QLIK TECHNOLOGIES INC. OMNIBUS STOCK OPTION AND AWARD PLAN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
Exhibit 10.24
QLIK TECHNOLOGIES INC.
OMNIBUS STOCK OPTION AND AWARD PLAN
OMNIBUS STOCK OPTION AND AWARD PLAN
THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (the “Agreement”) is made and entered into as
of the 1st day of October, 2004, by and between QLIK TECHNOLOGIES INC., a Delaware
corporation (the “Corporation”), and Xxxxxxxxx Xxx (the “Participant”).
Statement of Purpose
The Participant is a consultant of the Corporation or a Subsidiary who provides, and is
expected to continue to provide, significant contributions to the success of the Corporation or a
Subsidiary. To recognize this service and to provide an incentive for future service, the
Participant is hereby granted a Non-Qualified Stock Option to purchase shares of the Corporation’s
Series A Common Stock pursuant to the terms of the Qlik Technologies Inc. Omnibus Stock Option and
Award Plan (the “Plan”). In that regard, the Corporation and the Participant desire to restrict
the sale of the shares of the Corporation’s Series A Common Stock issuable to the Participant upon
exercise of the option granted hereunder to provide for the repurchase of such shares in certain
instances on the terms and conditions hereinafter set forth. Capitalized terms used and not
otherwise defined in this Agreement shall have the meanings set forth in the Plan.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Award.
(a) First Option. The Participant is hereby granted the option to purchase Seven
Hundred Twenty-Two Thousand Four Hundred (722,400) shares of the Corporation’s Series A Common
Stock (the “First Option”). The Option Period for the First Option shall commence on the Grant
Date, October 1, 2004, and shall terminate on September 30, 2014. The Option Price for the First
Option shall be $0.63 per share.
(b) Second Option. If the Consulting Agreement between the Corporation and the
Participant dated October 1, 2004 (the “Consulting Agreement”) is extended as provided in Section
1.4 thereof, the Participant will automatically be granted the option to purchase Three Hundred
Sixty-One Thousand Two Hundred Two (361,202) shares of the Corporation’s Series A Common Stock (the
“Second Option”). The Option Period for the First Option shall commence on the Grant Date, October
1, 2005, and shall terminate on September 30, 2015. The Option Price for the Second Option shall
be Fair Market Value per share determined as of the Grant Date for the Second Option. The First
Option and the Second Option are collectively referred to hereinafter as the “Option.”
2. Vesting and Exercise of Options.
(a) First Option. Except as otherwise provided hereunder, the First Option shall vest
and be exercisable from time to time in accordance with the following schedule (purchase may be
cumulative); provided, that as of each such date the Participant is still engaged by the
Corporation pursuant to the terms of the Consulting Agreement:
On or after the dates set forth below, the right to purchase up to the following number of
shares subject to the First Option may be exercised:
| Date | Number of Shares | |||
October 31, 2004 |
60,200 | |||
November 30, 2004 |
60,200 | |||
December 31, 2004 |
60,200 | |||
January 31, 2005 |
60,200 | |||
February 28, 2005 |
60,200 | |||
March 31, 2005 |
60,200 | |||
April 30, 2005 |
60,200 | |||
May 31, 2005 |
60,200 | |||
June 30, 2005 |
60,200 | |||
July 31, 2005 |
60,200 | |||
August 31, 2005 |
60,200 | |||
September 30, 2005 |
60,200 | |||
(b) Second Option. Except as otherwise provided hereunder, the Second Option shall
vest and be exercisable from time to time in accordance with the following schedule (purchases may
be cumulative); provided, that as of each such date the Participant is still engaged by the
Corporation pursuant to the terms of the Consulting Agreement:
On or after the dates set forth below, the right to purchase up to the following number of
shares subject to the Second Option may be exercised:
| Date | Number of Shares | |||
October 31, 2005 |
30,100 | |||
November 30, 2005 |
30,100 | |||
December 31, 2005 |
30,100 | |||
January 31, 2006 |
30,100 | |||
February 28, 2006 |
30,100 | |||
March 31, 2006 |
30,100 | |||
April 30, 2006 |
30,100 | |||
May 31, 2006 |
30,100 | |||
June 30, 2006 |
30,100 | |||
July 31, 2006 |
30,100 | |||
August 31, 2006 |
30,100 | |||
September 30, 2006 |
30,102 | |||
3. Termination of Options.
(a) The Option may not be exercised after the expiration of the applicable Option Period and
is only exercisable as provided in Section 4 of this Agreement. The Option hereby granted shall
terminate and be of no force or effect upon the expiration of the applicable Option Period. In
addition, if the Participant has a Termination of Service during the applicable Option Period for
any reason, the unvested portion of the Option shall terminate.
2
(b) Subject to the limitations set forth in this Agreement and in the Plan, the Participant
may exercise the vested portion of the Option in whole or in part at any time or from time to time
from the applicable Grant Date until the first to occur of:
(i) one year following the date of the Participant’s Termination of Service for any
reason other than death or Disability;
(ii) one year following the date of the Participant’s death, if a consultant at the
time of death (during which one year period the Option may be exercised (to the extent
otherwise exercisable) by the person to whom the Participant’s right hereunder shall have
passed by will or by the laws of decent and distribution (hereinafter, a “Successor”));
(iii) one year following the date of the Participant’s Termination of Service due to
Disability; or
(iv) the expiration of the Option Period.
4. Exercise of Options.
(a) Notice of Exercise. The Option may be exercised by written notice to the
Corporation at the address set forth in Section 10 hereof, or such other address to which the
principal office of the Corporation may be relocated, which notice shall: (i) be signed by the
Participant (or, if applicable, by the Participant’s Successors); (ii) state the number of shares
with respect to which the Option is being exercised; and (iii) contain such other information as
the Committee may require.
(b) Payment of Option Price. Payment in full of the Option Price shall be made at the
time of the written notice of exercise of the Option: (i) in cash or by check payable to the order
of the Corporation; (ii) by delivery of shares of Series A Common Stock already owned by and in the
Participant’s possession; or (iii) any combination thereof. Shares of Series A Common Stock which
the Participant previously held and surrendered in accordance with rules and regulations adopted by
the Committee for the purpose of making full or partial payment of the Option Price shall be valued
for such purpose at the Fair Market Value thereof on the date the Option, or portion thereof, is
exercised.
(c) Conditions to Exercise. As a condition to the exercise of the Option and the
issuance of shares of the Corporation’s Series A Common Stock upon exercise thereof, the
Corporation may:
(i) require the Participant to satisfy any qualifications that may be necessary or
appropriate to evidence compliance with any applicable law or regulation and make any
representation or warranty with respect thereto as may be requested by the Corporation; and
(ii) obtain such agreements or undertakings from the Participant, if any, as the
Corporation may deem necessary or advisable to insure that the Participant is bound with
respect to any transfer or other restrictions that may be contained in any agreement among,
or restricting the rights of, the Corporation’s Series A Common Stock stockholders at the
time of exercise, or with respect to any restrictions imposed upon stockholders by
underwriters in connection with a public offering referred to in Section 9.
(d) Certificates. As soon as practicable after each of the Participant’s notice of
exercise described in Section 4(a) above and the Option Price have been received by the
Corporation, the Corporation shall deliver to the Participant a stock certificate registered in the
Participant’s name representing the shares of Series A Common Stock to be issued under the Option.
3
(e) Acceleration.
(i) If there is a Change of Control during the Initial Term (as defined in the Consulting
Agreement), the shares subject to the First Option shall vest in full.
(ii) If there is a Change of Control during the Second Term (as defined in the Consulting
Agreement), the shares subject to the Second Option shall vest in full.
5. Representations of Participant. The Participant represents and agrees as follows:
(a) Ownership of Shares. Following exercise of all or a portion of the Option, the
Participant will be the owner of the shares of the Series A Common Stock of the Corporation issued
upon exercise (the “Award Shares”), free and clear of any liens or encumbrances, except for
restrictions set forth in the Plan, any agreement among the Series A Common Stock stockholders, or
otherwise referenced herein. The Participant agrees that this Agreement shall be applicable to
such Award Shares.
(b) No Registration of Shares. The Participant acknowledges that, in addition to the
restrictions on transfer contained in this Agreement, the Participant has been informed by the
Corporation that, inasmuch as the Award Shares have not been registered under the Securities Act of
1933, as amended (the “Act”) such securities must be held indefinitely unless subsequently
registered or an exemption from registration is available. The Participant further acknowledges
that the Corporation is under no obligation either to register the Award Shares or to take any
action to make available any exemption from registration or to supply any information to facilitate
sales of such securities. The Participant represents and warrants that the Award Shares will be
acquired by the Participant for investment and not with a view to the distribution thereof and
that, under no circumstances, shall such securities be transferred in violation of federal or state
securities laws. The Participant further agrees that there shall be either lodged with any stock
transfer agent for the Corporation or noted on the stock transfer records of the Corporation a stop
transfer order against the Award Shares and that there shall be imprinted upon the certificate or
certificates issued to the Participant evidencing such Award Shares a legend reading substantially
as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT SOLD OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER SAID ACT AND LAWS OR THE
AVAILABILITY OF AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF.
THE ISSUER HEREOF MAY, AS A CONDITION TO ITS EFFECTING ANY TRANSFER HEREOF, REQUIRE
AN OPINION OF COUNSEL SATISFACTORY TO IT TO EFFECT THAT SUCH TRANSFER DOES NOT
VIOLATE SAID REQUIREMENT.”
6. Corporation’s Right to Repurchase Award Shares following Termination of Service.
(a) If there is a Termination of Service with respect to the Participant for any reason at
anytime (including, without limitation, the Participant’s death or Disability), then the
Corporation shall have the right, but not the obligation, to repurchase any Award Shares at a
purchase price per share determined as set forth in Section 6(b) below.
(b) The Corporation’s right to repurchase Award Shares following the Participant’s Termination
of Service as provided in Section 6(a) above may be exercised in whole or in part by the
Corporation, if at all, by the Corporation’s delivery to the Participant, within the 90 days
following the
4
Termination of Service, of written notice of the Corporation’s election to exercise. Such
notice shall set forth the number of Award Shares to be purchased and the date and time of closing
of the purchase; provided that the date specified for closing shall not be less than ten (10) days
nor more than thirty (30) days from the date of the notice of election to exercise. To the extent
the Corporation does not initially elect to purchase all of the Award Shares hereunder in its first
written notice of election to exercise, the Corporation may, within the 90-day period specified
herein, elect to exercise its right to purchase any remaining Award Shares by delivering to the
Participant an additional written notice(s) of election to exercise in the manner provided above;
provided, however, that unless otherwise agreed by the parties, the closing date for all purchases
under this Section 6 shall be on the closing date set forth in the initial notice. On or before
the closing set forth in the notice(s) of election to exercise, the Participant shall deliver to
the Corporation the certificates representing the Award Shares being purchased, duly endorsed for
transfer to the Corporation, together with such additional documents or instruments of transfer as
the Corporation may request, in accordance with such notice. The Corporation shall thereafter
promptly send to the Participant payment for such purchase by check or wire transfer based on a per
share purchase price determined as follows:
(i) Termination of Service for Any Reason Other than Termination for Cause. If
the Participant’s Termination of Service is for any reason other than the termination of the
Participant’s consultancy at any time by the Corporation with Cause (as defined below),
including, without limitation, the Participant’s death, Disability or voluntary termination
by the Participant of his or her consultancy with the Corporation, then the per share
purchase price of the Award Shares shall be their Fair Market Value.
(ii) Termination of Service Due to Participant’s Termination With Cause. If
the Participant’s Termination of Service is due to the termination of the Participant’s
consultancy at any time by the Corporation with Cause, then the par share price of the Award
Shares shall be the Option Price per share paid by the Participant for such Award Shares, as
adjusted for any stock splits, stock dividends, recapitalizations or the like (the
“Participant’s Original Cost”).
(c) Definition of “Cause”. For purposes of this Agreement, the term “Cause” shall
mean termination by the Corporation of the Consulting Agreement with the approval of the Board: (i)
because of willful misconduct of a material nature by the Participant in connection with the
performance of the Participant’s duties as consultant; (ii) because of the Participant’s use of
alcohol or illegal drugs that affects the Participant’s ability to perform his or her obligations
as a consultant; (iii) because of the Participant’s conviction of a felony or serious misdemeanor
involving moral turpitude; (iv) because of the Participant’s embezzlement or theft from the
Corporation; (v) because of the Participant’s gross inattention to or dereliction of duty; or (vi)
because of performance by the Participant of any other willful act(s) which the Participant knew or
reasonably should have known would be materially detrimental to the Corporation; provided,
however, that prior to the determination by the Board that “Cause” as described in clauses
(i), (v) or (vi) above has occurred, the Board shall (A) provide to the Participant in writing, in
reasonable detail, the reasons for the Board’s determination that such “Cause” exists, (B) afford
the Participant a reasonable opportunity to remedy any such breach, (C) provide the Participant an
opportunity to be heard at the Board meeting where the final decision to terminate the
Participant’s consultancy hereunder for such “Cause” is to be considered, and (D) make any
decision that such “Cause” exists in good faith.
7. Corporation’s Right of First Refusal.
(a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any
Award Shares (including, without limitation, any securities acquired upon conversion thereof or by
way of any stock split, stock dividend, recapitalization or the like), then the Participant shall
promptly give the
5
Corporation advance written notice of the Participant’s intention to make the Transfer (the
“Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be
transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective
transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the
proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has
received a bona fide firm offer from the prospective transferee(s) and in good faith believes a
binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice.
The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of
intent or other agreement relating to the proposed Transfer. In the event that the transfer is
being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which
specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30)
days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares
at the same price and subject to the same material terms and conditions as described in the
Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion
of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30)
day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the
Corporation gives the Participant notice that it desires to purchase such shares, then payment for
the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be
purchased at a place agreed upon between the parties and at the time of the scheduled closing
thereof, which shall be no later than sixty (60) days after receipt by the Corporation of the
Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective
third-party transferee(s) or unless the value of the purchase price has not yet been established
pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other
than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase
price in the form of cash equal in amount to the fair market value of such property. If the
Participant and the Corporation cannot agree on such cash value within thirty (30) days after
receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of
recognized standing in the United States selected by the Participant and the Corporation or, if
they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the
Transfer Notice, each shall select an appraiser of recognized standing in the United States and
those appraisers shall designate a third appraiser of recognized standing in the United States,
whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared
equally by the Participant and the Corporation. If the time for the closing of the Corporation’s
purchase has expired but the determination of the value of the purchase price offered by the
prospective transferee(s) has not been finalized, then such closing shall be held on or prior to
the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered
Shares within the time periods specified in Section 7(b), the Participant shall have a period of
thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms
and conditions (including the purchase price) no more favorable than those specified in the
Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The
third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued
right of first refusal under this Agreement and must agree in writing to be bound with respect
thereto. In the event the Participant does not consummate the sale or disposition of the Offered
Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first
refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares
by the Participant until such right lapses in accordance with the terms of this Agreement.
Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to
purchase the Offered Shares from the Participant shall not adversely affect its right to make
subsequent purchases from the Participant of Offered Securities.
6
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first
refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse
or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of
a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or
members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a
charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a
registration statement filed with, and declared effective by, the U.S. Securities and Exchange
Commission under the Act; provided, however, that in the event of any transfer made
pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the
Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or
assignee, prior to the completion of the Transfer, shall have executed documents assuming the
obligations of the Participant under this Agreement with respect to the transferred Award Shares in
a form approved by the Corporation. Such transferred Award Shares shall remain subject to the
provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the
“Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign,
transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or
any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other
encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be
null and void, shall not be recorded on the books of the Corporation and shall not be recognized by
the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment,
encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or
descent, or other transfer or disposition of any kind, including, but not limited to, transfers
pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or
receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether
voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award
Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be
required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear
the following legend:
“THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK
OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force
or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public
offering of shares of the Corporation’s common stock at a public offering price which is not less
than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations,
subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or
(ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s
Certificate of Incorporation (as amended from time to time).
8. Change of Control. Notwithstanding any provision of this Agreement to the
contrary, in the event of a Change of Control, the Corporation’s option to repurchase Award Shares
under Section 6 shall terminate simultaneously with the consummation of such Change of Control if
the Participant is actively engaged by the Corporation as a consultant on the date of such Change
of Control, but in such
7
event the Award Shares held by the Participant shall remain subject to the Corporation’s right
of first refusal under Section 7 hereof, and may be subject to restrictions on transferability to
the extent required by applicable law.
9. Market Stand-Off. In connection with any underwritten public offering by the
Corporation of its equity securities pursuant to an effective registration statement filed under
the Act, including the Corporation’s initial public offering, the Participant or any person to whom
the Participant has directly or indirectly transferred any Award Shares under this Agreement (a
“Transferee”) shall not directly or indirectly sell, make any short sale of, loan, hypothecate,
pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option
or other contract for the sale of, or otherwise dispose of or transfer, or agree to engage in any
of the foregoing transactions with respect to, any Award Shares acquired under this Agreement
without the prior written consent of the Corporation or its underwriters. Such restriction (the
“Market Stand-Off”) shall be in effect for such period of time following the date of the final
prospectus for the offering as may be requested by the Corporation or such underwriters. In no
event, however, shall such period exceed 180 days. The Market Stand-Off shall in any event
terminate two years after the date of the Corporation’s initial public offering. In the event of
the declaration of a stock dividend, a spin-off, a stock split, an adjustment in conversion ratio,
a recapitalization or a similar transaction affecting the Corporation’s outstanding securities
without receipt of consideration, any new, substituted or additional securities which are by reason
of such transaction distributed with respect to any Award Shares subject to the Market Stand-Off,
or into which such shares thereby become convertible, shall immediately be subject to the Market
Stand-Off. In order to enforce the Market Stand-Off, the Corporation may impose stop-transfer
instructions with respect to the Award Shares acquired under this Agreement until the end of the
applicable stand-off period. The Corporation’s underwriters shall be beneficiaries of the
agreement set forth in this Section 9. This Section 9 shall not apply to Award Shares registered
in the public offering under the Act, and the Participant or a Transferee shall be subject to this
Section 9 only if the directors and officers of the Corporation are subject to similar
arrangements.
10. Notices. Any notice given hereunder must be in writing and shall be deemed given
when either personally delivered or placed in the United States mail by registered or certified
mail, return receipt requested, postage prepaid, addressed to the parties to whom such notice is
being given at the following addresses:
As to the Corporation:
|
Qlik Technologies Inc. | |
| Science Park Ideon | ||
| X-000 00 Xxxx, Xxxxxx | ||
| Attention: Måns Xxxxxxx, President |
||
As to Participant:
|
last address shown on the books of the Corporation |
11. Failure to Close; Remedies. In the event that the Corporation or the Participant
shall fail or refuse for any reason whatsoever to close the sale or repurchase of Award Shares as
the Corporation or the Participant is obligated by this Agreement, then the other party to the sale
or repurchase (the “non-defaulting party”) shall have the right to exercise any one or more of the
following rights and remedies:
(a) The non-defaulting party shall have the right to recover damages from the defaulting party
for any loss or damage, including reasonable attorneys’ fees, sustained by the non-defaulting party
as a result of such default.
8
(b) The non-defaulting party shall have the right to specifically enforce this Agreement by
seeking an injunction prohibiting the defaulting party from violating the terms of this Agreement
and requiring the defaulting party to purchase or sell the Award Shares, as the case may be.
The rights and remedies of the non-defaulting party under this Section 11 are cumulative and not
alternative and shall be in addition to any and all other rights and remedies available to the
non-defaulting party at law or in equity.
12. Gifts. Nothing contained in this Agreement shall be construed or interpreted so
as to authorize or permit the Participant to transfer the Option by gift to any person or entity.
13. Entire Agreement. This Agreement and the Plan contain the entire understanding
and agreement by and between the parties hereto relating to the subject matter hereof and all prior
or contemporaneous oral or written agreements or instruments are merged herein. No amendment to or
modification of this Agreement shall be effective unless the same is in writing and signed by all
parties hereto. No waiver by any party of any breach by the other of any provision of this
Agreement shall be deemed to be a waiver of any other breaches thereof or the waiver of any such or
other provision of this Agreement. Subject to the restrictions on assignment and transfer set
forth hereinabove, this Agreement shall be binding upon and inure to the benefit of the parties
hereto, their estates, personal representatives, successors and assigns.
14. Severability. If any provision of this Agreement is declared invalid or
unenforceable as a matter of law, such invalidity or unenforceability shall not affect or impair
the validity or enforceability of any other provisions of this Agreement or the remainder of this
Agreement as a whole.
15. Applicable Law. The validity, construction, interpretation or performance of this
Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
16. Construction. Section headings and subheadings have been inserted herein for
convenience only and shall not be deemed to have any legal effect whatever in the interpretation of
this Agreement. As used herein, the singular shall include the plural, and the plural and
singular. The word “any” means one or more or all, and the conjunction “or” includes both the
conjunctive and disjunctive.
17. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original, and all of which taken together shall constitute one and
the same instrument.
18. No Rights as a Stockholder Until Exercise. Under the Plan, neither the
Participant nor, if applicable, his or her personal representative, shall be nor have any rights or
privileges of a stockholder of the Corporation with respect to any shares of the Corporation’s
Series A Common Stock which may be acquired upon the exercise of the Option, in whole or in part,
prior to the date upon which the Option is actually exercised for such shares in accordance with
the provisions of Section 4 hereof and the certificates representing such shares are issued.
19. Tax Treatment. The Option is not deemed to be an Incentive Stock Option
and therefore does not qualify for special tax treatment under Section 422 of the Code.
[Signature page follows]
9
IN WITNESS WHEREOF, the Corporation and Participant have caused the execution of this
Agreement as of the date hereof, each intending to be legally bound hereby.
| /s/ Måns Xxxxxxx | ||||
| Måns Xxxxxxx | ||||
| President | ||||
| PARTICIPANT | ||||
| /s/ Xxxxxxxxx Xxx | ||||
| Xxxxxxxxx Xxx | ||||
10
