Exhibit 4.2
NUANCE COMMUNICATIONS, INC.
FORM OF STAND-ALONE STOCK OPTION AGREEMENT
I. NOTICE OF STOCK OPTION GRANT
______________
You, __________, (the "Optionee"), have been granted a Nonstatutory Stock
Option to purchase Common Stock of the Company, subject to the terms and
conditions of this Agreement, as follows:
Grant Number ________
Date of Agreement/Grant April __, 2007
Vesting Commencement Date April __, 2007
Exercise Price per Share $_______
Total Number of Shares Granted ________
Total Exercise Price $________
Type of Option: ___ Incentive Stock Option
_X_ Nonstatutory Stock Option
Term/Expiration Date: April __, 20__
Vesting Schedule:
Subject to accelerated vesting as set forth below, this Option may be
exercised, in whole or in part, in accordance with the vesting schedule attached
hereto as Exhibit A.
Termination Period:
This Option may be exercised for 30 (THIRTY) DAYS after (i) Optionee
voluntarily ceases to be a Service Provider or (ii) Optionee's employment is
terminated for cause. In the event of an involuntary termination (not for
cause), this option may be exercised 90 (NINETY) DAYS after Optionee ceases to
be a Service Provider. Upon the death or Disability of the Optionee, this Option
may be exercised for SIX MONTHS after Optionee ceases to be a Service Provider.
If there is a change of control transaction and Optionee's employment is
terminated within twelve months following the change of control transaction by
the Company for a reason other than cause, death or disability, and Optionee
executes a severance agreement specified by the Company (including, among other
things, a full release of claims and non-competition agreement), Optionee will
receive immediate acceleration of any unvested stock options.
In no event shall this Option be exercised later than the Term/Expiration
Date as provided above.
II. AGREEMENT
A. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as
shall be responsible for administering the Company's equity compenstation
plans.
(b) "Agreement" means this stock option agreement between the
Company and Optionee evidencing the terms and conditions of this Option.
(c) "Applicable Laws" means the requirements relating to the
administration of equity-based awards under U.S. state corporate laws,
U.S. federal and state securities laws, the Code, any stock exchange or
quotation system on which the Common Stock is listed or quoted and the
applicable laws of any foreign country or jurisdiction that may apply to
this Option.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code herein will be a reference to any
successor or amended section of the Code.
(f) "Committee" means a committee of Directors appointed by the
Board.
(g) "Common Stock" means the common stock of the Company.
(h) "Company" means Nuance Communications, Inc. a Delaware
corporation. With respect to the definitions of the Performance Goals, the
Committee may determine that "Company" means Nuance Communications, Inc.
and its consolidated subsidiaries.
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(i) "Consultant" means any person, including an advisor, engaged by
the Company or a Parent or Subsidiary to render services to such entity.
(j) "Director" means a member of the Board.
(k) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(l) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company.
Neither service as a Director nor payment of a director's fee by the
Company shall be sufficient to constitute "employment" by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(n) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation
the Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system on the day of
determination, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the last
market trading day on the day of determination, as reported in The
Wall Street Journal or such other source as the Administrator deems
reliable; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by
the Administrator.
(o) "Nonstatutory Stock Option" means an Option that by its terms
does not qualify or is not intended to qualify as an Incentive Stock
Option.
(p) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(q) "Option" means this Nonstatutory Stock Option.
(r) "Optionee" means ________ or his successor.
(s) "Optioned Stock" means the Common Stock subject to this Option.
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(t) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(u) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3.
(v) "Section 16(b)" means Section 16(b) of the Exchange Act.
(w) "Service Provider" means an Employee, Director or Consultant.
(x) "Share" means a share of the Common Stock, as adjusted in
accordance with Section J Part II of this Agreement.
(y) "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
X. Xxxxx of Option.
The Compensation Committee of the Board of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement an Option to purchase the number of Shares, as set forth in the Notice
of Grant, at the Exercise Price per share set forth in the Notice of Grant,
subject to the terms and conditions of this Agreement.
C. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of this Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached as Exhibit B (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. The
Exercise Notice shall be completed by the Optionee and delivered to the Stock
Plan Administrator of the Company (or its designee). The Exercise Notice shall
be accompanied by payment of the aggregate Exercise Price as to all Exercised
Shares (and the amount of any income or employment tax the Company is required
by law to withhold by reason of such exercise). 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 (and any withholding tax).
No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Exercised Shares shall be considered
transferred to the Optionee on the date the Option is exercised with respect to
such Exercised Shares.
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D. 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:
1. cash; or
2. check; or
3. consideration received by the Company under a cashless exercise
program implemented by the Company in connection with this Agreement; or
4. 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.
E. 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 the Optionee. The terms of this Agreement shall be
binding upon the executors, administrators, heirs, successors and assigns of the
Optionee.
F. 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 terms of this Agreement.
G. Tax Consequences.
Some of the federal tax consequences relating to this Option, as of
the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
H. Exercising the Option.
1. Nonstatutory Stock Option. The Optionee may incur regular federal
income tax liability upon exercise of a NSO. 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 Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
Employee or a former Employee, the Company will be required to withhold from his
or her 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.
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2. Disposition of Shares.
(a) NSO. If the Optionee 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.
I. Termination of Relationship as a Service Provider.
1. Optionee Ceases to be a Service Provider. If the Optionee ceases
to be a Service Provider, other than upon the Optionee's death or Disability,
the Optionee may exercise his or her Option within such period of time as is
specified in the Notice of Grant above to the extent that the Option is vested
on the date of termination (but in no event later than the expiration of the
term of such Option as set forth in this Agreement). If, after termination, the
Optionee does not exercise the Option within the time specified, the Option
shall terminate, and the Shares covered by such Option terminate.
2. Disability of Optionee. If Optionee ceases to be a Service
Provider as a result of the Optionee's Disability, the Optionee may exercise
this Option within such period of time as is specified in the Notice of Grant to
the extent the Option is vested on the date of termination (but in no event
later than the expiration of the term of such Option as set forth in this
Agreement). If, after termination, the Participant does not exercise his or her
Option within the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall terminate.
3. Death of Optionee. If Optionee dies while a Service Provider, the
Option may be exercised following the Optionee's death within such period of
time as specified in the Notice of Grant (but in no event may the Option be
exercised later than the expiration of the term of such Option as set forth in
this Agreement), by the Optionee's estate or by a person who acquires the right
to exercise the Option by bequest or inheritance, but only to the extent that
the Option is vested on the date of death. The Option may be exercised by the
executor or administrator of the Optionee's estate or, if none, by the person(s)
entitled to exercise the Option under the Optionee's will or the laws of descent
or distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
terminate.
4. Buyout Provisions. The Administrator may at any time offer to buy
out for a payment in cash or Shares an Option previously granted based on such
terms and conditions as the Administrator shall establish and communicate to the
Participant at the time that such offer is made.
J. Adjustments Upon Changes in Capitalization, Dissolution, Merger or
Asset Sale.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number and class of Shares that may be
delivered under this Agreement and/or the number, class, and price of Shares
covered under this Agreement, shall be proportionately adjusted for any increase
or decrease in the number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Shares, or
any other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as
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expressly provided herein, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of Shares subject this Agreement.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify the
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for the Optionee to
have the right to exercise his Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Shares as
to which the Option would not otherwise be exercisable. To the extent it has not
been previously exercised, the Option will terminate immediately prior to the
consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, the Option shall be assumed or an equivalent option substituted
by the successor corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor corporation refuses to assume or
substitute for the Award, the Optionee shall fully vest in and have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which would not otherwise be vested or exercisable. If the Option becomes fully
vested and exercisable in lieu of assumption or substitution in the event of a
merger or sale of assets, the Administrator shall notify the Optionee in writing
or electronically that the Option will be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the Option will
terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following the merger or
sale of assets, the Option confers the right to purchase or receive, for each
Share subject of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders of
Common Stock for each Share held on the effective date of the transaction (and
if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock to be solely common stock of the successor corporation or its
Parent equal in fair market value to the per Share consideration received by
holders of Common Stock in the merger or sale of assets.
K. Administration of the Agreement. The Administrator shall have the
authority, in its discretion, to construe and interpret the terms of this
Agreement and the Option granted pursuant thereto, to prescribe, amend and
rescind the rules and regulations relating to the Agreement, to determine the
Fair Market Value of the Common Stock, and to make all other determinations
deemed necessary or advisable for administering the Agreement. The
Administrator's decisions, determinations and interpretations shall be final and
binding on the Optionee and all other persons.
L. Notices. Any notice to be given to the Company hereunder shall be in
writing and shall be addressed to the Company at its then current principal
executive office or to such other address as the Company may hereafter designate
to the Optionee by notice as provided in this Section. Any notice to be given to
the Optionee hereunder shall be addressed to the Optionee at the address set
forth beneath his signature hereto, or at such other address as the Optionee may
hereafter
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designate to the Company by notice as provided herein. A notice shall be deemed
to have been duly given when personally delivered or mailed by registered or
certified mail to the party entitled to receive it.
M. No Effect on Employment or Service. This Agreement will not confer upon
Optionee's right with respect to continuing the Optionee's relationship as a
Service Provider with the Company, nor will this Agreement interfere in any way
with the Optionee's right or the Company's right to terminate such relationship
at any time, with or without cause, to the extent permitted by Applicable Laws.
N. Entire Agreement; Governing Law. This Agreement constitutes 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 Delaware.
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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 (AND NOT THROUGH THE ACT OF BEING HIRED,
BEING GRANTED AN OPTION OR PURCHASING 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 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.
By your signature and the signature of the Company's representative below,
you and the Company agree that this Option is granted under and governed by the
terms and conditions of the this Agreement. Optionee has reviewed this Agreement
in its entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Agreement and fully understands all provisions of the Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions relating to this
Agreement. Optionee further agrees to notify the Company upon any change in the
residence address indicated below.
OPTIONEE: NUANCE COMMUNICATIONS, INC.
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Signature By
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Title
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