NEW FOCUS, INC.
EXHIBIT 10.21
NEW FOCUS, INC.
2000 STOCK PLAN
(Executive/Change of Control Form)
Unless otherwise defined herein, the capitalized terms used in this Stock Option Agreement (this “Option Agreement”) shall have the same defined meanings as defined in the 2000 Stock Plan (the “Plan”).
I. NOTICE OF STOCK OPTION GRANT
<<Name>>
<<Address>>
You have been granted an option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows:
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 Granted |
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Total Exercise Price |
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Type of Option: |
Incentive Stock Option | |||
X |
Nonstatutory Stock Option | |||
Term/Expiration Date: |
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This Option shall be exercisable, in whole or part, according to the following vesting schedule:
[INSERT VESTING SCHEDULE], subject to Optionee continuing to be an Employee on such dates.
This Option may be exercised for a period of ninety (90) days after Optionee ceases to be a Service Provider; provided, however, that (i) in the event of Optionee’s voluntary termination as an Employee following a Good Reason Event (as defined in Section 7(d) below) or Optionee’s involuntary termination as an Employee without Cause (as defined in Section 7(b) below) at any time within the 3-month period prior to or the 18-month period following a Change of Control (as defined in Section 7(c) below), (ii) in the event of Optionee’s voluntary termination as an Employee following a Good Reason Event or Optionee’s involuntary termination as an Employee without Cause at any time within the 12-month period following a Buy-Side Event (as defined in Section 7(a) below), or (iii) upon the death or Disability of Optionee, this Option may be exercised for twelve (12) months after Optionee ceases to be a Service Provider. Notwithstanding the foregoing, in no event shall this Option be exercised later than the Term/Expiration Date as provided above. To the extent there is any inconsistency between the Plan and the foregoing provisions set forth above in this paragraph, the provisions of this paragraph shall control.
If designated in the Notice of Grant 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 Incentive Stock Option, to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall be treated as a Nonstatutory Stock Option.
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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 Optionee on the date the Option is exercised with respect to such Exercised Shares.
Payment of the aggregate Exercise Price shall be by any of the following, or a combination thereof, at the election of Optionee:
(a) cash; or
(b) check; or
(c) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; or
(d) surrender of other Shares which (i) in the case of Shares acquired upon exercise of an option, have been owned by 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.
4. 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 Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of Optionee.
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 Plan and the terms of this Option Agreement.
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(c) Change of Control. “Change of Control” shall mean the occurrence of any of the following events:
(i) the acquisition by any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company) of the “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total voting power represented by the Company’s then outstanding voting securities;
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(ii) a merger or consolidation of the Company with any other corporation, or the sale of all or substantially all the assets of the Company, a result of which merger, consolidation or sale, the voting securities of the Company outstanding immediately prior thereto do not continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity, including the parent corporation of such surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger, consolidation or sale;
(iii) the approval of a plan of complete liquidation or dissolution of the Company; or
(iv) a change in the composition of the Board occurring within a 12-month period, as a result of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors” shall mean directors who either (A) are members of the Board as of the date of this Option Agreement, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of directors whose election was neither in connection with any transactions described in subsections (i) or (ii), nor in connection with an actual or threatened proxy contest relating to the election of directors to the Board.
(i) a reduction of five percent (5%) or more of Optionee’s compensation (including base salary and any non-discretionary and objective standard incentive payments or bonus awards, but excluding facilities, fringe benefits and prerequisites included in Subsection 7(d)(iii) below);
(ii) a reduction of the scope or nature of Optionee’s duties and/or responsibilities, it being understood that the fact alone that Optionee’s duties and/or responsibilities are conducted at the Company level following a Change of Control, rather than at the combined entity level, shall constitute a Good Reason Event;
(iii) a substantial reduction, without good business reasons, of the facilities, fringe benefits or perquisites available to Optionee immediately prior to such reduction (good business reasons include reductions to make such facilities, fringe benefits or perquisites consistent with the practice of the acquiring company);
(iv) the relocation of Optionee’s primary workplace to a location more than fifty (50) miles away from his/her workplace in effect immediately prior to such relocation; or
(v) the failure of the Company to obtain the express assumption of this Option Agreement upon a Change of Control, including the terms of Section 6 and this Section 7, by an acquiring corporation.
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9. Entire Agreement; Governing Law.
The Plan is incorporated herein by reference. The Plan and this Option Agreement, including the exhibits hereto, constitute 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 Optionee’s interest except by means of a writing signed by the Company and Optionee. This Option Agreement is governed by the internal substantive laws, but not the choice of law rules, of California.
10. NO GUARANTEE OF CONTINUED EMPLOYMENT.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS AN EMPLOYEE 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 OPTION AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT OR OTHER SERVICE PROVIDER RELATIONSHIP WITH THE COMPANY 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 EMPLOYMENT OR OTHER SERVICE PROVIDER RELATIONSHIP WITH THE COMPANY AT ANY TIME, WITH OR WITHOUT CAUSE.
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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 Plan and this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Plan and Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Option Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below.
OPTIONEE: |
NEW FOCUS, INC. | |||||||
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Signature |
By: |
Xxxxxxx X. Xxxxx, Xx. Vice President, Chief Financial Officer, and Secretary | ||||||
<<Name>> |
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Print Name |
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<<Address1>> |
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Residence Address |
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