EXHIBIT 10.3
NONQUALIFIED STOCK OPTION AGREEMENT
CORVU CORPORATION
2005 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made effective as of this ____ day of ________,
2005, by and between CorVu Corporation, a Minnesota corporation (the "Company"),
and ______________ ("Optionee").
W I T N E S S E T H:
WHEREAS, Optionee on the date hereof is a key employee, officer or
director of or consultant or advisor to the Company or one of its Subsidiaries;
and
WHEREAS, the Company wishes to grant a nonqualified stock option to
Optionee to purchase shares of the Company's Common Stock pursuant to the
Company's 2005 Equity Incentive Plan (the "Plan"); and
WHEREAS, the Administrator of the Plan has authorized the grant of an
incentive stock option to Optionee and has determined that, as of the effective
date of this Agreement, the Fair Market Value of the Company's Common Stock is
$0.31 per share;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee on the date set
forth above (the "Date of Grant"), the right and option (the "Option") to
purchase all or portions of an aggregate of __________________ (_________)
shares of Common Stock at a per share price of $0.31 on the terms and conditions
set forth herein, and subject to adjustment pursuant to Section 13 of the Plan.
This Option is not intended to be an incentive stock option within the meaning
of Section 422, or any successor provision, of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder.
2. DURATION AND EXERCISABILITY.
a. GENERAL. The term during which this Option may be exercised shall
terminate on the close of business on _____________________, except as otherwise
provided in Paragraphs 2(b) through 2(d) below. This Option shall become
exercisable as follows:____________________________________________________.
Notwithstanding the foregoing, in the event of an acquisition of the
Company through the sale of substantially all of its assets or through a merger,
consolidation, exchange, reorganization, reclassification, extraordinary
dividend, reorganization, divestiture (including a spin-off) or liquidation of
the Company (collectively referred to as a "change of control transaction"),
this Option shall immediately become exercisable to the extent of One Hundred
Percent (100%) of the aggregate number of shares specified in Paragraph 1.
Once the Option becomes exercisable to the extent of one hundred
percent (100%) of the aggregate number of shares specified in Paragraph 1,
Optionee may continue to exercise this Option under the terms and conditions of
this Agreement until the termination of the Option as provided herein. If
Optionee does not purchase upon an exercise of this Option the full number of
shares which Optionee is then entitled to purchase, Optionee may purchase upon
any subsequent exercise prior to this Option's termination such previously
unpurchased shares in addition to those Optionee is otherwise entitled to
purchase.
b. TERMINATION OF RELATIONSHIP (OTHER THAN DISABILITY OR DEATH). If
Optionee's relationship with the Company or any Subsidiary is terminated for any
reason other than disability or death, this Option shall completely terminate on
the earlier of (i) the close of business on the three-month anniversary date of
such termination of relationship, and (ii) the expiration date of this Option
stated in Paragraph 2(a) above. In such period following the termination of
Optionee's relationship, this Option shall be exercisable only to the extent the
Option was exercisable on the vesting date immediately preceding such
termination of relationship, but had not previously been exercised. To the
extent this Option was not exercisable upon such termination of relationship, or
if Optionee does not exercise the Option within the time specified in this
Paragraph 2(b), all rights of Optionee under this Option shall be forfeited.
c. DISABILITY. If Optionee's relationship with the Company or any
Subsidiary terminates because of disability (as defined in Code Section 22(e),
or any successor provision), this Option shall terminate on the earlier of (i)
the close of business on the twelve-month anniversary date of the such
termination of relationship, and (ii) the expiration date of this Option stated
in Paragraph 2(a) above. In such period following the termination of Optionee's
relationship, this Option shall be exercisable only to the extent the Option was
exercisable on the vesting date immediately preceding such termination of
relationship, but had not previously been exercised. To the extent this Option
was not exercisable upon such termination of relationship, or if Optionee does
not exercise the Option within the time specified in this Paragraph 2(c), all
rights of Optionee under this Option shall be forfeited.
d. DEATH. In the event of Optionee's death, this Option shall
terminate on the earlier of (i) the close of business on the twelve-month
anniversary date of the date of Optionee's death, and (ii) the expiration date
of this Option stated in Paragraph 2(a) above. In such period following
Optionee's death, this Option shall be exercisable by the person or persons to
whom Optionee's rights under this Option shall have passed by Optionee's will or
by the laws of descent and distribution only to the extent the Option was
exercisable on the vesting date immediately preceding the date of Optionee's
death. To the extent this Option was not exercisable upon the date of Optionee's
death, or if such person or persons do not exercise this Option within the time
specified in this Paragraph 2(d), all rights under this Option shall be
forfeited.
3. MANNER OF EXERCISE.
a. GENERAL. The Option may be exercised only by Optionee (or other
proper party in the event of death or incapacity), subject to the conditions of
the Plan and subject to such other administrative rules as the Administrator may
deem advisable, by delivering within the Option Period written notice of
exercise to the Company at its principal office. The notice shall state the
number of shares as to which the Option is being exercised and shall be
accompanied by payment in full of the Option price for all shares designated in
the notice. The exercise of the Option shall be deemed effective upon receipt of
such notice by the Company and upon payment that complies with the terms of the
Plan and this Agreement. The Option may be exercised with respect to any number
or all of the shares as to which it can then be exercised and, if partially
exercised, may be so exercised as to the unexercised shares any number of times
during the Option period as provided herein.
b. FORM OF PAYMENT. Subject to approval by the Administrator,
payment of the option price by Optionee shall be in the form of cash, personal
check, certified check or previously acquired shares of Common Stock of the
Company, or any combination thereof. Any stock so tendered as part of such
payment shall be valued at its Fair Market Value as provided in the Plan. For
purposes of this Agreement, "previously acquired shares of Common Stock" shall
include shares of Common Stock that are already owned by Optionee at the time of
exercise.
c. STOCK TRANSFER RECORDS. As soon as practicable after the
effective exercise of all or any part of the Option, Optionee shall be recorded
on the stock transfer books of the Company as the owner of the shares purchased,
and the Company shall deliver to Optionee one or more duly issued stock
certificates evidencing such ownership. All requisite original issue or transfer
documentary stamp taxes shall be paid by the Company.
4. MISCELLANEOUS.
a. EMPLOYMENT; RIGHTS AS SHAREHOLDER. This Agreement shall not
confer on Optionee any right with respect to continuance of employment by or
other relationship with the Company or any of its Subsidiaries, nor will it
interfere in any way with the right of the Company to terminate such employment
or other relationship. Optionee shall have no rights as a shareholder with
respect to shares subject to this Option until such shares have been issued to
Optionee upon exercise of this Option. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions or other rights for which the record date is prior to the date
such shares are issued, except as provided in Section 13 of the Plan.
b. SECURITIES LAW COMPLIANCE. The exercise of all or any parts of
this Option shall only be effective at such time as counsel to the Company shall
have determined that the issuance and delivery of Common Stock pursuant to such
exercise will not violate any state or federal securities or other laws.
Optionee may be required by the Company, as a condition of the effectiveness of
any exercise of this Option, to agree in writing that all Common Stock to be
acquired pursuant to such exercise shall be held, until such time that such
Common Stock is registered and freely tradable under applicable state and
federal securities laws, for Optionee's own account without a view to any
further distribution thereof, that the certificates for such shares shall bear
an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and
federal securities laws.
c. MERGERS, RECAPITALIZATIONS, STOCK SPLITS, ETC. Pursuant and
subject to Section 13 of the Plan, certain changes in the number or character of
the Common Stock of the Company (through sale, merger, consolidation, exchange,
reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in Optionee's rights with
respect to any unexercised portion of the Option (i.e., Optionee shall have such
"anti-dilution" rights under the Option with respect to such events, but shall
not have "preemptive" rights).
d. SHARES RESERVED. The Company shall at all times during the option
period reserve and keep available such number of shares as will be sufficient to
satisfy the requirements of this Agreement.
e. WITHHOLDING TAXES. In order to permit the Company to comply with
all applicable federal or state income tax laws or regulations, the Company may
take such action as it deems appropriate to insure that, if necessary, all
applicable federal or state payroll, income or other taxes are withheld from any
amounts payable by the Company to Optionee. If the Company is unable to withhold
such federal and state taxes, for whatever reason, Optionee hereby agrees to pay
to the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal or state law. Optionee may, subject to the
approval and discretion of the Administrator or such administrative rules it may
deem advisable, elect to have all or a portion of such tax withholding
obligations satisfied by delivering shares of the Company's Common Stock or by
electing to have the Company withhold shares of Common Stock otherwise issuable
to Optionee. Such shares shall have a Fair Market Value equal to the minimum
required tax withholding, based on the minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are applicable to
the supplemental income resulting from the exercise of this Option. In no event
may the Company withhold shares having a Fair Market Value in excess of such
statutory minimum required tax withholding.
f. NONTRANSFERABILITY. During the lifetime of Optionee, the accrued
Option shall be exercisable only by Optionee or by the Optionee's guardian or
other legal representative, and shall not be assignable or transferable by
Optionee, in whole or in part, other than by will or by the laws of descent and
distribution.
g. 2005 EQUITY INCENTIVE PLAN. The Option evidenced by this
Agreement is granted pursuant to the Plan, a copy of which Plan has been made
available to Optionee and is hereby incorporated into this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. All defined terms of the Plan shall have the same meaning when used
in this Agreement. The Plan governs this Option and, in the event of any
questions as to the construction of this Agreement or in the event of a conflict
between the Plan and this Agreement, the Plan shall govern, except as the Plan
otherwise provides.
h. LOCKUP PERIOD LIMITATION. Optionee agrees that in the event the
Company advises Optionee that it plans an underwritten public offering of its
Common Stock in compliance with the Securities Act of 1933, as amended, and that
the underwriter(s) seek to impose restrictions under which certain shareholders
may not sell or contract to sell or grant any option to buy or otherwise dispose
of part or all of their stock purchase rights of the underlying Common Stock,
Optionee hereby agrees that for a period not to exceed 180 days from the
prospectus, Optionee will not sell or contract to sell or grant an option to buy
or otherwise dispose of this option or any of the underlying shares of Common
Stock without the prior written consent of the underwriter(s) or its
representative(s).
i. BLUE SKY LIMITATION. Notwithstanding anything in this Agreement
to the contrary, in the event the Company makes any public offering of its
securities and determines in its sole discretion that it is necessary to reduce
the number of issued but unexercised stock purchase rights so as to comply with
any state securities or Blue Sky law limitations with respect thereto, the Board
of Directors of the Company shall have the right (i) to accelerate the
exercisability of this Option and the date on which this Option must be
exercised, provided that the Company gives Optionee 15 days' prior written
notice of such acceleration, and (ii) to cancel any portion of this Option or
any other option granted to Optionee pursuant to the Plan which is not exercised
prior to or contemporaneously with such public offering. Notice shall be deemed
given when delivered personally or when deposited in the United States mail,
first class postage prepaid and addressed to Optionee at the address of Optionee
on file with the Company.
j. ACCOUNTING COMPLIANCE. Optionee agrees that, if a merger,
reorganization, liquidation or other "transaction" as defined in Section 13 of
the Plan occurs and Optionee is an "affiliate" of the Company or any Subsidiary
(as defined in applicable legal and accounting principles) at the time of such
transaction, Optionee will comply with all requirements of Rule 145 of the
Securities Act of 1933, as amended, and the requirements of such other legal or
accounting principles, and will execute any documents necessary to ensure such
compliance.
k. STOCK LEGEND. The Administrator may require that the certificates
for any shares of Common Stock purchased by Optionee (or, in the case of death,
Optionee's successors) shall bear an appropriate legend to reflect the
restrictions of Paragraph 4(b) and Paragraphs 4(h) through 4(j) of this
Agreement.
l. SCOPE OF AGREEMENT. This Agreement shall bind and inure to the
benefit of the Company and its successors and assigns and Optionee and any
successor or successors of Optionee permitted by Paragraph 2 or Paragraph 4(f)
above.
m. ARBITRATION. Any dispute arising out of or relating to this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of any
such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney
who has practiced securities or business litigation for at least 10 years. If
the parties cannot agree on an arbitrator within 20 days, any party may request
that the chief judge of the District Court for Hennepin County, Minnesota,
select an arbitrator. Arbitration will be conducted pursuant to the provisions
of this Agreement, and the commercial arbitration rules of the American
Arbitration Association, unless such rules are inconsistent with the provisions
of this Agreement. Limited civil discovery shall be permitted for the production
of documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs and
fees, including the arbitrator's fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys' fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CORVU CORPORATION
By:
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Its:
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Optionee
