STOCK OPTION AGREEMENT COMMUNICATION INTELLIGENCE CORPORATION
EXHIBIT
4.2
2009
STOCK COMPENSATION PLAN
THIS STOCK OPTION AGREEMENT (this
"Agreement"),
dated as _______________, (the “Effective Date”) is entered into by and between
Communication Intelligence Corporation, a company organized in the State of
Delaware (the
"Company"), and
______________ (the "Optionee"), pursuant
to the Communication Intelligence Corporation 2009 Stock Compensation Plan, as
in effect and as amended from time to time (the "Plan").
WHEREAS, the Company has determined
under the Plan to make one or more grants to the Optionee of options to purchase
Company common stock, pursuant to the terms and in the amounts set forth on
Exhibit A, which shall be amended by the Company from time to time to reflect
additional grants;
NOW, THEREFORE, in consideration of the
mutual covenants and promises hereinafter set forth and for other good and
valuable consideration, the parties hereto hereby mutually covenant and agree as
follows:
1. Incorporation By Reference;
Plan Document Receipt. This Agreement is subject in all
respects to the terms and provisions of the Plan (including, without limitation,
any amendments thereto adopted at any time and from time to time unless such
amendments are expressly intended not to apply to the grant of the option
hereunder), all of which terms and provisions are made a part of and
incorporated in this Agreement as if they were each expressly set forth
herein. The Optionee hereby acknowledges receipt of a true copy of
the Plan and that the Optionee has read the Plan carefully and fully understands
its content. In the event of any conflict between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall
control. Capitalized terms not defined herein have the meaning set
forth in the Plan.
2. Grant of
Option. The Company hereby grants to the Optionee the stock
option(s) set forth on Exhibit A, as amended from time to time, (each a "Stock Option") to
acquire from the Company the aggregate number of Option Shares set forth on
Exhibit A (the "Option
Shares"). The type of stock option (incentive or
nonqualified), Grant Date, Vesting Date, Expiration Date and Per Share Exercise
Price for each Stock Option shall be as set forth on Exhibit A. The
Company shall deliver an amended Exhibit A to the Optionee for each additional
Stock Option grant after the Effective Date.
3. No Dividend
Equivalents. The Optionee shall not be entitled to receive a
cash payment in respect of the Option Shares underlying the Stock Options on any
dividend payment date for the Shares.
4. Exercisability of Each Stock
Option.
4.1 Each Stock Option is or
shall become exercisable as to 100% of the applicable Option Shares on
its Vesting Date, provided the Optionee is then employed by or performing
services for the Company and/or one of its Subsidiaries or
Affiliates.
EXHIBIT
4.2
4.2 Unless
earlier terminated in accordance with the terms and provisions of the Plan
and/or this Agreement, each Stock Option shall expire and shall no longer be
exercisable following its Expiration Date (as set forth in Exhibit A), with the
period from the Vesting Date to the Expiration Date known as the "Option
Period".
4.3 The
Committee may, in its sole discretion, accelerate the exercisability of any
portion of the unexercisable portion of a Stock Option at any time, including,
but not limited to, upon a Participant's death or Disability (as defined in
Sections 4.4 and 4.5 below). In no event shall any Stock Option be
exercisable for a fractional Share.
4.4 For
purposes of this Agreement, "Disability," if the
Participant is a party to an employment agreement, shall have the same meaning
as in such employment agreement, otherwise, "Disability" means
disability as determined by the Committee in accordance with the standards and
procedures similar to those under the Company's or the relevant Affiliate's
long-term disability plan, if any. Subject to the first sentence of
this Section 4.4, at any time that the Company or the relevant Affiliate does
not maintain a long-term disability plan, "Disability" shall
mean any physical or mental disability which is determined to be total and
permanent by a doctor selected in good faith by the Company or the relevant
Affiliate.
5. Method of Exercise and
Payment. Each Stock Option
shall be exercised by the Optionee by delivering to the Chief Financial Officer
of the Company or his/her designated agent on any business day a written notice,
in such manner and form as may be required by the Company, specifying the number
of Option Shares the Optionee then desires to acquire (the "Exercise
Notice"). The Exercise Notice shall be accompanied by payment
of the aggregate Per Share Exercise Price set forth on Exhibit A for such number
of the Option Shares to be acquired upon such exercise plus an amount sufficient
to pay all taxes required to be withheld by any governmental
agency. Such payment shall be made in the manner set forth in Section
5.6 of the Plan.
6. Termination of Service
Relationship.
6.1 If
the Optionee's Service Relationship with the Company and its Subsidiaries
terminates for any reason, any then unexercisable portion of the Stock Options
shall be forfeited by the Optionee and cancelled by the Company.
6.2 If
the Optionee's Service Relationship with the Company and its Subsidiaries
terminates for any reason other than due to the Optionee's death or Disability,
the Optionee's rights, if any, to exercise any then exercisable portion of the
Stock Options shall terminate ninety (90) days after the date of such
termination, but not beyond the expiration of the Option Period, and thereafter
the Stock Options shall be forfeited by the Optionee and cancelled by the
Company.
6.3 If
the Optionee's Service Relationship with the Company and its Subsidiaries is
terminated due to the Optionee's death, or Disability, the Optionee (or, in the
case of the Optionee's death, the Optionee's estate, designated beneficiary or
other legal representative, as the case may be, as determined by the Committee)
shall have the right, to the extent exercisable immediately prior to any such
termination, to exercise the Stock Options at any time within the one (1) year
period following such termination, but not beyond the expiration of the Option
Period, and thereafter the Stock Options shall be forfeited by the Optionee and
cancelled by the Company.
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EXHIBIT
4.2
6.4 The
Committee may, in its sole discretion, determine that all or any portion of the
Stock Options, to the extent exercisable immediately prior to
the termination of the Optionee’s Service Relationship
with the Company and/or one of its Subsidiaries for any reason, may remain
exercisable for an additional specified time period after the relevant period
specified above in this Section 6 expires (subject to any other applicable terms
and provisions of the Plan and this Agreement), but not beyond the expiration of
the Option Period.
6.5 If
the Affiliate of the Company engaging the Optionee ceases to be an Affiliate of
the Company, that event shall be deemed to constitute a termination of the
Optionee’s Service Relationship described in Section 6.2 above (in connection
with such termination of employment, the provisions in Section 6.1 would also be
applicable).
7. Non-transferability. The Stock Option
is not transferable, except by will or by the applicable laws of descent and
distribution. Following the Optionee’s death, the Stock Option may be
exercised by the Optionee’s heirs or the personal representative of his or her
estate.
8. Entire Agreement;
Amendment. This Agreement, together with the Plan contains the
entire agreement between the parties hereto with respect to the subject matter
contained herein, and supersedes all prior agreements or prior understandings,
whether written or oral, between the parties relating to such subject
matter. The Committee shall have the right, in its sole discretion,
to modify or amend this Agreement from time to time in accordance with and as
provided in the Plan; provided, however, that no such
modification or amendment shall materially adversely affect the rights of the
Optionee under any Stock Option without the consent of the
Optionee. This Agreement may also be modified or amended by a writing
signed by both the Company and the Optionee. The Company shall give
written notice to the Optionee of any such modification or amendment of this
Agreement as soon as practicable after the adoption thereof.
9. Notices. Any
Exercise Notice or other notice which may be required or permitted under this
Agreement shall be in writing, and shall be delivered in person or via facsimile
transmission, overnight courier service or certified mail, return receipt
requested, postage prepaid, properly addressed as follows:
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(i) If
such notice is to the Company, to the attention of Chief Financial Officer
or at such other address as the Company, by notice to the Optionee, shall
designate in writing from time to
time.
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(ii) If
such notice is to the Optionee, at his or her address as shown on the
Company's records, or at such other address as the Optionee, by notice to
the Company, shall designate in writing from time to
time.
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EXHIBIT
4.2
10. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to the
principles of conflict of laws thereof.
11. Compliance with
Laws. The issuance of this Stock Option (and the Option Shares
upon exercise of this Stock Option) pursuant to this Agreement shall be subject
to, and shall comply with, any applicable requirements of any foreign and U.S.
federal and state securities laws, rules and regulations (including, without
limitation, the provisions of the Securities Act of 1933, the Securities
Exchange Act of 1934 and the respective rules and regulations promulgated
thereunder) and any other law or regulation applicable thereto. The
Company shall not be obligated to issue any Stock Option or any of the Option
Shares pursuant to this Agreement if any such issuance would violate any such
requirements. The Company reserves the right to further modify this
Agreement to the extent necessary to conform to applicable law.
12. Binding Agreement;
Assignment. This Agreement shall inure to the benefit of, be
binding upon, and be enforceable by the Company and its successors and
assigns. The Optionee shall not assign (except as provided by Section
7 hereof) any part of this Agreement without the prior express written consent
of the Company.
13. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
instrument.
14. Headings. The
titles and headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
15. Further
Assurances. Each party hereto shall do and perform (or shall
cause to be done and performed) all such further acts and shall execute and
deliver all such other agreements, certificates, instruments and documents as
either party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the Plan and the consummation of
the transactions contemplated thereunder.
16. Severability. The
invalidity or unenforceability of any provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of any provision of this Agreement in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
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EXHIBIT
4.2
IN WITNESS WHEREOF,
the Company has caused this Agreement to be executed by its duly authorized
officer, and the Optionee has hereunto set his hand, all as of the Grant Date
specified above.
By:__________________________________
_____________________________________
Printed Name & Title
_____________________________________
Optionee
Printed Name
Required
only in Community Property States: By his or her signature below, the spouse of
the Optionee, if such Optionee is legally married as of the date of this
Agreement, acknowledges that having read this Agreement and the Plan, and being
familiar with the terms and provisions thereof, agrees to be bound by all the
terms and conditions of this Agreement and the Plan.
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Dated: ________________________
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_____________________________
Spouse’s
Signature
____________________________
Printed
Name
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By his or
her signature below, the Optionee represents that he or she is not legally
married as of the date of this Agreement.
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Dated: _________________________
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____________________________
Signature
of Optionee
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EXHIBIT
4.2
EXHIBIT
A
STOCK
OPTION GRANTS
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Type
of
Option
(ISO
or
NQSO)
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Option
Grant
Date:
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Vesting
Date:
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Expiration
Date:
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Per
Share
Exercise
Price:
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Number
of
Option
Shares:
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