THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
ANZA CAPITAL, INC.
2003 OMNIBUS SECURITIES PLAN
INCENTIVE STOCK OPTION AGREEMENT
INCENTIVE STOCK This Option is intended to be an incentive stock option
OPTION under section 422 of the Internal Revenue Code and will
be interpreted accordingly.
VESTING No Shares will vest until you have performed ---------
(----) months of Service from the commencement of your
employment with the Company. Your Option shall vest as to
-------- of the Shares on the date ------- (----) months
from the Vesting Start Date as shown on the cover sheet.
Thereafter, Shares shall vest at the rate of ------- of the
Shares at the end of each full month thereafter. After you
have completed --------- (----) months of Service, the
number of Shares which vest under this Option at the
Exercise Price shall be equal to the product of the number
of full months of your continuous employment with the
Company ("Service") (including any approved leaves of
absence) from the Vesting Start Date times the number of
Shares covered by this Option times --------. The resulting
number of Shares will be rounded to the nearest whole
number. No additional Shares will vest after your Service
has terminated for any reason.
You should note that you may exercise the Option prior to
vesting. In that case, the Company has a right to repurchase
the unvested shares at the original exercise price if you
terminate employment before vesting in all shares you
purchased. Also, if you exercise before vesting, you should
consider making an 83(b) election. Please see the attached
Tax Summary. The 83(b) election must be filed within 30
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days of the date you exercise.
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TERM Your Option will expire in any event at the close of
business at Company headquarters on the day before the tenth
anniversary (fifth anniversary for a 10% owner) of the Date
of Grant, as shown on the cover sheet. (It will expire
earlier if your Service terminates, as described below.)
REGULAR If your Service terminates for any reason except death,
TERMINATION Disability or for "Cause," your Option will expire at the
close of business at Company headquarters on the 30th day
after your termination date. During that 30-day period, you
may exercise that portion of your Option that was vested on
your termination date.
DEATH If you die while in Service with the Company, your Option
will expire at the close of business at Company headquarters
on the date six months after the date of death. During that
six-month period, your estate or heirs may exercise that
portion of your Option that was vested on the date of death.
If your Service terminates because of your Disability, your
Option will expire at the close of business at Company
headquarters on the date six months after your termination
date. (However, if your Disability is not expected to result
in death or to last for a continuous period of at least 12
months, your Option will be eligible for ISO tax treatment
only if it is exercised within three months following the
termination of your Service.) During that six-month period,
you may exercise that portion of your Option that was vested
on the date of your Disability.
DISABILITY "Disability" means that you are unable to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment.
LEAVES OF ABSENCE For purposes of this Option, your Service does not
terminate when you go on a bona fide leave of absence that
was approved by the Company in writing, if the terms of the
leave provide for continued service crediting, or when
continued service crediting is required by applicable law.
However, your Service will be treated as terminating 30 days
after you went on leave, unless your right to return to
active work is guaranteed by law or by a contract. Your
Service terminates in any event when the approved leave ends
unless you immediately return to active work. The Company
determines which leaves count for this purpose, and when
your Service terminates for all purposes under the Plan. The
Company also determines the extent to which you may exercise
the vested portion of your Option during a leave of absence.
NOTICE OF EXERCISE When you wish to exercise this Option, you must execute
Exhibit A (and, if exercise is prior to vesting, you must
----------
also execute Exhibits B and D). Your exercise will be
------------------
effective when it is received by the Company. If someone
else wants to exercise this Option after your death, that
person must prove to the Company's satisfaction that he or
she is entitled to do so.
FORM OF PAYMENT When you submit Exhibit A, you must include payment of the
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Exercise Price for the Shares you are purchasing. Payment
may be made in one (or a combination) of the following forms
at the discretion of the committee:
- Your personal check, a cashier's check or a money order.
- Shares which you have owned for six months and which
are surrendered to the Company. The value of the
Shares, determined as of the effective date of the
Option exercise, will be applied to the Exercise Price.
- To the extent that a public market for the Shares exists
as determined by the Company, by delivery (on a form
prescribed by the Committee) of an irrevocable
direction to a securities broker to sell Shares and to
deliver all or part of the sale proceeds to the Company
in payment of the aggregate Exercise Price.
- Any other form of legal consideration approved by the
Committee.
WITHHOLDING TAXES You will not be allowed to exercise this Option unless you
make acceptable arrangements to pay any withholding or other
taxes that may be due as a result of the Option exercise or
the sale of Shares acquired upon exercise of this Option.
RESTRICTIONS ON By signing this Agreement, you agree not to exercise this
RESALE Option or sell any Shares acquired upon exercise of this
Option at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise or
sale. In particular, the Company shall have the right to
designate one or more periods of time, each of which shall
not exceed 180 days in length, during which this Option
shall not be exercisable if the Company determines (in its
sole discretion) that such limitation on exercise could in
any way facilitate a lessening of any restriction on
transfer pursuant to the Securities Act or any state
securities laws with respect to any issuance of securities
by the Company, facilitate the registration or qualification
of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of
any exemption from the registration or qualification
requirements of the Securities Act or any applicable state
securities laws for the issuance or transfer of any
securities. Such limitation on exercise shall not alter the
vesting schedule set forth in this Agreement other than to
limit the periods during which this Option shall be
exercisable.
Furthermore, in respect of any underwritten public offering
by the Company, you agree that you will not sell or
otherwise transfer or dispose of any Shares covered by this
Option during a reasonable and customary period of time as
agreed to by the Company and the underwriters, not to exceed
the greater of (a) 180 days following the effective date of
the registration statement of the Company filed under the
Securities Act in respect of such offering and (b) such
other period of time as agreed to by holders of a majority
of the then outstanding Shares. By signing this Agreement
you agree to execute and deliver such other agreements as
may be reasonably requested by the Company or the
underwriter which are consistent with the foregoing or which
are necessary to give further effect thereto. The Company
may impose stop-transfer instructions with respect to the
Shares subject to the foregoing restriction until the end of
such period.
If the sale of Shares under the Plan is not registered
under the Securities Act of 1933, as amended (the
"Securities Act"), but an exemption is available which
requires an investment or other representation, you shall
represent and agree at the time of exercise that the Shares
being acquired upon exercise of this Option are being
acquired for investment, and not with a view to the sale or
distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by
the Company and its counsel.
The Company's In the event that you propose to sell, pledge or otherwise
Right of First transfer to a third party any Shares acquired under this
Refusal Agreement, or any interest in such Shares, the Company shall
have the "Right of First Refusal" with respect to all (and
not less than all) of such Shares. If you desire to transfer
Shares acquired under this Agreement, you must give a
written "Transfer Notice" to the Company describing fully
the proposed transfer, including the number of Shares
proposed to be transferred, the proposed transfer price and
the name and address of the proposed transferee. The
Transfer Notice shall be signed both by you and by the
proposed transferee and must constitute a binding commitment
of both parties to the transfer of the Shares.
The Company and its assignees shall have the right to
purchase all, and not less than all, of the Shares on the
terms described in the Transfer Notice (subject, however, to
any change in such terms permitted in the next paragraph) by
delivery of a Notice of Exercise of the Right of First
Refusal within 30 days after the date when the Transfer
Notice was received by the Company. The Company's rights
under this Subsection shall be freely assignable, in whole
or in part.
If the Company fails to exercise its Right of First Refusal
within 30 days after the date when it received the Transfer
Notice, you may, not later than 60 days following receipt of
the Transfer Notice by the Company, conclude a transfer of
the Shares subject to the Transfer Notice on the terms and
conditions described in the Transfer Notice. Any proposed
transfer on terms and conditions different from those
described in the Transfer Notice, as well as any subsequent
proposed transfer by you, shall again be subject to the
Right of First Refusal and shall require compliance with the
procedure described in the paragraph above. If the Company
exercises its Right of First Refusal, you and the Company
(or its assignees) shall consummate the sale of the Shares
on the terms set forth in the Transfer Notice.
The Company's Right of First Refusal shall terminate upon
the Company's initial public offering.
The Company's Right of First Refusal shall inure to the
benefit of its successors and assigns and shall be binding
upon any transferee of the Shares.
RIGHT OF Following termination of your Service for any reason,
REPURCHASE the Company shall have the right to purchase all of those
vested Shares that you have or will acquire under this
Option (unvested Shares which have been exercised are
subject to a Repurchase Option set forth in Exhibit A). If
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the Company fails to provide you with written notice of its
intention to purchase such Shares before or within 30 days
of the date the Company receives written notice from you of
your termination of Service, the Company's right to purchase
such Shares shall terminate. If the Company exercises its
right to purchase such Shares, the Company will consummate
the purchase of such Shares within 60 days of the date of
its written notice to you. The purchase price for any Shares
repurchased shall be the higher of the fair market value of
the Shares on the date of purchase or the aggregate Exercise
Price for such Shares and shall be paid in cash. The
Company's right of repurchase shall terminate in the event
that Stock is listed on an established stock exchange or is
quoted regularly on the Nasdaq National Market. The fair
market value shall be determined by the Board of Directors
in its sole discretion.
TRANSFER OF OPTION Prior to your death, only you may exercise this Option.
You cannot transfer or assign this Option. For instance, you
may not sell this Option or use it as security for a loan.
If you attempt to do any of these things, this Option will
immediately become invalid. You may, however, dispose of
this Option in your will.
Regardless of any marital property settlement agreement, the
Company is not obligated to honor a Notice of Exercise from
your spouse or former spouse, nor is the Company obligated
to recognize such individual's interest in your Option in
any other way.
RETENTION RIGHTS This Agreement does not give you the right to be retained
by the Company in any capacity. The Company reserves the
right to terminate your Service at any time and for any
reason.
SHAREHOLDER RIGHTS Neither you, nor your estate or heirs, have any rights as
a shareholder of the Company until a certificate for the
Shares acquired upon exercise of this Option has been
issued. No adjustments are made for dividends or other
rights if the applicable record date occurs before your
stock certificate is issued, except as described in the
Plan.
ADJUSTMENTS In the event of a stock split, a stock dividend or a
similar change in the Company's Stock, the number of Shares
covered by this Option and the Exercise Price per share may
be adjusted pursuant to the Plan. Your Option shall be
subject to the terms of the agreement of merger, liquidation
or reorganization in the event the Company is subject to
such corporate activity.
LEGENDS All certificates representing the Shares issued upon
exercise of this Option shall, where applicable, have
endorsed thereon the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO PURCHASE
SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY
AND THE REGISTERED HOLDER, OR SUCH HOLDER'S PREDECESSOR IN
INTEREST. SUCH AGREEMENT IMPOSES CERTAIN TRANSFER
RESTRICTIONS AND GRANTS CERTAIN REPURCHASE RIGHTS TO THE
COMPANY (OR ITS ASSIGNS) UPON THE SALE OF THE SHARES OR UPON
TERMINATION OF SERVICE WITH THE COMPANY. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY
AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY
OF THE COMPANY BY THE HOLDER OF SHARES REPRESENTED BY THIS
CERTIFICATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, OR THE
SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD
ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE
COMPANY IS PROVIDED AN OPINION OF COUNSEL, SATISFACTORY TO
THE COMPANY AND ITS COUNSEL, THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT
REQUIRED."
APPLICABLE LAW This Agreement will be interpreted and enforced under the
laws of the State of Nevada (without regard to their choice
of law provisions).
THE PLAN AND OTHER The text of the Plan is incorporated in this Agreement
AGREEMENTS by reference. Certain capitalized terms used in this
Agreement are defined in the Plan.
This Agreement, including its attachments, and the Plan
constitute the entire understanding between you and the
Company regarding this Option. Any prior agreements,
commitments or negotiations concerning this Option are
superseded.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS
AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN. YOU ALSO ACKNOWLEDGE THAT
YOU HAVE READ SECTION 11, "PURCHASER'S INVESTMENT REPRESENTATIONS" OF
ATTACHMENT A AND THAT YOU CAN AND HEREBY DO MAKE THE SAME REPRESENTATIONS
WITH RESPECT TO THE GRANT OF THIS OPTION.