
principal office, and any notice to be given to the Participant
shall be addressed to such Participant at the address maintained by
the Company for such person or at such other address as the
Participant may specify in writing to the Company.
6.7 Counterparts . This Agreement may be executed in
two or more counterparts, each of which shall he deemed an original
and all of which together shall constitute one instrument.
6.8 U.S. Tax Consequences . Upon vesting of Shares,
Participant will include in taxable income the difference between
the fair market value of the vesting Shares, as determined on
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