VURV TECHNOLOGY, INC. STOCK OPTION PLAN STOCK OPTION AGREEMENT
VURV
TECHNOLOGY, INC. STOCK OPTION PLAN
Vurv
Technology, Inc., formerly Recruitmax Software, Inc. (“Company”) grants the
Grantee named below an Option to purchase certain shares, specified below, of
the Company’s Common Stock, pursuant to the Vurv Technology, Inc. Stock Option
Plan (“Plan”). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Plan.
1. Identifying
Provisions. The following
terms shall apply to this Option:
(a) Grantee:
(b) Date
of grant:
(c) Number
of shares optioned:
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(d) Option
exercise
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price per share:
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(e) Expiration
date:
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10
years from date of grant; earlier as provided in this
Agreement.
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(f) Option
Type:
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NQSO,
as defined in the Plan. This Option is not intended to meet the
requirements of Code Section 422 and qualify as an Incentive Stock
Option.
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2. Timing
of Purchases. Subject to the
other terms of this Agreement regarding the exercisability of this Option, this
Option may be exercised in accordance with the following:
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No. Shares
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Date When Shares First
Exercisable
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Any
exercise shall be accompanied by a written notice to the Company
specifying the number of shares as to which the Option is being
exercised. Notation of any partial exercise shall be made by
the Company on a schedule attached
hereto.
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The right
of exercise shall be cumulative so that if the Option is not exercised to the
maximum extent permissible as of an applicable date, it shall remain
exercisable, in whole or in part, with respect to all Shares not so purchased as
of such date at any time prior to the expiration date or the earlier termination
of the Option. Notwithstanding anything herein or the Plan to the
contrary, this Option may not be exercised at any time on or after the
expiration date and no Option, whether vested or unvested, may be exercised on
or after the date the Company determines that Grantee breached his
confidentiality agreement with the Company.
3. Exercise:
Payment For and Delivery of Stock. Grantee shall
acquire Shares pursuant to this Option by delivering to the Company a written
notice of exercise, specifying the number of Shares as to which Grantee desires
to exercise this Option and the date on which Grantee desires to complete the
transaction. Grantee shall pay to the Company the full purchase price
of the Shares to be acquired hereunder, in cash, on or before the date specified
for completion of the purchase. Alternatively, such payment may be
made in whole or in part as permitted under the Plan.
The
purchase of the Shares is conditioned upon Xxxxxxx’s execution of an Agreement
of New Shareholder in the form attached hereto as Exhibit A or such other form
as the Company shall require as of the date of exercise, which shall include
such rights of first refusal and repurchase by the Company as the Company shall
determine.
No Shares shall be issued hereunder
until full payment has been made to the Company. If the Company is
required to withhold federal, state or local taxes imposed in connection with
Xxxxxxx’s exercise of this Option, Grantee shall be required to pay all such
withholding in cash as a condition to the receipt of Shares. If the
Grantee, however, fails to tender payment for such withholding, the Company may
withhold from the Grantee sufficient Shares or fractional Shares having a fair
market value equal to such amount.
4. Exercise
Events. The following
additional provisions shall apply to the exercise of this Option:
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(a)
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Exercise after
Termination without Cause or Voluntary Termination. If
the Grantee’s employment is terminated by the Company (and/or Parent,
Subsidiary or affiliate) without Cause and other than by reason of his
death or Disability, or the Grantee voluntarily terminates his employment,
Grantee shall be entitled to exercise this Option to the extent vested as
of his date of termination of employment until the thirtieth (30th) day
following the date of termination of employment. To the extent
not exercised by such date, vested Options shall expire and be
forfeited. Unvested Option shares expire and are forfeited as
of the date of termination of
employment.
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(b)
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Exercise after
Termination for Cause. If Xxxxxxx’s employment is
terminated by the Company (and/or Parent, Subsidiary or affiliate) for
Cause, Xxxxxxx’s right to
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exercise
any Options, vested or unvested, shall immediately expire and be forfeited
on the date of such termination of
employment.
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(c)
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Exercise after Death
or Disability. Grantee or his guardian or legal
representative shall be entitled to exercise this Option, to the extent
vested, until the 180th day following (i) Xxxxxxx’s death, or (ii) the
effective date of Xxxxxxx’s termination of employment by reason of his
Disability. To the extent not exercised on or prior to such
180th day, the Options shall expire and be forfeited. Unvested
Option shares expire and are forfeited as of the date of death or the date
of termination of employment by reason of
Disability.
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5. Nontransferability. The Grantee may
not transfer the Option, in whole or in part, except by will or the laws of
descent and distribution, and during the lifetime of the Grantee, the Option
will be exercisable only by the Grantee or his guardian or legal
representative.
6. Changes
in Capital Structure. If the
outstanding Shares of the Company are increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation by reason of any reorganization, merger,
consolidation, plan of exchange, recapitalization, reclassification, stock
split, reverse stock split, combination of shares, dividend payable in shares,
or other similar event, the Committee shall make appropriate adjustment to the
number and class of Shares or other securities subject to the Option and the
purchase price for such Shares or other securities. The Committee’s
adjustment shall be made in accordance with Section 4.2 of the Plan and shall be
effective, final, binding and conclusive for all purposes of the Plan and this
Agreement.
If any
such adjustment provided for in this Paragraph 6 requires the approval of
stockholders of the Company in order to enable the Company to adjust the Option,
then no such adjustment shall be made without the required stockholder
approval. In the event of a proposed sale of all or substantially all
of the assets of the Company or the merger of the Company with or into another
corporation or other entity in which the assumption of the Option is not agreed
to, the Grantee will have such rights to exercise the Option as set forth in
Section 4.2 of the Plan.
7. Rights
in Shares Before Issuance and Delivery. Grantee, or his
guardian, legal representative, administrator or legatee if he is deceased,
shall have no rights as a stockholder with respect to any stock covered by this
Option until the date of issuance of the stock certificate to him for such stock
after receipt of the consideration in full set forth herein, or as may be
approved by the Company. No adjustments shall be made for dividends,
whether ordinary or extraordinary, whether in cash, securities, or other
property, for distributions in which the record date is prior to the date for
which the stock certificate is issued.
8. Requirements
of Law. The certificate or
certificates representing the shares of the Common Stock to be issued or
delivered upon exercise of this Option may bear a legend evidencing the
foregoing and other legends required by any applicable agreement or securities
laws. Furthermore, nothing herein shall require the Company to issue
any stock upon exercise of this Option if the issuance would, in the opinion of
counsel for the Company, constitute a violation of the Securities Act of 1933,
as amended, the Delaware securities laws, or any other applicable rule or
regulation then in effect.
9. Disposition
of Shares and Restrictions. If so required by
the Company, no stock shall be acquired upon exercise of this Option unless and
until the Grantee has properly executed a valid stock transfer restriction
agreement, provided by the Company.
10. No
Right to Continued Employment. This
Option shall not confer upon the Grantee any right with respect to continued
employment with the Company or any subsidiary, nor shall it interfere in any way
with the right of the Company or any subsidiary to terminate the Grantee’s
employment at any time.
11. The
Vurv Technology, Inc. Stock Option Plan. Grantee
hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all
terms and provisions thereof and as the same shall have been amended from time
to time in accordance with the terms thereof, provided that no such amendment
shall deprive the Grantee, without his consent, of this Option or any of his
rights hereunder. Grantee further acknowledges and agrees that in the
event of any conflict herewith, the provisions of the Plan shall govern and
control, and this Agreement or the applicable provision hereof shall
automatically be deemed modified to have conformed at all times. The
terms and provisions of the Plan, as amended from time to time, are fully
incorporated herein by this reference.
12. Withholding
of Taxes. The Company has the right to deduct from any
distribution of cash to the Grantee an amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be withheld
(the “Withholding Taxes”) with respect to the Option. If the Grantee
is entitled to receive Shares upon exercise of the Option, the Grantee shall pay
the Withholding Taxes (if any) to the Company in cash prior to the issuance of
such Shares. In satisfaction of the Withholding Taxes, the Grantee
may make a written election (the “Tax Election”), which may be accepted or
rejected in the discretion of the Committee, to have withheld a portion of the
Shares issuable to him upon exercise of the Option, having an aggregate Fair
Market Value equal to the Withholding Taxes, provided that if the Grantee may be
subject to liability under Section 16(b) of the Securities Exchange Act of 1934,
the election must comply with the requirements of such Act.
13. Notices. Any notice to be given
to the Committee shall be addressed to the Committee in care of the Company at
its principal office, and any notice to be given to the Grantee shall be
addressed to him at the address given beneath his signature hereto or at such
other address as the Grantee may hereafter designate in writing to the
Company. Any such notice shall be deemed duly given when enclosed in
a properly sealed envelope or wrapper addressed as aforesaid, registered or
certified, and deposited, postage and registry or certification fee prepaid, in
a post office or branch post office regularly maintained by the United States
Postal Service.
14. Miscellaneous. This Agreement and the
Plan constitute the entire agreement and understanding between the Company and
the Grantee and may not be changed, modified or amended by oral statements to
the contrary, but only by a written document signed by both parties
hereto. This Agreement shall be binding on and inure to the benefit
of the parties hereto, and their respective heirs, legatees, successors and
assigns. This Agreement shall be construed in accordance with the
laws of the State of Florida.
15. Deadline
for Execution of Agreement. This document
constitutes an offer by the Company to enter into an Agreement under the terms
and conditions herein set forth. Said offer will expire and terminate
without further notice at 5:00 p.m. (prevailing local time at the Company’s
principal office) on September
15, 2005, unless sooner accepted by the Grantee by delivering a copy of
this Agreement, executed by the Grantee, to the Company on or before said time
and date.
IN
WITNESS THEREOF, the Company has granted this Option on the date of grant
specified above.
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ACCEPTED:
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Vurv
Technology, Inc.
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______________________________
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By:_________________________________
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Grantee:
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Its:_________________________________
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Address:
Date: __________________________ Date:
_____________________________
THE
VURV TECHNOLOGY, INC. 2004 STOCK OPTION PLAN
INCENTIVE
STOCK OPTION AGREEMENT
[NAME
OF EMPLOYEE]
NOTATIONS
AS TO PARTIAL EXERCISE
Number
of Balance
of
Date
of Purchased
Shares
on Authorized Notation
Exercise Shares
Option
Signature Date
EXHIBIT
A
To the
Board of Directors of
Vurv
Technology, Inc.
Agreement of New
Shareholder
In connection with the purchase of
___________ shares of stock (“Shares”) of Vurv Technology, Inc., a Delaware
corporation (“Company”), as appears on the attached Exercise and Subscription
Agreement, the undersigned hereby represents and warrants as
follows:
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1.
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The
Shares are being purchased for the undersigned’s own account without the
participation of any other person, with the intent of holding the Shares
for investment and without the intent of participating directly, or
indirectly, in a distribution of the Shares and not with a view to, or for
resale in connection with, any distribution of the Shares or any portion
thereof, nor is the undersigned aware of the existence of any distribution
of the Company's securities.
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2.
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The
undersigned is not acquiring the Shares based upon any representation,
oral or written, by any person with respect to the future value of, or
income from, the Shares but rather upon an independent examination and
judgment as to the prospects of the
Company.
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3.
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The
Shares were not offered to the undersigned by means of publicly
disseminated advertisements or sales literature, nor is the undersigned
aware of any offers made to other persons by such
means.
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4.
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The
undersigned acknowledges that the undersigned must continue to bear the
economic risk of the investment in the Shares for an indefinite period and
recognizes that the Shares will be (a) sold without registration under any
state or Federal law relating to the registration of securities for sale;
(b) issued and sold in reliance on the exemption from registration under
Fla. Stat. Section 517.061(11); and (c) issued and sold in reliance on the
exemption from registration under the Securities Act of 1933 (“1933 Act”)
including Sections 3(a)(11), 3(b) and/or 4(2) of the 1933 Act, among
others.
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5.
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The
undersigned agrees as follows:
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5.1 The
Shares will not be offered for sale, sold or transferred other than (a) pursuant
to an effective registration under all applicable state securities laws and
regulations (together, the “State Acts”) or in a transaction which is otherwise
in compliance with the State Acts; and (b) pursuant to an effective registration
under the 1933 Act or in a transaction otherwise in compliance with the 1933
Act. The Company shall be entitled to rely upon an opinion of counsel
satisfactory to it with respect to compliance with the above
laws. The Company makes no representation that the Shares will ever
be registered or that there will ever be a public market for the
Shares.
5.2 The
Company will be under no obligation to register the Shares or to comply with any
exemption available for sale of the Shares without registration, and the
information or conditions necessary to permit routine sales of securities of the
Company
under
Rule 144 of the 1933 Act are not now available and no assurance has been given
that they will become available. The Company is under no obligation
to act in any manner so as to make Rule 144 available with respect to the
Shares.
5.3 The
Company may, if it so desires, refuse to permit the transfer of the Shares
unless the request for transfer is accompanied by an opinion of counsel
acceptable to the Company to the effect that neither the sale nor the proposed
transfer will result in any violation of the 1933 Act or the State
Acts.
5.4 A
legend indicating the Shares have not been registered under such laws and
referring to the restrictions on transferability and sale of the Shares may be
placed on the certificate or certificates delivered to the undersigned or any
substitute therefor and any transfer agent of the Company may be instructed to
require compliance therewith.
6. The
undersigned agrees to the following right of first refusal:
6.1 Condition to
Transfer. Should the undersigned (including any transferee of
the undersigned) desire to transfer all or less than all of the Shares (“Offered
Shares”) owned by the undersigned and should the undersigned have received a
bona fide offer from a third party to purchase the Offered Shares, the
undersigned shall give notice to the Company (“Offer Notice”) of such bona fide
offer to purchase the Offered Shares. The Offer Notice shall contain
complete details concerning the proposed purchase, including a copy of the third
party’s offer which has been accepted subject to the terms and conditions of
this Agreement. The Company reserves the right to determine that an
offer is not bona fide and to refuse to transfer the Shares to such third
party.
6.2 Exercise of Right and Option
by Company. In the event of the giving of any Offer Notice as
provided above, the Company shall have the right and option to purchase all, or
a portion, of the Offered Shares proposed to be transferred. Such
option shall be exercised by written notice (“Acceptance”) to the undersigned
within thirty (30) days after receipt of the Offer Notice (“Effective Date”) by
the Company. The Acceptance shall state the number of Offered Shares
that the Company elects to purchase.
6.3 Purchase
Price. The purchase price per share shall be the per share
purchase price stated in or determined based upon the third party’s bona fide
offer to purchase the Offered Shares as indicated in the bona fide offer and in
the Offer Notice. The purchase of the Offered Shares shall be on the
terms and conditions stated in said bona fide offer. The purchase,
sale, and transfer of the Offered Shares shall take place on a date fixed by the
Company which must be a date within sixty (60) days after the Effective
Date.
6.4 Failure to Exercise
Timely. If the Company fails to timely exercise the option to
purchase all of the Offered Shares, the undersigned shall be free to transfer
all of the Offered Shares which are not to be purchased by the Company to the
third party who made the bona fide offer at the price per share and on the terms
and conditions stated in the said offer and Offer Notice. If such
sale is not consummated within one hundred twenty (120) days after the Effective
Date, then such Offered Shares shall remain subject
to this
Agreement and the undersigned must again comply with the procedure set forth in
this Section 6 before transferring any Shares to a third party.
6.5 Transferee Acceptance of
this Agreement. Anything in this Section 6 to the contrary
notwithstanding, the undersigned may not transfer any Shares and the Company
shall not be required to register such transfer, unless the transferee of such
Shares agrees in writing to become a party to a shareholder’s agreement with the
Company containing similar terms as set forth in this Agreement.
7. The
undersigned agrees to the following right of repurchase:
7.1 Repurchase by
Company. Upon the occurrence of any Repurchase Event (as
defined below), the Company shall have the right and option (but not the
obligation) to purchase all or any portion of the Shares then owned by the
undersigned, including any transferee of the undersigned. Such option
must be exercised by written notice from the Company to the undersigned (or his
representative) within ninety (90) days after the date that a Repurchase Event
occurs and becomes known to the Company. The written notice by the
Company shall state the number of Shares that the Company elects to
purchase. For purposes hereof, the term “Repurchase Event” shall
mean: (a) death of the undersigned, (b) Disability (as defined in the Plan) of
the undersigned, (c) termination of the undersigned’s employment with the
Company or any Affiliated Entity by the undersigned for any reason or by the
Company for or without Cause (as defined in the Plan), (d) breach by the
undersigned of any confidentiality or restrictive covenant agreement between the
undersigned and the Company, or (e) the bankruptcy or adjudication of insolvency
of the undersigned.
7.2 Purchase
Price. The purchase price for the Shares purchased pursuant to
the terms of this Section 7 shall be the Fair Market Value (as defined in the
Plan) of the Shares as of the Repurchase Event, as determined by the Company’s
Board of Directors, provided that if the Repurchase Event is termination of the
undersigned’s employment for Cause or breach by the undersigned of any
confidentiality or restrictive covenant agreement with the Company, the price
for the Shares shall be the price per share at which the Shares were acquired by
the undersigned.
7.3 Payment. At
the election of the Company, the purchase price shall be paid either in full in
cash at closing, or a minimum of twenty percent (20%) in cash on the Closing
Date (as hereinafter defined), with the remainder being payable in four (4)
equal annual installments of principal, plus accrued interest at an annual rate
equal to the prime rate of interest as quoted in The Wall Street Journal as of
the Closing Date, minus two percent (2%), with the first installment plus
accrued interest payable one (1) year after the Closing Date and with the
remaining installments payable on an annual basis thereafter. In the
event the purchase price is paid in installments, the installment obligation
shall be evidenced by an installment promissory note or notes of the Company to
the undersigned. Each such note shall provide that the Company shall
have the privilege at any time of prepaying all or any part thereof at any time
with interest to the date of prepayment.
7.4 Closing. The
closing of the purchase of the Shares of the undersigned shall occur on a date
fixed by the Company (“Closing Date”) upon written notice to the undersigned
which shall be a date within sixty (60) days after the date the Company provides
notice to the undersigned of its exercise of the rights
hereunder.
8. The
undersigned may, without the consent of the Company and without compliance with
Section 6 hereunder, transfer (other than pursuant to any divorce or separation
proceeding or settlement) all or any portion of the Shares to a Permitted
Transferee (as defined below); provided, however, that prior to such transfer,
such Permitted Transferee shall agree in writing to be bound by the obligations
imposed upon the undersigned under this Agreement as if such transferee were
originally a signatory to this Agreement. For the purposes of this
Agreement, the term “Permitted Transferee” means the undersigned’s spouse,
parents, children (natural or adopted), stepchildren, or grandchildren, or any
trust the beneficiaries of which include only the undersigned and his or her
spouse, parents, children (natural or adopted), stepchildren, or
grandchildren.
9. This
Agreement shall terminate, and the certificates representing the Shares subject
to this Agreement shall be released from the terms of this Agreement on the
occurrence of the earlier of any of the following events:
9.1 Cessation
of the Company’s business;
9.2 Written
agreement of the Company and the undersigned;
9.3 Bankruptcy,
receivership or dissolution of the Company;
9.4 The
effectiveness of a registration statement filed with the Securities and Exchange
Commission covering the Shares; or
9.5 The
twentieth (20th) anniversary of the date of this Agreement.
The
agreements and representations made by the undersigned herein extend to and
apply to the Shares issued pursuant to the attached Subscription
Agreement. Acceptance by the undersigned of the certificate
representing the Shares shall constitute a confirmation by the undersigned that
all agreements and representations made herein are true and correct at such
time. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but together shall constitute one and
the same instrument.
Very truly yours,
Grantee:
_______________________
SHARE EXERCISE AND
SUBSCRIPTION AGREEMENT
To the
Board of Directors of
Vurv
Technology, Inc.,
The
undersigned (“Undersigned”) exercises an option for _______ shares (“Shares”) of
common stock of Vurv Technology, Inc., a Delaware corporation (“Company”) under
the Stock Option Agreement dated ________________ at an exercise price per share
of $________.
As
consideration for the Shares, the Undersigned tenders cash payment of $_________
to the Company. The Undersigned agrees that the Undersigned
shall not be entitled to issuance of the Shares, nor to vote the Shares, until
the purchase price for the Shares has been fully executed and delivered to the
Company, all applicable withholding taxes have been paid or tendered to the
Company, and the Undersigned has executed an Agreement of New
Shareholder.
The
Undersigned represents that this purchase of the Shares is for investment for
the Undersigned's own account.
This ___
day of _____________, 20__.
Grantee:
_______________________
ACCEPTED:
Vurv
Technology, Inc.
By:___________________________
Its:___________________________
Date:
