EXHIBIT 99.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED
PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF
THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE NOT
REQUIRED.
CONNECTIFY, INC.
1998 STOCK PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
Monthly Vesting Over Four Years
Connectify, Inc., a Delaware corporation (the "Company"), hereby grants
an option to purchase shares of its Common Stock (the "Shares") to the optionee
named below. The terms and conditions of the option are set forth in this cover
sheet, in the attached Stock Option Agreement and in the Company's 1998 Stock
Plan (the "Plan").
Date of Option Grant:
Name of Optionee: ____________
Optionee's Social Security Number: _____-____-_____
Number of Shares of Common Stock Covered by Option: 20,000.00
---------
Exercise Price per Share: $___
Vesting Start Date: ____________
By signing this cover sheet, Optionee agrees to all of the terms and
conditions described in the attached Stock Option Agreement and in the
Plan.
Optionee:____________________________________________________________________
(Signature)
Company:_____________________________________________________________________
(Signature)
Title:_________________________________________________________________
CONNECTIFY, INC., INC.
1998 STOCK PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
Monthly Vesting Over Four Years
Incentive Stock Connectify, Inc., (the "Company") grants to
Option Optionee an option to purchase the number of
Shares shown on the cover sheet of this
Agreement. The option is subject to the terms and
conditions of this Agreement and the Plan. This
option is not intended to be an incentive stock
option under section 422 of the Internal Revenue
Code and will be interpreted accordingly.
Optionee shall be deemed to be providing Services
to the Company for so long as Optionee renders
periodic services to the Company or one or more
of its parent or subsidiary corporations as an
active member of the Board of Advisors.
Vesting and Right Beginning on the Vesting Start Date, Optionee's
of Repurchase right to exercise this option vests over a four
(4) year period in accordance with the vesting
schedule indicated below:
Portion of
Shares Vested
-------------
For each full month of Optionee's 1/48th
Service to the Company following
the Vesting Start Date
On the fourth anniversary of the
Vesting Start Date 100%
Term This option will expire in any event at the close
of business at Company headquarters on the day
before the 10th anniversary of the Date of Option
Grant, as shown on the cover sheet. (This option
will expire earlier in the event Optionee's
Service to the Company terminates, as described
below.)
Regular If Optionee's Service to the Company terminates
Termination for any reason except death or Disability, then
this option will expire at the close of business
at Company headquarters on the 30th day after
Optionee's termination date.
Death or In the event Optionee's Service to the Company
Disability terminates as a result of death or Disability (as
defined above), then this option will expire at
the close of business at Company headquarters on
the date six (6) months after Optionee's
termination date. During that 6-month period,
Optionee's estate or heirs may exercise the
vested portion of this option. "Disability" shall
be deemed to have occurred when the Optionee's
Service to the Company is terminated because the
Optionee is unable to engage in any substantial,
gainful activity on behalf of the Company by
reason of any medically determinable physical or
mental impairment.
Leaves of Absence For purposes of this option, Optionee's service
shall not terminate when Optionee takes a
bona fide leave of absence that was approved by
the Company in writing, if the terms of the leave
provide for continued service crediting, or when
continued service crediting is required by
applicable law. However, for purposes of
determining whether this option is entitled to
treatment as an incentive stock option under
section 422 of the Internal Revenue Code,
Optionee's Service will be deemed to have
terminated 90 days after such leave begins,
unless Optionee's right to return to active work
is guaranteed by law or by a contract. Optionee's
Service terminates in any event when the approved
leave expires unless Optionee immediately returns
to active work.The Company determines which
leaves qualify for this purpose, and when
Optionee's Service terminates for all purposes
under the Plan.
Restrictions on The Company will not permit Optionee to exercise
Exercise this option if the issuance of Shares at that
time would violate any law or regulation.
Notice of Exercise In order to exercise this option, Optionee must
notify the Company by delivering a "Notice of
Exercise" attached hereto to the Company. Such
Notice of Exercise must specify the number of
Shares Optionee desires to purchase and the names
in which such Shares should be made (in
Optionee's name only or in Optionee's and his or
her spouse's names as community property or as
joint tenants with right of survivorship). Such
Notice of Exercise shall be effective upon
receipt by the Company.
In the event Optionee's estate or an heir of
Optionee desires to exercise this option after
Optionee's death, such entity or individual must
provide evidence to the Company's satisfaction
that it, he or she is entitled to so exercise.
Periods of Any other provision of this Agreement
Nonexercisability notwithstanding, the Company shall have the right
to designate one or more periods of time, each of
which shall not exceed 180 days in length, during
which this option shall not be exercisable if the
Company determines (in its sole discretion) that
such limitation on exercise could in any way
facilitate a lessening of any restriction on
transfer pursuant to the Securities Act of 1933,
as amended (the "Securities Act") or any state
securities laws with respect to any issuance of
securities by the Company, facilitate the
registration or qualification of any securities
by the Company under the Securities Act or any
state securities laws, or facilitate the
perfection of any exemption from the registration
or qualification requirements of the Securities
Act or any applicable state securities laws for
the issuance or transfer of any securities. Such
limitation on exercise shall not alter the
vesting schedule set forth in this Agreement
other than to limit the periods during which this
option shall be exercisable.
Form of Payment A payment of the aggregate option exercise price
for the Shares being purchased must accompany a
Notice of Exercise. Payment may be made in one
(or a combination) of the following forms:
. A personal check, a cashier's check or a
money order.
. Common Shares which have already been owned
by Optionee for any time period specified by
the Board of Directors and which are
surrendered to the Company. The fair market
value of the Shares, determined as of the
effective date of the option exercise, will
be applied to the option exercise price.
. To the extent that a public market for the
Shares exists as determined by the Company,
by delivery (on a form prescribed by the
Board of Directors) of an irrevocable
direction to a securities broker to sell
Shares and to deliver all or part of the
sale proceeds to the Company in payment of
the aggregate option exercise price.
Withholding Taxes Optionee will not be allowed to exercise this
option unless he or she makes acceptable
arrangements to pay any withholding or other
taxes that may be due as a result of the option
exercise or the sale of Shares acquired upon
exercise of this option and the sale of the
Shares.
Restrictions on By signing this Agreement, Optionee agrees not to
Resale sell any Shares at a time when applicable laws,
regulations or Company or underwriter trading
policies prohibit such a sale. In connection with
any underwritten public offering by the Company
of its equity securities pursuant to an effective
registration statement filed under the Securities
Act, including the Company's initial public
offering, Optionee agrees not to sell, make any
short sale of, loan, hypothecate, pledge, grant
any option for the purchase of, or otherwise
dispose or transfer for value or agree to engage
in any of the foregoing transactions with respect
to any Shares without the prior written consent
of the Company or its underwriters, for such
period of time after the effective date of such
registration statement as may be requested by the
Company or such underwriters.
In order to enforce the provisions of this
paragraph, the Company may impose stop-transfer
instructions with respect to the Shares until the
end of the applicable stand-off period.
Optionee represents and agrees that the Shares
are being acquired solely for Optionee's own
account and not as a nominee for any other party,
or for investment, and not with a view to the
sale or distribution thereof.
In the event that the sale of Shares under the
Plan is not registered under the Securities Act
but an exemption is available which requires an
investment representation or other
representation, Optionee shall represent and
agree at the time of exercise that the Shares
being acquired
upon exercising this option are being acquired
for investment, and not with a view to the sale
or distribution thereof, and shall make such
other representations as are deemed necessary or
appropriate by the Company and its counsel.
The Company's In the event that Optionee proposes to sell,
Right of First pledge or otherwise transfer to a third party
Refusal acquired under this Agreement, or any interest in
such Shares, the Company shall have the "Right of
First Refusal" with respect to all (and not less
than all) of such Shares. If Optionee desires to
transfer Shares acquired under this Agreement,
Optionee must give a written "Transfer Notice" to
the Company describing fully the proposed
transfer, including the number of 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 new
transferee and must constitute a binding
commitment of both parties to the transfer of the
Shares. The Company shall have the right to
purchase all, and not less than all, of the
Shares on the terms of the proposal described in
the Transfer Notice (subject, however, to any
change in such terms permitted in the next
paragraph) by delivery of a notice of exercise of
the Right of First Refusal within thirty (30)
days after the date when the Transfer Notice was
received by the Company.
If the Company fails to exercise its Right of
First Refusal within thirty (30) days after the
date when it received the Transfer Notice,
Optionee may, not later than ninety (90) days
following receipt of the Transfer Notice by the
Company, conclude a transfer of the 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 Optionee, shall again be subject to
the Right of First Refusal and shall require
compliance with the procedure described in the
paragraph above. If the Company exercises its
Right of First Refusal, the parties shall
consummate the sale of the Shares on the terms
set forth in the Transfer Notice within sixty
(60) days after the date when the Company
received the Transfer Notice (or within such
longer period as may have been specified in the
Transfer Notice); provided, however, that in the
event the Transfer Notice provided that payment
for the Shares was to be made in a form other
than lawful money paid at the time of transfer,
the Company shall have the option of paying for
the Shares with lawful money equal to the present
value of the consideration described in the
Transfer Notice.
The Company's Right of First Refusal shall inure
to the benefit of its successors and assigns,
shall be freely assignable, in whole or in part,
and shall be binding upon any transferee of the
Shares. The Company's Right of First Refusal
shall terminate in the event that Stock is listed
on an established stock exchange or is quoted
regularly on the Nasdaq Stock Market.
Transfer of Option Prior to Optionee's death, only Optionee may
exercise this option. Optionee may not transfer
or assign this option, including without
limitation, the sale of this option or the use of
this option as security for a loan. In the event
that Optionee attempts to transfer or assign this
option, this option will immediately become null
and void. Optionee may, however dispose of this
option in his or her will.
Regardless of any marital property settlement
agreement, the Company is not obligated to honor
a notice of exercise from Optionee's spouse or
former spouse, nor is the Company obligated to
recognize such individual's interest in this
option in any other way.
No Retention This Agreement is not an employment agreement and
Rights does not give Optionee the right to be retained
by the Company. The Company reserves the right to
terminate Optionee's Service at any time and for
any reason.
Stockholder Rights Optionee, or optionee's estate or heirs, have no
rights as a stockholder of the Company until a
certificate for Optionee's Shares has been
issued. No adjustments are made for dividends or
other rights if the applicable record date occurs
before Optionee's stock certificate is issued,
except as described in the Plan.
Adjustments In the event of a stock split, a stock dividend
or a similar change in the Company stock, the
number of Shares covered by this option and the
exercise price per share may be adjusted pursuant
to the Plan. This option shall be subject to the
terms of the agreement of merger, liquidation or
reorganization in the event the Company is
subject to such corporate activity.
Legends All certificates representing the Shares issued
upon exercise of this option shall, where
applicable, have endorsed thereon the following
legends:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
ENCUMBERED OR IN ANY MANNER DISPOSED OF,
EXCEPT IN COMPLIANCE WITH THE TERMS OF A
WRITTEN AGREEMENT BETWEEN THE COMPANY AND
THE INITIAL HOLDER HEREOF. SUCH AGREEMENT
PROVIDES FOR CERTAIN TRANSFER RESTRICTIONS,
INCLUDING RIGHTS OF FIRST REFUSAL UPON AN
ATTEMPTED TRANSFER OF THE SECURITIES AND
CERTAIN REPURCHASE RIGHTS IN FAVOR OF THE
COMPANY UPON TERMINATION OF SERVICE WITH THE
COMPANY. THE SECRETARY OF THE COMPANY WILL
UPON WRITTEN REQUEST FURNISH A COPY OF SUCH
AGREEMENT TO THE HOLDER HEREOF WITHOUT
CHARGE."
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND MAY BE OFFERED AND SOLD ONLY IF
REGISTERED AND QUALIFIED PURSUANT TO THE
RELEVANT PROVISIONS OF FEDERAL AND STATE
SECURITIES LAWS OR IF THE COMPANY IS
PROVIDED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE
SECURITIES LAWS ARE NOT REQUIRED."
Applicable Law This Agreement will be interpreted and enforced
under the laws of the State of California.
The Plan and The text of the Plan is incorporated in this
Other Agreements Agreement by this reference. Optionee and the
Company agree to execute such further instruments
and to take such further action as may reasonably
be necessary to carry out the intent of this
Agreement.
This Agreement and the Plan constitute the entire
understanding between Optionee and the Company
regarding this option. Any prior agreements,
commitments or negotiations are superseded.
By signing the cover sheet of this Agreement, Optionee agrees to
all of the terms and conditions described above and in the
Plan.
EXHIBIT A
---------
ASSIGNMENT SEPARATE FROM CERTIFICATE
------------------------------------
FOR VALUE RECEIVED and pursuant to the undersigned's ("Optionee") Stock
Option Agreement, Optionee hereby sells, assigns and transfers unto Connectify,
Inc., a Delaware corporation (the "Company") _________________ (________)
unvested shares of Common Stock of the Company, standing in Optionee's name on
the books of the Company and represented by Certificate No._____, herewith and
does hereby irrevocably constitute and appoint _________________________ to
transfer the said stock on the books of the Company with full power of
substitution in the premises. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY
THE STOCK OPTION AGREEMENT AND THE EXHIBITS THERETO.
Dated: ____________, 19__.
_____________________________________
Print Name
_____________________________________
Signature
Spousal Consent (if applicable)
-------------------------------
________________ (Optionee's spouse) indicates by the execution of this
Assignment his or her consent to be bound by the terms herein as to his or her
interests, whether as community property or otherwise, if any, in the Shares.
_____________________________________
Signature
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS
"REPURCHASE OPTION" SET FORTH IN THE STOCK OPTION AGREEMENT WITHOUT REQUIRING
ADDITIONAL SIGNATURES ON THE PART OF OPTIONEE.
NOTICE OF EXERCISE OF STOCK OPTION
Connectify, Inc.
Xxx Xxxxxx Xxxx Xxxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: President
Re: Exercise of Stock Option to Purchase Shares of Company Stock
Ladies and Gentlemen:
Pursuant to the Stock Option Agreement dated __________, 199___ (the
"Stock Option Agreement"), between Connectify, Inc., a Delaware corporation (the
"Company"), and the undersigned, I hereby elect to purchase _____________ shares
of the common stock of the Company (the "Shares"), at the price of $__________
per Share. My check in the amount of $______________ and the executed Assignment
Separate from Certificate are enclosed. The Shares are to be issued and
registered in the name(s) of:
__________________________
__________________________
The undersigned understands there may be tax consequences as a result of
the purchase or disposition of the Shares. The undersigned represents that
he/she has received and reviewed the Plan's federal income information and
consulted with any tax consultants he/she deems advisable in connection with the
purchase or disposition of the Shares and the undersigned is not relying on the
Company for any tax advice.
The undersigned acknowledges that he/she has received, read and understood
the Stock Option Agreement and agrees to abide by and be bound by their terms
and conditions. The undersigned represents that the Shares are being acquired
solely for its own account and not as a nominee for any other party, or for
investment, and that the undersigned purchaser will not offer, sell or otherwise
dispose of any such Shares except under circumstances that will not result in a
violation of the Securities Act of 1933, as amended, or any state securities
laws.
Dated: _____________________
_____________________________________
(Signature)
_____________________________________
(Please Print Name)
Social Security No.__________________
_____________________________________
_____________________________________
(Full Address)
