EXHIBIT 10.3
ISILON SYSTEMS, INC.
AMENDED AND RESTATED 2001 STOCK PLAN
STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Isilon Systems, Inc., a Delaware corporation (the
"Company"), hereby grants to Optionee, an option (the "Option") to purchase the
total number of shares of Common Stock (the "Shares") set forth in the Notice of
Stock Option Grant (the "Notice"), at the exercise price per Share set forth in
the Notice (the "Exercise Price") subject to the terms, definitions and
provisions of the Isilon Systems, Inc. Amended and Restated 2001 Stock Plan (the
"Plan") adopted by the Company, which is incorporated in this Agreement by
reference. Unless otherwise defined in this Agreement, the terms used in this
Agreement shall have the meanings defined in the Plan.
2. DESIGNATION OF OPTION. This Option is intended to be an Incentive Stock
Option as defined in Section 422 of the Code only to the extent so designated in
the Notice, and to the extent it is not so designated or to the extent the
Option does not qualify as an Incentive Stock Option, it is intended to be a
Nonstatutory Stock Option.
Notwithstanding the above, if designated as an Incentive Stock Option, in
the event that the Shares subject to this Option (and all other Incentive Stock
Options granted to Optionee by the Company or any Parent or Subsidiary,
including under other plans of the Company) that first become exercisable in any
calendar year have an aggregate fair market value (determined for each Share as
of the date of grant of the option covering such Share) in excess of $100,000,
the Shares in excess of $100,000 shall be treated as subject to a Nonstatutory
Stock Option, in accordance with Section 5(c) of the Plan.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term in
accordance with the Vesting/Exercise Schedule set out in the Notice and with the
provisions of Section 10 of the Plan as follows:
(a) RIGHT TO EXERCISE.
(i) This Option may not be exercised for a fraction of a share.
(ii) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed by
Section 5 below, subject to the limitations contained in this Section 3.
(iii) In no event may this Option be exercised after the
Expiration Date of the Option as set forth in the Notice.
(b) METHOD OF EXERCISE.
(i) This Option shall be exercisable by execution and delivery of
the Exercise Notice and Restricted Stock Purchase Agreement attached hereto as
Exhibit A or any other form of written notice approved for such purpose by the
Company which shall state Optionee's election to exercise the Option, the number
of Shares in respect of which the Option is being exercised, and such other
representations and agreements as to the holder's investment intent with respect
to such Shares as
may be required by the Company pursuant to the provisions of the Plan. Such
written notice shall be signed by Optionee and shall be delivered to the Company
by such means as are determined by the Plan Administrator in its discretion to
constitute adequate delivery. The written notice shall be accompanied by payment
of the Exercise Price. This Option shall be deemed to be exercised upon receipt
by the Company of such written notice accompanied by the Exercise Price.
(ii) As a condition to the exercise of this Option and as further
set forth in Section 12 of the Plan, Optionee agrees to make adequate provision
for federal, state or other tax withholding obligations, if any, which arise
upon the vesting or exercise of the Option, or disposition of Shares, whether by
withholding, direct payment to the Company, or otherwise.
(iii) The Company is not obligated, and will have no liability
for failure, to issue or deliver any Shares upon exercise of the Option unless
such issuance or delivery would comply with the Applicable Laws, with such
compliance determined by the Company in consultation with its legal counsel.
This Option may not be exercised until such time as the Plan has been approved
by the stockholders of the Company, or if the issuance of such Shares upon such
exercise or the method of payment of consideration for such shares would
constitute a violation of any applicable federal or state securities or other
law or regulation, including any rule under Part 221 of Title 12 of the Code of
Federal Regulations as promulgated by the Federal Reserve Board. As a condition
to the exercise of this Option, the Company may require Optionee to make any
representation and warranty to the Company as may be required by the Applicable
Laws. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to Optionee on the date on which the Option is exercised
with respect to such Shares.
4. METHOD OF PAYMENT. Payment of the Exercise Price shall be by any of the
following, or a combination of the following, at the election of Optionee:
(a) cash or check;
(b) prior to the date, if any, upon which the Common Stock becomes a
Listed Security, by surrender of other shares of Common Stock of the Company
that have an aggregate Fair Market Value on the date of surrender equal to the
Exercise Price of the Shares as to which the Option is being exercised. In the
case of shares acquired directly or indirectly from the Company, such shares
must have been owned by Optionee for more than six (6) months on the date of
surrender (or such other period of time as is necessary to avoid the Company's
incurring adverse accounting charges); or
(c) following the date, if any, upon which the Common Stock is a
Listed Security, delivery of a properly executed exercise notice together with
irrevocable instructions to a broker approved by the Company to deliver promptly
to the Company the amount of sale or loan proceeds required to pay the exercise
price.
5. TERMINATION OF RELATIONSHIP. Following the date of termination of
Optionee's Continuous Service Status for any reason (the "Termination Date"),
Optionee may exercise the Option only as set forth in the Notice and this
Section 5. To the extent that Optionee is not entitled to exercise this Option
as of the Termination Date, or if Optionee does not exercise this Option within
the Termination Period set forth in the Notice or the termination periods set
forth below, the Option shall terminate in its entirety. In no event, may any
Option be exercised after the Expiration Date of the Option as set forth in the
Notice.
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(a) TERMINATION. In the event of termination of Optionee's Continuous
Service Status other than as a result of Optionee's disability or death or for
Cause (as defined in the Plan), Optionee may, to the extent otherwise so
entitled at the date of such termination (the "Termination Date"), exercise this
Option during the Termination Period set forth in the Notice.
(b) OTHER TERMINATIONS. In connection with any termination other than
a termination covered by Section 5(a), Optionee may exercise the Option only as
described below:
(i) TERMINATION UPON DISABILITY OF OPTIONEE. In the event of
termination of Optionee's Continuous Service Status as a result of Optionee's
disability, Optionee may, but only within twelve months from the Termination
Date, exercise this Option to the extent Optionee was entitled to exercise it as
of such Termination Date.
(ii) DEATH OF OPTIONEE. In the event of the death of Optionee (a)
during the term of this Option and while an Employee or Consultant of the
Company and having been in Continuous Service Status since the date of grant of
the Option, or (b) within thirty (30) days after Optionee's Termination Date,
the Option may be exercised at any time within twelve months following the date
of death by Optionee's estate or by a person who acquired the right to exercise
the Option by bequest or inheritance, but only to the extent Optionee was
entitled to exercise the Option as of the Termination Date.
(iii) TERMINATION FOR CAUSE. In the event Optionee's Continuous
Service Status is terminated for Cause, the Option shall terminate immediately
upon such termination for Cause as set forth in Section 10(b)(iv) of the Plan.
In the event Optionee's employment or consulting relationship with the Company
is suspended pending investigation of whether such relationship shall be
terminated for Cause, all Optionee's rights under the Option, including the
right to exercise the Option, shall be suspended during the investigation
period, also as set forth in Section 10(b)(iv) of the Plan.
6. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any
manner otherwise than by will or by the laws of descent or distribution and may
be exercised during the lifetime of Optionee only by him or her. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
7. TAX CONSEQUENCES. Below is a brief summary as of the date of this Option
of certain of the federal tax consequences of exercise of this Option and
disposition of the Shares under the laws in effect as of the Date of Grant. THIS
SUMMARY IS INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING
OF THE SHARES.
(a) INCENTIVE STOCK OPTION.
(i) TAX TREATMENT UPON EXERCISE AND SALE OF SHARES. If this
Option qualifies as an Incentive Stock Option, there will be no regular federal
income tax liability upon the exercise of the Option, although the excess, if
any, of the fair market value of the Shares on the date of exercise over the
Exercise Price will be treated as an adjustment to the alternative minimum tax
for federal tax purposes and may subject Optionee to the alternative minimum tax
in the year of exercise. If Shares issued upon exercise of an Incentive Stock
Option are held for at least one year after exercise and are disposed of at
least two years after the Option grant date, any gain realized on disposition of
the Shares will also be treated as long-term capital gain for federal income tax
purposes. If Shares issued
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upon exercise of an Incentive Stock Option are disposed of within such one-year
period or within two years after the Option grant date, any gain realized on
such disposition will be treated as compensation income (taxable at ordinary
income rates) to the extent of the difference between the Exercise Price and the
lesser of (i) the fair market value of the Shares on the date of exercise, or
(ii) the sale price of the Shares.
(ii) NOTICE OF DISQUALIFYING DISPOSITIONS. With respect to any
Shares issued upon exercise of an Incentive Stock Option, if Optionee sells or
otherwise disposes of such Shares on or before the later of (i) the date two
years after the Option grant date, or (ii) the date one year after the date of
exercise, Optionee shall immediately notify the Company in writing of such
disposition. Optionee acknowledges and agrees that he or she may be subject to
income tax withholding by the Company on the compensation income recognized by
Optionee from the early disposition by payment in cash or out of the current
earnings paid to Optionee.
(b) NONSTATUTORY STOCK OPTION. If this Option does not qualify as an
Incentive Stock Option, there may be a regular federal (and state) income tax
liability upon the exercise of the Option. Optionee will be treated as having
received compensation income (taxable at ordinary income tax rates) equal to the
excess, if any, of the fair market value of the Shares on the date of exercise
over the Exercise Price. If Optionee is an Employee, the Company will be
required to withhold from Optionee's compensation or collect from Optionee and
pay to the applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise. If Shares issued upon exercise of a
Nonstatutory Stock Option are held for at least one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes.
8. LOCK-UP AGREEMENT. In connection with the initial public offering of the
Company's securities and upon request of the Company or the underwriters
managing any underwritten offering of the Company's securities, Optionee hereby
agrees not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any securities of the Company however and
whenever acquired (other than those included in the registration) without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time (not to exceed 180 days) from the effective date of such
registration as may be requested by the Company or such managing underwriters
and to execute an agreement reflecting the foregoing as may be requested by the
underwriters at the time of the public offering.
9. EFFECT OF AGREEMENT. Optionee acknowledges receipt of a copy of the Plan
and represents that he or she is familiar with the terms and provisions thereof
(and has had an opportunity to consult counsel regarding the Option terms), and
hereby accepts this Option and agrees to be bound by its contractual terms as
set forth herein and in the Plan. Optionee hereby agrees to accept as binding,
conclusive and final all decisions and interpretations of the Plan Administrator
regarding any questions relating to the Option. In the event of a conflict
between the terms and provisions of the Plan and the terms and provisions of the
Notice and this Agreement, the Plan terms and provisions shall prevail. The
Option, including the Plan, constitutes the entire agreement between Optionee
and the Company on the subject matter hereof and supersedes all proposals,
written or oral, and all other communications between the parties relating to
such subject matter.
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