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EXHIBIT 10.23
CLICKOVER, INC.
STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
(A) Name of Optionee: `
(B) Grant Date:
(C) Number of Shares:
(D) Exercise Price:
(E) Vesting Base Date:
(F) Effective Date:
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), is
made and entered into as of the date set forth in Item F above (the "Effective
Date") between ClickOver, Inc., a California corporation (the "Company") and the
person named in Item A above ("Optionee).
THE PARTIES AGREE AS FOLLOWS:
1. Grant of Option; Vesting Base Date.
1.1 Grant. The Company hereby grants to Optionee
pursuant to the Company's Stock Option Plan (the "Plan"), a copy of which is
attached to this Agreement as Exhibit 1, a nonqualified stock option (the "NQO")
to purchase all or any part of an aggregate of the number of shares (the NQO
Shares") of the Company's Common Stock (as defined in the Plan) listed in Item C
above on the terms and conditions set forth herein and in the Plan, the terms
and conditions of the Plan being hereby incorporated into this Agreement by
reference.
1.2 Vesting Base Date. The parties hereby establish
the date set forth in Item E above as the Vesting Base Date (as defined in
Section 5.1 below).
2. Exercise Price. The exercise price for purchase of each
share of Common Stock covered by this NQO shall be the price set forth in Item D
above.
3. Term. Unless otherwise specified on Exhibit 3 attached
hereto, if any (the absence of such exhibit indicating that no such exhibit was
intended), this NQO shall expire as provided in Section 6.1.12 of the Plan.
4. Adjustment of NQOS. The Company shall adjust the number
and kind of shares and the exercise price thereof in certain circumstances in
accordance with the provisions of Section 6.1.1 of the Plan.
5. Exercise of Options.
5.1 Vesting; Time of Exercise. This NQO shall be
exercisable according to the schedule set forth on Exhibit 5.1 attached hereto.
Such schedule shall commence as of the date set forth in Item (E) above (the
"Vesting Base Date").
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5.2 Exercise After Termination of Status as an
Employee, Director or Consultant. In the event of termination of Optionee's
continuous status as an employee, director or consultant, this NQO may be
exercised only in accordance with the provisions of Section 6.1.7 of the Plan.
5.3 Manner of Exercise. Optionee may exercise this
NQO, or any portion of this NQO, by giving written notice to the Company at its
principal executive office, to the attention of the officer of the Company
designated by the Plan Administrator, accompanied by a copy of the Stock option
Plan Stock Purchase Agreement in substantially the form attached hereto as
Exhibit 5.3 executed by Optionee (or at the option of the Company such other
form of stock purchase agreement as shall then be acceptable to the Company),
payment of the exercise price and payment of any applicable withholding or
employment taxes. The date the Company receives written notice of an exercise
hereunder accompanied by payment will be considered as the date this NQO was
exercised.
5.4 Payment. Except as provided in Exhibit 5.4
attached hereto, if any (the absence of such exhibit indicating that no exhibit
was intended), payment may be made for NQO Shares purchased at the time written
notice of exercise of the NQO is given to the Company, by delivery of cash,
check, previously owned shares of Common Stock (provided that delivery of
previously owned shares may not be made other than once in any six-month
period), or a full recourse promissory note equal to up to 90% of the exercise
price and payable over no more than five years. The proceeds of any payment
shall constitute general funds of the Company.
5.5 Delivery of Certificate. Promptly after receipt
of written notice of exercise of the NQO, the Company shall, without stock issue
or transfer taxes to the Optionee or other person entitled to exercise, deliver
to the Optionee or other person a certificate or certificates for the requisite
number of NQO Shares. An Optionee or transferee of an Optionee shall not have
any privileges as shareholder with respect to any NQO Shares covered by the
option until the date of issuance of a stock certificate.
6. Nonassignability of NQO. This NQO is not assignable or
transferable by Optionee except by will or by the laws of descent and
distribution. During the life of Optionee, the NQO is exercisable only by the
Optionee. Any attempt to assign, pledge, transfer, hypothecate or otherwise
dispose of this NQO in a manner not herein permitted, and any levy of execution,
attachment, or similar process on this NQO, shall be null and void.
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7. Company's Right of Repurchase Upon Termination of
Employment. The NQO Shares arising from exercise of this NQO shall be subject to
a right of repurchase in favor of the Company (the "Right of Repurchase") to the
extent set forth on Exhibit 7 attached hereto (the absence of such exhibit
indicating that no such exhibit was intended and that the NQO shall be subject
to the limitations set forth on Exhibit 5.1). If the Optionee's employment with
the Company terminates before the Right of Repurchase lapses in accordance with
Exhibit 7, the Company may purchase NQO Shares subject to the Right of
Repurchase (either by payment of cash or by cancellation of purchase money
indebtedness) for an amount equal to the price the Optionee paid for such NQO
Shares (exclusive of any taxes paid upon acquisition of the stock) by giving
notice at any time within the later of (a) 30 days after the acquisition of the
NQO Shares upon option exercise, or (b) 90 days after such termination of
employment that the Company is exercising its right of repurchase. The Company
shall include with such notice payment in full in cash or by evidence of
cancellation of purchase money indebtedness. The optionee may not dispose of or
transfer NQO Shares while such shares are subject to the Right of Repurchase and
any such attempted transfer shall be null and void.
8. Company's Right of First Refusal.
8.1 Right of First Refusal. In the event that the
optionee proposes to sell, pledge, or otherwise transfer any NQO Shares or any
interest in such shares to any person or entity, the Company shall have a right
of first refusal (the "Right of First Refusal") with respect to such NQO Shares.
If optionee desires to transfer NQO Shares, Optionee shall give a written notice
(the "Transfer Notice") to the Company describing fully the proposed transfer,
including the number of NQO Shares proposed to be transferred, the proposed
transfer price, and the name and address of the proposed transferee. The
Transfer Notice shall be signed both by Optionee-and by the proposed transferee
and must constitute a binding commitment of both such parties for the transfer
of such NQO Shares. The Company may elect to purchase all, but not less than
all, of the NQO Shares subject to the Transfer Notice by delivery of a notice of
exercise of the Company's Right of First Refusal within 30 days after the date
the Transfer Notice is delivered to the Company. The purchase price paid by the
Company shall be-the price per share equal to the proposed per share transfer
price, and shall be paid to the Optionee within 60 days after the date the
Transfer Notice is received by the Company, unless a longer period for payment
was offered by the proposed transferee, in which case the Company shall pay the
purchase price within such longer period. The Company's rights under this
Section 8.1 shall be freely assignable, in whole or in part. Notwithstanding the
foregoing, the Right of First Refusal does not apply to a transfer of shares by
gift or devise to the Optionee's immediate family (i.e., parents, spouse or
children or to a trust for the benefit of the Optionee or any of the Optionee's
immediate family members), but does apply to any subsequent transfer of such
shares by such immediate family members.
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8.2 Transfer of NQO Shares. If the Company fails to
exercise the Right of First Refusal within 30 days after the date the Transfer
Notice is delivered to the Company, the optionee may, not later than 75 days
following delivery to the Company of the Transfer Notice, conclude a transfer of
the NQO Shares subject to the Transfer Notice on the terms and conditions
described in the Transfer Notice. Any proposed transfer on terms and conditions
different from those described in the Transfer Notice, as well as any subsequent
proposed transfer by the optionee, shall again be subject to the Right of First
Refusal and shall require compliance by the Optionee with the procedure
described in Section 8.1 of this Agreement. If the Company exercises the Right
of First Refusal, the parties shall consummate the sale of NQO Shares on the
terms, other than price, as applicable under Section 8.1, set forth in the
Transfer Notice; provided, however, in the event the Transfer Notice provides
for payment for the NQO Shares other than in cash, the Company shall have the
option of paying for the NQO Shares by paying in cash the present value of the
consideration described in the Transfer Notice; and further provided that if the
value of noncash consideration is to be paid, and the Optionee disagrees with
the value determine by the Company, the Optionee may request an independent
appraisal by an appraiser acceptable to the Optionee and the Company, the costs
of such appraisal to be borne equally by the Optionee and the Company.
8.3 Binding Effect. The Right of First Refusal shall
inure to the benefit of the successors and assigns of the Company and shall be
binding upon any transferee of NQO Shares other than a transferee acquiring NQO
Shares in a transaction where the Company failed to exercise the Right of First
Refusal (a "Free Transferee") or a transferee of a Free Transferee.
8.4 Termination of Company's Right of First Refusal.
Notwithstanding anything in this Section 8, the Company shall have no Right of
First Refusal, and Optionee shall have no obligation to comply with the
procedures in Sections 8.1 through 8.3 after the earlier of (i) the closing of
the Company's initial public offering to the public generally or (ii) the date
is ten (10) years after the Effective Date.
9. Market Standoff. Optionee hereby agrees that if so
requested by the Company or any representative of the underwriters in connection
with any registration of the offering of the securities of the Company under the
Securities Act of 1933, as amended (the "Securities Act"), Optionee shall not
sell or otherwise transfer the NQO Shares for a period of 180 days following the
effective date of a Registration Statement filed under the Securities Act;
provided that such restrictions shall apply only to the first two registration
statements of the Company to become effective under the Securities Act which
include securities to be sold on behalf of the Company in an underwritten public
offering under the Securities Act. The Company may impose stop-transfer
instructions with respect to the NQO Shares subject to the foregoing
restrictions until the end of each such 180-day period.
10. Restriction on Issuance of Shares.
10.1 Legality of Issuance. The Company shall not be
obligated to sell or issue any NQO Shares pursuant to this Agreement if such
sale or issuance, in the opinion of the Company and the Company's counsel, might
constitute a violation by the Company of any provision of law, including without
limitation the provisions of the Securities Act.
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10.2 Registration or Qualification of Securities. The
Company may, but shall not be required to, register or qualify the sale of this
NQO or any NQO Shares under the Securities Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the grant or exercise of this option or the issuance or sale of any NQO Shares
pursuant thereto to comply with any law.
11. Restriction on Transfer. Regardless whether the sale of
the NQO Shares has been registered under the Securities Act or has been
registered or qualified under the securities laws of any state, the Company may
impose restrictions upon the sale, pledge, or other transfer of NQO Shares
(including the placement of appropriate legends on stock certificates) if, in
the judgment of the Company and the Company's counsel, such restrictions are
necessary or desirable in order to achieve compliance with the provisions of the
Securities Act, the securities laws of any state, or any other law, or if the
Company does not desire to have a trading market develop for its securities.
12. Stock Certificate Restrictive Legends. Stock
certificates evidencing NQO Shares may bear such restrictive legends as the
Company and the Company's counsel deem necessary or advisable under applicable
law or pursuant to this Agreement.
13. Representations, Warranties, Covenants, and
Acknowledgements of Optionee Upon Exercise of NQO. Optionee hereby agrees that
in the event that the Company and the Company's counsel deem it necessary or
advisable in the exercise of their discretion, the issuance of NQO Shares may be
conditioned upon certain representations, warranties, and acknowledgments by the
person exercising the NQO (the "Purchaser"), including, without limitation,
those set forth in Sections 13.1 through 13.8 inclusive:
13.1 Investment. Purchaser is acquiring the NQO
Shares for Purchaser's own account, and not for the account of any other person.
Purchaser is acquiring the NQO Shares for investment and not with a view to
distribution or resale thereof except in compliance with applicable laws
regulating securities.
13.2 Business Experience. Purchaser is capable of
evaluating the merits and risks of Purchaser's investment in the Company
evidenced by purchase of the NQO Shares.
13.3 Relation to Company. Purchaser is presently an
officer, director, or other employee of, or consultant to the Company, and in
such capacity has become personally familiar with the business, affairs,
financial condition, and results of operations of the Company.
13.4 Access to Information. Purchaser has had the
opportunity to ask questions of, and to receive answers from, appropriate
executive officers of the Company with respect to the terms and conditions of
the transaction contemplated hereby and with respect to the business, affairs,
financial condition, and results of operations of the Company. Purchaser has had
access to such financial and other information as is necessary in order for
Purchaser to make a fully-informed decision as to investment in the Company by
way of purchase of the NQO Shares, and has had the opportunity to obtain any
additional information necessary to verify any of such information to which
Purchaser has had access.
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13.5 Speculative Investment. Purchaser's investment
in the Company represented by the NQO Shares is highly speculative in nature and
is subject to a high degree of risk of loss in whole or in part. The amount of
such investment is within Purchaser's risk capital means and is not so great in
relation to Purchaser's total financial resources as would jeopardize the
personal financial needs of Purchaser or Purchaser's family in the event such
investment were lost in whole or in part.
13.6 Registration. Purchaser must bear the economic
risk of investment for an indefinite period of time because the sale to
Purchaser of the NQO Shares has not been registered under the Securities Act and
the NQO Shares cannot be transferred by Purchaser unless such transfer is
registered under the Securities Act or an exemption from such registration is
available. The Company has made no agreements, covenants, or undertakings
whatsoever to register the transfer of any of the NQO Shares under the
Securities Act. The Company has made no representations, warranties, or
covenants whatsoever as to whether any exemption from the Securities Act,
including without limitation any exemption for limited sales in routine brokers,
transactions pursuant to Rule 144, will be available; if the exemption under
Rule 144 is available at all, it may not be available until at least two years
after payment of cash for the NQO Shares and not then unless: (i) a public
trading market then exists in the Company's Common Stock; (ii) adequate
information as to the Company's financial and other affairs and operations is
then available to the public; and (iii) all other terms and conditions of Rule
144 have been satisfied. Purchaser understands that the resale provisions of
Rule 701 will not apply until 90 days after the Company becomes subject to the
reporting obligations of the Securities Exchange Act of 1934 (typically 90 days
after the effective date of an initial public offering).
13.7 Public Trading. None of the Company's securities
is presently publicly traded, and the Company has made no representation,
covenant, or agreement as to whether there will be a public market for any of
its securities.
13.8 Tax Advice. The Company has made no warranties
or representations to Purchaser with respect to the income tax consequences of
the transactions contemplated by the agreement pursuant to which the NQO Shares
will be purchased and Purchaser is in no manner relying on the Company or its
representatives for an assessment of such tax consequences.
14. Assignment; Binding Effect. Subject to the limitations
set forth in this Agreement, this Agreement shall be binding upon and inure to
the benefit of the executors, administrators, heirs, legal representatives, and
successors of the parties hereto; provided, however, that Optionee may not
assign any of Optionee's rights under this Agreement.
15. Damages. Optionee shall be liable to the Company for all
costs and damages, including incidental and consequential damages, resulting
from a disposition of NQO Shares which is not in conformity with the provisions
of this Agreement.
16. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California excluding
those laws that direct the application of the laws of another jurisdiction.
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17. Notices. All notices and other communications under this
Agreement shall be in writing. Unless and until the Optionee is notified in
writing to the contrary, all notices, communications, and documents directed to
the Company and related to the Agreement, if not delivered by hand, shall be
mailed, addressed As follows:
ClickOver; Inc.
524 Xxxx ___________
Xxxx Xxxx, XX 00000
Attention: President
Unless and until the Company is notified in writing to the contrary, all
notices, communications, and documents intended for the Optionee and related to
this Agreement, if not delivered by hand, shall be mailed to optionee's last
known address as shown on the Company's books. Notices and communications shall
be mailed by first class mail, postage prepaid; documents shall be mailed by
registered mail, return receipt requested, postage prepaid. All mailings and
deliveries related to this Agreement shall be deemed received when actually
received, if by hand delivery, and two business days after mailing, if by mail.
IN WITNESS WHEREOF, the parties have executed this Nonqualified
Stock Option Agreement as of the Effective Date.
CLICKOVER, INC.
By:_____________________________________
Title:__________________________________
The optionee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.
________________________________________
Optionee
Dated:__________________________________
Optionee's spouse indicates by the execution of this Nonqualified Stock Option
Agreement his or her consent to be bound by the terms thereof as to his or her
interests, whether as community property or otherwise, if any, in the option
granted hereunder, and in any NQO Shares purchased pursuant to this Agreement.
________________________________________
Optionee's Spouse
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EXHIBITS
Exhibit 1 Stock Option Plan
Exhibit 3
(if applicable) Expiration of Nonqualified Stock Option
Exhibit 5.1 Time of Exercise
Exhibit 5.3 Stock Option Plan Stock Purchase Agreement
Exhibit 5.4
(if applicable) Payment
Exhibit 7.
(if applicable) Right of Xxxxxxxxxx
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EXHIBIT I OF THE NONQUALIFIED STOCK
OPTION AGREEMENT
STOCK OPTION PLAN
The 1995 Stock Option Plan of Clickover, Inc. is contained in
its entirety as Exhibit C-1.
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EXHIBIT 5.1 OF THE NONQUALIFIED STOCK
OPTION AGREEMENT
The NQO shall be exercisable with respect to twenty-five percent
(25%) of the total number of NQO Shares one year after the Vesting Base Date
and, thereafter, with respect to an additional 1/48 of such shares at the end of
each month after the first anniversary of the Vesting Base Date, so that all of
the NQO Shares may be purchased on and after the fourth anniversary of the
Vesting Base Date.
Initialled by: CLICKOVER, INC.
By:_____________________________________
Title:__________________________________
Optionee:_______________________________
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EXHIBIT 5.3 OF THE NONQUALIFIED STOCK
OPTION AGREEMENT
STOCK OPTION PLAN
STOCK PURCHASE AGREEMENT
ClickOver, Inc.'s Stock Option Plan Stock Purchase Agreement is
contained in its entirety as Exhibit C-4.
