EXHIBIT 10.2
NETEZZA CORPORATION
Incentive Stock Option Agreement
Granted Under 2000 Stock Incentive Plan
1. Grant of Option.
This agreement evidences the grant by Netezza Corporation, a Delaware
corporation (the "Company"), on _____________, 200_ to ______________________,
an employee of the Company (the "Participant"), of an option to purchase, in
whole or in part, on the terms provided herein and in the Company's 2000 Stock
Incentive Plan (the "Plan"), a total of ___________ shares (the "Shares") of
common stock, $.001 par value per share, of the Company ("Common Stock") at
$________ per Share. Unless earlier terminated, this option shall expire on
___________, 201_ (the "Final Exercise Date").
It is intended that the option evidenced by this agreement shall be an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended and any regulations promulgated thereunder (the "Code"). Except
as otherwise indicated by the context, the term "Participant," as used in this
option, shall be deemed to include any person who acquires the right to exercise
this option validly under its terms.
2. Vesting Schedule.
This option will become exercisable ("vest") as to 25% of the original
number of Shares on the first anniversary of _____________, 200_ (the "Vesting
Start Date") and as to an additional 6.25% of the original number of Shares at
the end of each successive three-month period following the first anniversary of
the Vesting Start Date until the fourth anniversary of the Vesting Start Date.
The right of exercise shall be cumulative so that to the extent the option
is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all shares for
which it is vested until the earlier of the Final Exercise Date or the
termination of this option under Section 4 hereof or the Plan.
3. Acceleration of Vesting Schedule. Notwithstanding the vesting schedule
described above in Section 2, effective immediately prior to an Acquisition (as
defined below), this option shall become exercisable for such number of
additional Shares as is equal to 25% of the total number of Shares originally
covered by this option, except that for employees who have been employed by the
Company for less than one year as of the date of the Acquisition, this option
only shall become exercisable for such number of Shares as is equal to 12.5% of
the total number of Shares originally covered by this option, with the remaining
shares in each case continuing to vest in accordance with a vesting schedule
that has been shortened by one year or six months, respectively. For purposes of
this option, the term "Acquisition" shall mean (1) any merger or consolidation
in which (i) the Company is a constituent party or (ii) a subsidiary of the
Company
is a constituent party and the Company issues shares of its capital stock
pursuant to such merger or consolidation (except, in the case of both clauses
(i) and (ii) above, any such merger or consolidation involving the Company or a
subsidiary in which the holders of capital stock of the Company immediately
prior to such merger or consolidation continue to hold immediately following
such merger or consolidation at least 51% by voting power of the capital stock
of (x) the surviving or resulting corporation or (y) if the surviving or
resulting corporation is a wholly owned subsidiary of another corporation
immediately following such merger or consolidation, of the parent corporation of
such surviving or resulting corporation) or (2) the sale or transfer, in a
single transaction or series of related transactions, of outstanding capital
stock representing at least 51% of the voting power of the outstanding capital
stock of the Company immediately following such transaction or (3) the sale of
all or substantially all of the assets of the Company.
4. Exercise of Option.
(a) Form of Exercise. Each election to exercise this option shall be in
substantially the form attached hereto as Exhibit A, signed by the Participant,
and received by the Company at its principal office, accompanied by this
agreement, and payment in full in the manner provided in the Plan. The
Participant may purchase less than the number of shares covered hereby, provided
that no partial exercise of this option may be for any fractional share or for
fewer than ten whole shares.
(b) Continuous Relationship with the Company Required. Except as otherwise
provided in this Section 4, this option may not be exercised unless the
Participant, at the time he or she exercises this option, is, and has been at
all times since the date hereof, an employee, officer or director of, or
consultant or advisor to, the Company or any parent or subsidiary of the Company
as defined in Section 424(e) or (f) of the Code (an "Eligible Participant").
(c) Termination of Relationship with the Company. If the Participant ceases
to be an Eligible Participant for any reason, then, except as provided in
paragraphs (d) and (e) below, the right to exercise this option shall terminate
three months after such cessation (but in no event after the Final Exercise
Date), provided that this option shall be exercisable only to the extent that
the Participant was entitled to exercise this option on the date of such
cessation. Notwithstanding the foregoing, if the Participant, prior to the Final
Exercise Date, violates the non-competition or confidentiality provisions of any
employment contract, confidentiality and nondisclosure agreement or other
agreement between the Participant and the Company, the right to exercise this
option shall terminate immediately upon written notice to the Participant from
the Company describing such violation.
(d) Exercise Period Upon Death or Disability. If the Participant dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to
the Final Exercise Date while he or she is an Eligible Participant and the
Company has not terminated such relationship for "cause" as specified in
paragraph (e) below, this option shall be exercisable, within the period of one
year following the date of death or disability of the Participant by the
Participant, provided that this option shall be exercisable only to the extent
that this option was exercisable by the Participant on the date of his or her
death or disability, and further provided that this option shall not be
exercisable after the Final Exercise Date.
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(e) Discharge for Cause. If the Participant, prior to the Final Exercise
Date, is discharged by the Company for "cause" (as defined below), the right to
exercise this option shall terminate immediately upon the effective date of such
discharge. "Cause" shall mean willful misconduct by the Participant or willful
failure by the Participant to perform his or her responsibilities to the Company
(including, without limitation, breach by the Participant of any provision of
any employment, consulting, advisory, nondisclosure, non-competition or other
similar agreement between the Participant and the Company), as determined by the
Company, which determination shall be conclusive. The Participant shall be
considered to have been discharged for "Cause" if the Company determines, within
30 days after the Participant's resignation, that discharge for cause was
warranted.
5. Right of First Refusal.
(a) If the Participant proposes to sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively, "transfer") any Shares acquired upon exercise of this option,
then the Participant shall first give written notice of the proposed transfer
(the "Transfer Notice") to the Company. The Transfer Notice shall name the
proposed transferee and state the number of such Shares the Participant proposes
to transfer (the "Offered Shares"), the price per share and all other material
terms and conditions of the transfer.
(b) For 30 days following its receipt of such Transfer Notice, the Company
shall have the option to purchase all (but not less than all) of the Offered
Shares at the price and upon the terms set forth in the Transfer Notice. In the
event the Company elects to purchase all of the Offered Shares, it shall give
written notice of such election to the Participant within such 30-day period.
Within 10 days after his receipt of such notice, the Participant shall tender to
the Company at its principal offices the certificate or certificates
representing the Offered Shares, duly endorsed in blank by the Participant or
with duly endorsed stock powers attached thereto, all in a form suitable for
transfer of the Offered Shares to the Company. Promptly following receipt of
such certificate or certificates, the Company shall deliver or mail to the
Participant a check in payment of the purchase price for the Offered Shares;
provided that if the terms of payment set forth in the Transfer Notice were
other than cash against delivery, the Company may pay for the Offered Shares on
the same terms and conditions as were set forth in the Transfer Notice; and
provided further that any delay in making such payment shall not invalidate the
Company's exercise of its option to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the
Participant may, within the 30-day period following the expiration of the option
granted to the Company under subsection (b) above, transfer the Offered Shares
to the proposed transferee, provided that such transfer shall not be on terms
and conditions more favorable to the transferee than those contained in the
Transfer Notice. Notwithstanding any of the above, all Offered Shares
transferred pursuant to this Section 5 shall remain subject to the right of
first refusal set forth in this Section 5 and such transferee shall, as a
condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and
conditions of this Section 5.
(d) After the time at which the Offered Shares are required to be delivered
to the Company for transfer to the Company pursuant to subsection (b) above, the
Company shall not
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pay any dividend to the Participant on account of such Offered Shares or permit
the Participant to exercise any of the privileges or rights of a stockholder
with respect to such Offered Shares, but shall, in so far as permitted by law,
treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be exempt from the provisions of this
Section 5:
(1) any transfer of Shares to or for the benefit of any spouse, child
or grandchild of the Participant, or to a trust for their benefit;
(2) any transfer pursuant to an effective registration statement filed
by the Company under the Securities Act of 1933, as amended (the "Securities
Act"); and
(3) an Acquisition.
provided, however, that in the case of a transfer pursuant to clause (1) above,
such Shares shall remain subject to the right of first refusal set forth in this
Section 5 and such transferee shall, as a condition to such transfer, deliver to
the Company a written instrument confirming that such transferee shall be bound
by all of the terms and conditions of this Section 5.
(f) The Company may assign its rights to purchase Offered Shares in any
particular transaction under this Section 5 to one or more persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of
the following events:
(1) the closing of the sale of shares of Common Stock in an
underwritten public offering pursuant to an effective registration statement
filed by the Company under the Securities Act; or
(2) an Acquisition.
(h) The Company shall not be required (a) to transfer on its books any of
the Shares which shall have been sold or transferred in violation of any of the
provisions set forth in this Section 5, or (b) to treat as owner of such Shares
or to pay dividends to any transferee to whom any such Shares shall have been so
sold or transferred.
6. Agreement in Connection with Public Offering.
The Participant agrees, in connection with the initial underwritten public
offering of the Company's securities pursuant to a registration statement under
the Securities Act, (i) not to sell, make short sale of, loan, grant any options
for the purchase of, or otherwise dispose of any shares of Common Stock held by
the Participant (other than those shares included in the offering) without the
prior written consent of the Company or the underwriters managing such initial
underwritten public offering of the Company's securities for a period of 180
days from the effective date of such registration statement, and (ii) to execute
any agreement reflecting clause (i) above as may be requested by the Company or
the managing underwriters at the time of such offering.
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7. Withholding.
No Shares will be issued pursuant to the exercise of this option unless and
until the Participant pays to the Company, or makes provision satisfactory to
the Company for payment of, any federal, state or local withholding taxes
required by law to be withheld in respect of this option.
8. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or otherwise
encumbered by the Participant, either voluntarily or by operation of law, except
by will or the laws of descent and distribution, and, during the lifetime of the
Participant, this option shall be exercisable only by the Participant.
9. Disqualifying Disposition.
If the Participant disposes of Shares acquired upon exercise of this option
within two years from the date of this agreement or one year after such Shares
were acquired pursuant to exercise of this option, the Participant shall notify
the Company in writing of such disposition.
10. Provisions of the Plan.
This option is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed under
its corporate seal by its duly authorized officer. This option shall take effect
as a sealed instrument.
NETEZZA CORPORATION
Dated: By:
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Name:
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Title:
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PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms
and conditions thereof. The undersigned hereby acknowledges receipt of a copy of
the Company's 2000 Stock Incentive Plan.
PARTICIPANT:
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Address:
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EXHIBIT A
NOTICE OF INCENTIVE STOCK OPTION EXERCISE
Date of Exercise: ____________
NETEZZA CORPORATION
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Treasurer
Dear Sir or Madam:
I am the holder of an Incentive Stock Option granted to me under the Netezza
Corporation (the "Company") 2000 Stock Incentive Plan on _________, 200_ for the
purchase of __________ shares of Common Stock of the Company at a purchase price
of $__________ per share.
I hereby exercise my option to purchase _________ shares of Common Stock (the
"Shares"), for which I have enclosed __________ in the amount of ________.
Please register my stock certificate as follows:
Name(s): ____________________________
Address: ____________________________
____________________________
Tax I.D./ SSN #: ____________________________
I represent, warrant and covenant as follows:
1. I am purchasing the Shares for my own account for investment only, and not
with a view to, or for sale in connection with, any distribution of the Shares
in violation of the Securities Act of 1933 (the "Securities Act"), or any rule
or regulation under the Securities Act.
2. I have had such opportunity as I have deemed adequate to obtain from
representatives of the Company such information as is necessary to permit me to
evaluate the merits and risks of my investment in the Company.
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3. I have sufficient experience in business, financial and investment matters to
be able to evaluate the risks involved in the purchase of the Shares and to make
an informed investment decision with respect to such purchase.
4. I can afford a complete loss of the value of the Shares and am able to bear
the economic risk of holding such Shares for an indefinite period.
5. I understand that (i) the Shares have not been registered under the
Securities Act and are "restricted securities" within the meaning of Rule 144
under the Securities Act, (ii) the Shares cannot be sold, transferred or
otherwise disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then available; (iii) in any
event, the exemption from registration under Rule 144 will not be available for
at least one year and even then will not be available unless a public market
then exists for the Common Stock, adequate information concerning the Company is
then available to the public, and other terms and conditions of Rule 144 are
complied with; and (iv) there is now no registration statement on file with the
Securities and Exchange Commission with respect to any stock of the Company and
the Company has no obligation or current intention to register the Shares under
the Securities Act.
Very truly yours,
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(Signature)
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