NET PERCEPTIONS, INC. STOCK OPTION AGREEMENT
NET
PERCEPTIONS, INC.
1999
EQUITY INCENTIVE PLAN
STOCK
OPTION AGREEMENT (the “Agreement”) made as of this «numberdate»
day of
«month»,
«year»,
by and
between Net Perceptions, Inc., a Delaware corporation, having its principal
office at Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
“Company”), and «FirstName»«LastName»,
an
individual residing in «citystate» (the “Optionee”). Capitalized terms not
defined herein shall have the meanings ascribed to them in the Net Perceptions,
Inc. 1999 Equity Incentive Plan.
WHEREAS,
the
Company has heretofore adopted the Net Perceptions, Inc. 1999 Equity Incentive
Plan (the “Plan”) for the benefit of Employees, Consultants, and Outside
Directors of the Company, which Plan has been approved by the Company’s
stockholders; and
WHEREAS,
the
Optionee is a valued and trusted [Employee/Outside
Director of / Consultant to]
the
Company and the Company believes it to be in the best interests of the Company
to secure the future services of the Optionee by providing the Optionee with
an
inducement to remain an [Employee/Outside
Director of / Consultant to]
the
Company through the grant of an option to acquire an ownership interest in
the
Company.
NOW,
THEREFORE, the
parties agree as follows:
1. Option
Grant.
Subject
to the provisions hereinafter set forth and the terms and conditions of the
Plan, the Company hereby grants to the Optionee, as of «grantdate»
(the
“Grant Date”), the right, privilege and option (the “Option”) to purchase all or
any part of an aggregate of «amountofoptions»
shares
(the “Shares”) of common stock of the Company, $0.0001 par
value
per share (the “Common Stock”), such number being subject to adjustment as
provided in the Plan. To the extent applicable, this Option is intended to
qualify as an “incentive stock option” (“ISO”) within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the “Code”), to the extent
permitted under Section 422 of the Code.
2. Exercise
Price.
Subject
to adjustment as provided in the Plan, the purchase price per Share of Common
Stock as to which this Option is exercised (the “Exercise Price”) shall be
$«shareprice»,
the
Fair Market Value of such Shares on the Grant Date.
3. Exercise
of Option.
The term
of the Option shall be for a period of ten (10) years from the Grant Date and
shall expire without further action being taken at 5:00 p.m., «expirationdate»,
subject
to earlier termination as provided in Section 5 hereof (the “Expiration Date”).
The Option may be exercised at any time, or from time to time, prior to the
Expiration Date (or such additional period as may be permitted under the Plan)
as to any part or all of the Shares covered by the Option, pursuant to the
vesting schedule contained in Section 4.1 hereof.
4. Vesting
and Lockup Release Schedule.
4.1 Vesting
Date.
The
Shares into which this Option is exercisable shall vest in accordance with
the
following schedule as determined by the Committee:
|
Vesting
Date
|
Number
of
ISOs
|
Number
of
Non-Qualified
|
Total
Number
of
Shares
|
|||
|
<<Insert
Date>>
|
«Total_ISOs»
|
«Total_NSOs»
|
«amountofoptions»
|
4.2 Shares
that are vested pursuant to the schedule set forth in Section 4.1 hereof are
“Vested Shares.”
5. Termination.
5.1 Termination
for Any Reason Except Death, Disability or Cause.
If
Optionee is Terminated for any reason (including if the Optionee voluntarily
terminates [employment by/services for] the Company) except Optionee’s death,
Disability or Cause, then this Option, to the extent (and only to the extent)
that it is vested in accordance with the schedule set forth in Section 4.1
hereof on the Termination Date, may be exercised by Optionee no later than
three
(3) months after the Termination Date, (or such longer time period not exceeding
five (5) years as may be determined by the Committee, with any exercise beyond
three (3) months after the Termination Date deemed to be a NSO), but in any
event no later than the Expiration Date.
5.2 Termination
Because of Death or Disability.
If
Optionee is Terminated because of death or Disability of Optionee, then this
Option, to the extent that it is vested in accordance with the schedule set
forth in Section 4.1 hereof on the Termination Date, may be exercised by
Optionee (or Optionee’s legal representative or authorized assignee) no later
than twelve (12) months after the Termination Date (or such longer time period
not exceeding five (5) years as may be determined by the Committee, with any
such exercise beyond twelve (12) months after the Termination Date when the
Termination is for Participant’s death or Disability, deemed to be a NSO), but
in any event no later than the Expiration Date. Any exercise after three months
after the Termination Date when the Termination is for any reason other than
Optionee’s disability, within the meaning of Section 22(e)(3) of the Code, shall
be deemed to be the exercise of a nonqualified stock option.
5.3 Termination
for Cause.
If an
Optionee is terminated for Cause, neither the Optionee, the Optionee’s estate
nor such other person who may then hold the Option shall be entitled to exercise
any Option with respect to any Shares whatsoever, after termination of service,
whether or not after termination of service the Optionee may receive payment
from the Company or Subsidiary for vacation pay, for services rendered prior
to
termination, for services rendered for the day on which termination occurs,
for
salary in lieu of notice, or for any other benefits. In making such
determination, the Committee shall give the Optionee an opportunity to present
to the Committee evidence on his behalf. For the purpose of this paragraph,
termination of service shall be deemed to occur on the date when the Company
dispatches notice or advice to the Optionee that Optionee’s service is
terminated.
For
purposes of this Agreement, Termination for Cause means that the Company has
cause to terminate an Optionee’s employment or service under any existing
employment, consulting or any other agreement between the Optionee and the
Company or, if such an agreement does not exist, upon finding that (i) the
Optionee has ceased to perform his duties (other than as a result of his
incapacity due to physical or mental illness or injury), which constitutes
an
intentional or extended neglect of his/her duties, (ii) the Optionee has engaged
or is about to engage in conduct materially injurious to the Company or (iii)
the Optionee has been convicted of a felony.
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For
purposes of this Agreement, “Disability” or “Disabled” means a disability,
whether temporary or permanent, partial or total, as determined in good faith
by
the Committee.
For
purposes of this Agreement, “Termination” or “Terminated” means, for purposes of
this Plan with respect to a Participant, that the Participant has for any reason
ceased to provide services as an Employee, Director, or Consultant to the
Company or a Subsidiary of the Company. An Employee will not be deemed to have
ceased to provide services in the case of (i) sick leave, (ii) military leave,
or (iii) any other leave of absence approved by the Committee, provided, that
such leave is for a period of not more than 90 days, unless re-employment upon
the expiration of such leave is guaranteed by contract or statute or unless
provided otherwise pursuant to formal policy adopted from time to time by the
Company and issued and promulgated to Employees in writing. In the case of
any
Employee on an approved leave of absence, the Committee may make such provisions
respecting suspension of vesting of the Award while on leave from the employ
of
the Company or a Subsidiary as it may deem appropriate, except that in no event
may an Option be exercised after the expiration of the term set forth in the
option agreement. The Committee will have sole discretion to determine whether
a
Participant has ceased to provide services and the effective date on which
the
Participant ceased to provide services (the “Termination Date”).
5.4 No
Obligation to Employ.
Nothing
in the Plan or this Agreement shall confer on Optionee any right to continue
in
the employ of, or other relationship with, the Company, a Subsidiary or an
Affiliate, or limit in any way the right of the Company or any Affiliate or
Subsidiary of the Company to terminate Optionee’s employment or other
relationship at any time, with or without Cause. This Agreement does not
constitute an employment or other service contract. This Agreement does not
guarantee employment or other service for the length of time of the vesting
schedule or for any portion thereof as set forth herein.
6. Manner
of Exercise.
6.1 Stock
Option Exercise Procedures.
To
exercise this Option, Optionee (or in the case of exercise after Optionee’s
death, Optionee’s executor, administrator, heir or legatee, as the case may be)
must follow such exercise procedures as may be established by the Committee
from
time to time in its sole discretion. Such procedures may include requiring
that
the Optionee provide certain information including, inter alia, Optionee’s
election to exercise this Option, the number of Shares being purchased, any
restrictions imposed on the Shares and any representations, warranties and
agreements regarding Optionee’s investment intent and access to information as
may be required by the Company to comply with applicable securities laws. If
someone other than Optionee exercises this Option, then such person may be
required to submit documentation reasonably acceptable to the Company that
such
person has the right to exercise this Option.
6.2 Limitations
on Exercise.
This
Option may not be exercised unless such exercise is in compliance with all
applicable federal and state securities laws, as they are in effect on the
date
of exercise.
6.3 Payment.
An
exercise of this Option shall be accompanied by full payment of the aggregate
Exercise Price for the Shares being purchased (a) in cash (by check), or (b)
provided that a public market for the Company’s stock exists: (1) through a
“same day sale” commitment from Optionee and a broker-dealer that is a member of
the National Association of Securities Dealers (an “NASD Dealer”) whereby
Optionee irrevocably elects to exercise this Option and to sell a portion of
the
Shares so purchased to pay for the aggregate Exercise Price and whereby the
NASD
Dealer irrevocably commits upon receipt of such Shares to forward the aggregate
Exercise Price directly to the Company; or (2) through a “margin” commitment
from Optionee and an NASD Dealer whereby Optionee irrevocably elects to exercise
this Option and to pledge the Shares so purchased to the NASD Dealer in a margin
account as security for a loan from the NASD Dealer in the amount of the
aggregate Exercise Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the aggregate Exercise Price directly to
the
Company. Notwithstanding the foregoing, the Board of Directors or the Committee,
in their sole discretion, may allow for the full payment of the aggregate
Exercise Price for the Shares being purchased to be made by any other method
which is in accordance with the provisions of the Plan.
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6.4 Tax
Withholding.
Prior
to the issuance of the Shares upon exercise of this Option, Optionee must pay
or
provide for any applicable federal or state withholding obligations of the
Company. If the Committee permits, Optionee may provide for payment of
withholding taxes upon exercise of this Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld determined on the date that the amount of tax to be
withheld is to be determined. In such case, the Company shall issue the net
number of Shares to the Optionee by deducting the Shares retained from the
Shares issuable upon exercise.
6.5 Issuance
of Shares.
Provided that both the exercise procedures established by the Committee and
payment are in manner, form and substance satisfactory to the Company, and
upon
the Company’s request to counsel for the Company, the Company shall issue the
Shares registered in the name of Optionee, Optionee’s authorized assignee, or
Optionee’s legal representative, and shall deliver certificates representing the
Shares with the appropriate legends affixed thereto.
7. Notice
of Disqualifying Disposition of ISO Shares.
To the
extent this Option is an ISO, if Optionee sells or otherwise disposes of any
of
the Shares acquired pursuant to the ISO on or before the later of (a) the date
two (2) years after the Grant Date, and (b) the date one (1) year after transfer
of such Shares to Optionee upon exercise of this Option, then Optionee shall
immediately notify the Company in writing of such disposition.
8. Compliance
With Laws and Regulations.
The
exercise of this Option and the issuance and transfer of Shares to the Optionee
shall be subject to compliance by the Company and Optionee with (i) all
applicable requirements of federal and state securities laws, (ii) all
applicable requirements of any stock exchange on which the Company’s Common
Stock may be listed and (iii) any applicable policy of the Company regarding
the
trading of securities of the Company, each at the time of such issuance and
transfer. Optionee understands that the Company is under no obligation to
register or qualify the Shares with the Securities and Exchange Commission,
any
state securities commission or any stock exchange or market to effect such
compliance.
9. Nontransferability
of Option.
This
Option may not be transferred in any manner other than transfers by will or
by
the laws of descent and distribution or to members of the Optionee’s immediate
family, to trusts solely for the benefit of such immediate family members and
to
partnerships or limited liability companies in which such family members and/or
trusts are the only partners or members, as the case may be. For this purpose,
“immediate family” means the Optionee’s spouse, parents, children, stepchildren,
grandchildren and legal dependants. Any transfer of Options made under this
provision will not be effective until notice of such transfer is delivered
to
the Company. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of Optionee.
10. Privileges
of Stock Ownership.
Optionee
shall not have any of the rights of a stockholder with respect to any Shares
until the Shares are issued to Optionee.
11. Interpretation.
Any
dispute regarding the interpretation of this Agreement shall be submitted by
Optionee or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Optionee.
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12. Entire
Agreement.
The Plan
is incorporated herein by reference. This Agreement and the Plan and any
exercise procedures as may be established by the Committee constitute the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersede all prior understandings and agreements with respect
to such subject matter.
13. Notices.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to the Corporate Secretary of the
Company at its principal corporate offices. Any notice required to be given
or
delivered to Optionee shall be in writing and addressed to Optionee at the
address indicated above or to such other address as such party may designate
in
writing from time to time to the Company. All notices shall be deemed to have
been given or delivered upon: personal delivery; three (3) days after deposit
in
the United States mail by certified or registered mail (return receipt
requested); one (1) business day after deposit with any return receipt express
courier (prepaid); or one (1) business day after transmission by
facsimile.
14. Successors
and Assigns.
The
Company may assign any of its rights under this Agreement. This Agreement shall
be binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer set forth herein, this
Agreement shall be binding upon Optionee and Optionee’s heirs, executors,
administrators, legal representatives, successors and assigns.
15. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, applicable to agreements made and to be performed entirely
within such state, other than conflict of laws principles thereof directing
the
application of any law other than that of Delaware.
16. Acceptance.
Optionee
hereby acknowledges receipt of a copy of the Plan and this Agreement. Optionee
has read and understands the terms and provisions of the Plan, and accepts
this
Option subject to all the terms and conditions of the Plan and this Agreement.
This Option is subject to, and the Company and the Optionee agree to be bound
by, all of the terms and conditions of the Plan under which this Option was
granted, as the same shall have been amended, restated or otherwise modified
from time to time in accordance with the terms thereof. Pursuant to said Plan,
the Board of Directors of the Company, or the Committee is vested with final
authority to interpret and construe the Plan and this Option, and its present
form is available for inspection during the business hours by the Optionee
or
other persons entitled to exercise this Option at the Company’s principal
office. Optionee acknowledges that there may be adverse tax consequences upon
exercise of this Option or disposition of the Shares and that the Company has
advised Optionee to consult a tax advisor prior to such exercise or
disposition.
17. Covenants
of the Optionee
The
Optionee agrees (and for any heir, executor, administrator, legal
representative, successor, or assignee hereby agrees), as a condition upon
exercise of the Option granted hereunder:
(a) Upon
the
request of the Committee, to execute and deliver a certificate, in form
satisfactory to the Committee, certifying that the Shares being acquired upon
exercise of the Option are for such person’s own account for investment only and
not with any view to or present intention to resell or distribute the same.
The
Optionee hereby agrees that the Company shall have no obligation to deliver
the
Shares issuable upon exercise of the Option unless and until such certificate
shall be executed and delivered to the Company by the Optionee or any
successor.
(b) Upon
the
request of the Committee, to execute and deliver a certificate, in form
satisfactory to the Committee, certifying that any subsequent resale or
distribution of the Shares by the Optionee shall be made only pursuant to either
(i) a Registration Statement on an appropriate form under the Securities Act
of
1933, as amended (the “Securities Act”), which Registration Statement has become
effective and is current with regard to the Shares being sold, or (ii) a
specific exemption from the registration requirements of the Securities Act,
but
in claiming such exemption the Optionee shall, prior to any offer of sale or
sale of such Shares, obtain a prior favorable written opinion of counsel, in
form and substance satisfactory to counsel for the Company, as to the
application of such exemption thereto. The foregoing restriction contained
in
this subparagraph (b) shall not apply to (i) issuances by the Company so long
as
the Shares being issued are registered under the Securities Act and a prospectus
in respect thereof is current, or (ii) re-offerings of Shares by Affiliates
of
the Company (as defined in Rule 405 or any successor rule or regulation
promulgated under the Securities Act) if the Shares being re-offered are
registered under the Securities Act and a prospectus in respect thereof is
current.
5
(c) That
certificates evidencing Shares purchased upon exercise of the Option shall
bear
a legend, in form satisfactory to counsel for the Company, manifesting the
investment intent and resale restrictions of the Optionee described in this
Section.
(d) That
upon
exercise of the Option granted hereby, or upon sale of the Shares purchased
upon
exercise of the Option, as the case may be, the Company shall have the right
to
require the Optionee to remit to the Company, or in lieu thereof, the Company
may deduct, an amount of shares or cash sufficient to satisfy federal, state
or
local withholding tax requirements, if any, prior to the delivery of any
certificate for such Shares or thereafter, as appropriate.
18. Obligations
of the Company
18.1 Upon
the
exercise of this Option in whole or in part, the Company shall cause the
purchased Shares to be issued only when it shall have received the full payment
of the aggregate Exercise Price in accordance with the terms of this
Agreement.
18.2 The
Company
shall cause certificates for the Shares as to which the Option shall have been
exercised to be registered in the name of the person or persons exercising
the
Option, which certificates shall be delivered by the Company to the Optionee
only against payment of the full Exercise Price in accordance with the terms
of
this Agreement for the portion of the Option exercised.
18.3 In
the
event that the Optionee shall exercise this Option with respect to less than
all
of the Shares of Common Stock that may be purchased under the terms hereof,
the
Company shall issue to the Optionee a new Option, duly executed by the Company
and the Optionee, in form and substance identical to this Option, for the
balance of Shares of Common Stock then issuable pursuant to the terms of this
Option.
18.4 Notwithstanding
anything to the contrary contained herein, neither the Company nor its transfer
agent shall be required to issue any fraction of a Share of Common Stock in
connection with the exercise of this Option, and the Company shall, upon
exercise of this Option in whole or in part, issue the largest number of whole
Shares of Common Stock to which this Option is entitled upon such full or
partial exercise and shall return to the Optionee the amount of the aggregate
Exercise Price paid by the Optionee in respect of any fractional
Share.
18.5 The
Company
may endorse such legend or legends upon the certificates for Shares issued
to
the Optionee pursuant to the Plan and may issue such “stop transfer”
instructions to its transfer agent in respect of such Shares as, in its
discretion, it determines to be necessary or
appropriate
to: (i) prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act; (ii) implement the provisions
of the Plan and any agreement between the Company and the Optionee with respect
to such Shares; or (iii) permit the Company to determine the occurrence of
a
disqualifying disposition, as described in Section 421(b) of the Code, of Shares
transferred upon exercise of an incentive stock option granted pursuant to
this
Agreement and under the Plan.
6
18.6 The
Company shall pay all issue or transfer taxes with respect to the issuance
or
transfer of Shares to the Optionee, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by the Optionee, unless such Registration Statement under the
Securities Act has been filed by the Company for its own corporate purposes
(and
the Company so states) in which event the Optionee shall bear only such fees
and
expenses as are attributable solely to the inclusion of the Shares he or she
receives in the Registration Statement.
18.7 All
Shares issued following exercise of the Option and the payment of the Exercise
Price in accordance with the terms of this Agreement therefore shall be fully
paid and non-assessable to the extent permitted by law.
19. Miscellaneous
19.1 If
the
Optionee loses this Agreement representing the Option granted hereunder, or
if
this Agreement is stolen or destroyed, the Company shall, subject to such
reasonable terms as to indemnity as the Committee, in its sole discretion shall
require, enter into a new option agreement pursuant to which the Company shall
issue a new Option, in form and substance identical to this Option, and in
substitution for, the Option so lost, stolen or destroyed, and in the event
this
Agreement representing the Option shall be mutilated, the Company shall, upon
the surrender hereof, enter into a new option agreement pursuant to which the
Company shall issue a new Option, in form and substance identical to this
Option, and in substitution for, the Option so mutilated.
19.2 This
Agreement cannot be amended, supplemented or changed, and no provision hereof
can be waived, except by a written instrument making specific reference to
this
Agreement and signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought. A waiver of any right
derived hereunder by the Optionee shall not be deemed a waiver of any other
right derived hereunder.
19.3 This
Agreement may be executed in any number of counterparts, but all counterparts
will together constitute but one agreement.
19.4 In
the
event of a conflict between the terms and conditions of this Agreement and
the
Plan, the terms and conditions of the Plan shall govern.
19.5 Any
dispute
regarding the interpretation of this Agreement shall be submitted by Optionee
or
the Company to the Committee for review. The resolution of such a dispute by
the
Committee shall be final and binding on the Company and Optionee.
7
IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be executed in duplicate by its duly
authorized representative and Optionee has executed this Agreement in duplicate
as of the Grant Date.
| NET PERCEPTIONS, INC. | ||
| |
|
|
| By: | ||
| Name: | ||
|
Title:
|
||
| OPTIONEE: | ||
| «FirstName»«LastName» | ||
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