1
EXHIBIT 10.22
CLICKOVER, INC.
STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
(A) Name of Optionee:__________________________________
(B) Grant Date:________________________________________
(C) Number of Shares:__________________________________
(D) Exercise Price:____________________________________
(E) Vesting Base Date:_________________________________
(F) Effective Date:____________________________________
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement"), is made
and entered into as of the date set forth in item F above (the "Effective Date")
between ClickOver, Inc., a California corporation (the "Company") and the person
named in Item A above ("Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. Grant of Option; Vesting.
1.1 Grant. The Company hereby grants to Optionee pursuant
to the Company's Stock Option Plan (the "Plan"), a copy of which is attached to
this Agreement as Exhibit 1, an incentive stock option (the "ISO") to purchase
all or any part of an aggregate of the number of shares (the "ISO Shares") of
the Company's Common Stock (as defined in the Plan) listed in item C above on
the terms and conditions set forth herein and in the Plan, the terms and
conditions of the Plan being hereby incorporated into this Agreement by
reference.
1.2 Vesting Base Date. The parties hereby establish the
date set forth in Item E above as the Vesting Base Date (as defined in Section
5.1 below).
2. Exercise Price. The exercise price for purchase of each share
of Common Stock covered by this ISO shall be the price set forth in Item D
above.
3. Term. Unless otherwise specified on Exhibit 3 attached hereto,
if any (the absence of such exhibit indicating that no such exhibit was
intended), this ISO shall expire as provided in Section 6.1.12 of the Plan.
4. Adjustment of ISOs. The Company shall adjust the number and
kind of shares and the exercise price thereof in certain circumstances in
accordance with the provisions of Section 6.1.1 of the Plan.
5. Exercise of Options.
5.1 Vesting; Time of Exercise. This ISO shall be
exercisable according to the schedule set forth on Exhibit 5.1 attached hereto.
Such schedule shall commence as of the date set forth in Item (E) above (the
"Vesting Base Date").
2
5.2 Exercise After Termination of Status as an Employee,
Director or Consultant. In the event of termination of Optionee's continuous
status as an employee, director or consultant, this ISO may be exercised only in
accordance with the provisions of Section 6.1.7 of the Plan.
5.3 Manner of Exercise. Optionee may exercise this ISO, or
any portion of this ISO, by giving written notice to the Company at its
principal executive office, to the attention of the officer of the Company
designated by the Plan Administrator, accompanied by a copy of the Stock Option
Plan Stock Purchase Agreement in substantially the form attached hereto as
Exhibit 5.3 executed by Optionee (or at the option of the Company such other
form of stock purchase agreement as shall then be acceptable to the Company),
payment of the exercise price and payment of any applicable withholding or
employment taxes. The date the Company receives written notice of an exercise
hereunder accompanied by payment will be considered as the date this ISO was
exercised.
5.4 Payment. Except as provided in Exhibit 5.4 attached
hereto, if any (the absence of such exhibit indicating that no exhibit was
intended), payment may be made for ISO Shares purchased at the time written
notice of exercise of the ISO is given to the Company, by delivery of cash,
check, previously owned shares of Common Stock (provided that delivery of
previously owned shares may not be made more than once in any six-month period),
or a full recourse promissory note equal to up to 90% of the exercise price and
payable over no more than five years. The proceeds of any payment shall
constitute general funds of the Company.
5.5 Delivery of Certificate. Promptly after receipt of
written notice of exercise of the ISO, the Company shall, without stock issue or
transfer taxes to the Optionee or other person entitled to exercise, deliver to
the Optionee or other person a certificate or certificates for the requisite
number of ISO Shares. An Optionee or transferee of an Optionee shall not have
any privileges as a shareholder with respect to any ISO Shares covered by the
option until the date of issuance of a stock certificate.
6. Nonassignability of ISO. This ISO is not assignable or
transferable by Optionee except by will or by the laws of descent and
distribution. During the life of Optionee, the ISO is exercisable only by the
Optionee. Any attempt to assign, pledge, transfer, hypothecate or otherwise
dispose of this ISO in a manner not herein permitted, and any levy of execution,
attachment, or similar process on this ISO, shall be null and void.
7. Company's Repurchase Rights. The ISO Shares arising from
exercise of this ISO shall be subject to a right of repurchase in favor of the
Company,(the "Right of Repurchase") to the extent set forth on Exhibit 7
attached hereto (the absence of such exhibit indicating that no such exhibit was
intended and that the ISO shall be subject to the limitations set forth on
Exhibit 5-1). If the Optionee's employment with the Company terminates before
the Right of Repurchase lapses in accordance with Exhibit 7, the Company may
purchase ISO Shares subject to the Right of Repurchase (either by payment of
cash or by cancellation of purchase money indebtedness) for an amount equal to
the price the Optionee paid for such ISO Shares (exclusive of any taxes paid
upon acquisition of the stock) by giving notice at any time within the later of
(a) 30 days after the acquisition of the ISO Shares upon option exercise, or (b)
90 days after such termination of employment that the Company is exercising its
right of
-2-
3
repurchase. The Company shall include with such notice payment in full in cash
or by evidence of cancellation of purchase money indebtedness. The Optionee may
not dispose of or transfer ISO Shares while such shares are subject to the Right
of Repurchase and any such attempted transfer shall be null and void.
8. Company's Right of First Refusal.
8.1 Right of First Refusal. In the event that the Optionee
proposes to sell, pledge, or otherwise transfer any ISO Shares or any interest
in such shares to any person or entity, the Company shall have a right of first
refusal (the "Right of First Refusal") with respect to such ISO Shares. If
Optionee desires to transfer ISO Shares, Optionee shall give a written notice
(the "Transfer Notice") to the Company describing fully the proposed transfer,
including the number of ISO 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 Optionee and by the proposed transferee
and must constitute a binding commitment of both such parties for the transfer
of such ISO Shares. The Company may elect to purchase all, but not less than
all, of the ISO Shares subject to the Transfer Notice by delivery of a notice of
exercise of the Company's Right of First Refusal within 30 days after the date
the Transfer Notice is delivered to the Company. The purchase price paid by the
Company shall be the price per share equal to the proposed per share transfer
price, and shall be paid to the Optionee within 60 days after the date the
Transfer Notice is received by the Company, unless a longer period for payment
was offered by the proposed transferee, in which case the Company shall pay the
purchase price within such longer period. The Company's rights under this
Section 8.1 shall be freely assignable, in whole or in part. Notwithstanding the
foregoing, the Right of First Refusal does not apply to a transfer of shares by
gift or devise to the Optionee's immediate family (i.e., parents, spouse or
children or to a trust for the benefit of the Optionee or any of the Optionee's
immediate family members), but does apply to any subsequent transfer of such
shares by such immediate family members.
8.2 Transfer of ISO Shares. If the Company fails to
exercise the Right of First Refusal within 30 days after the date the Transfer
Notice is delivered to the Company, the Optionee may, not later than 75 days
following delivery to the Company of the Transfer Notice, conclude a transfer of
the ISO 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 the Optionee, shall again be subject to the Right of First
Refusal and shall require compliance by the Optionee with the procedure
described in Section 8.1 of this Agreement. If the Company exercises the Right
of First Refusal, the parties shall consummate the sale of ISO Shares on the
terms, other than price, as applicable under Section 8.1, set forth in the
Transfer Notice; provided, however, in the event the Transfer Notice provides
for payment for the ISO Shares other than in cash, the Company shall have the
option of paying for the ISO Shares by paying in cash the present value of the
consideration described in the Transfer Notice; and further provided that if the
value of noncash consideration is to be paid and the Optionee disagrees with the
value determined by the Company, the Optionee may request an independent
appraisal by an appraiser acceptable to the Optionee and the Company, the costs
of such appraisal to be borne equally by the Optionee and the Company.
-3-
4
8.3 Binding Effect. The Right of First Refusal shall inure
to the benefit of the successors and assigns of the Company and shall be binding
upon any transferee of ISO Shares other than a transferee acquiring ISO Shares
in a transaction where the Company failed to exercise the Right of First Refusal
(a "Free Transferee") or a transferee of a Free Transferee.
8.4 Termination of Company's Right of First Refusal.
Notwithstanding anything in this Section 8, the Company shall have no Right of
First Refusal, and Optionee shall have no obligation to comply with the
procedures in Sections 8.1 through 8.3 after the earlier of (i) the closing of
the Company's initial public offering to the public generally, or (ii) the date
ten (10) years after the Effective Date.
9. Market Standoff. Optionee hereby agrees that if so requested
by the Company or any representative of the underwriters in connection with any
registration of the offering of the securities of the Company under the
Securities Act of 1933, as amended (the "Securities Act"), Optionee shall not
sell or otherwise transfer the ISO Shares for a period of 180 days following the
effective date of a Registration Statement filed under the Securities Act;
provided that such restrictions shall only apply to the first two registration
statements of the Company to become effective under the Securities Act which
include securities to be sold on behalf of the Company in an underwritten public
offering under the Securities Act. The Company may impose stop-transfer
instructions with respect to the ISO Shares subject to the foregoing
restrictions until the end of each such 180-day period.
10. Restriction on Issuance of Shares.
10.1 Legality of Issuance. The Company shall not be
obligated to sell or issue any ISO Shares pursuant to this Agreement if such
sale or issuance, in the opinion of the Company and the Company's counsel, might
constitute a violation by the Company of any provision of law, including without
limitation the provisions of the Securities Act.
10.2 Registration or Qualification of Securities. The
Company may, but shall not be required to, register or qualify the sale of this
ISO or any ISO Shares under the Securities Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the grant or exercise of this option or the issuance or sale of any ISO Shares
pursuant thereto to comply with any law.
11. Restriction on Transfer. Regardless whether the sale of the
ISO Shares has been registered under the Securities Act or has been registered
or qualified under the securities laws of any state, the Company may impose
restrictions upon the sale, pledge, or other transfer of ISO Shares (including
the placement of appropriate legends on stock certificates) if, in the judgment
of the Company and the Company's counsel, such restrictions are necessary or
desirable in order to achieve compliance with the provisions of the Securities
Act, the securities laws of any state, or any other law, or if the Company does
not desire to have a trading market develop for its securities.
-4-
5
12. Stock Certificate. Stock certificates evidencing ISO Shares
may bear such restrictive legends as the Company and the Company's counsel deem
necessary or advisable under applicable law or pursuant to this Agreement.
13. Disqualifying Dispositions. If stock acquired by exercise of
this ISO is disposed of within two years after the Effective Date or within one
year after date of such exercise (as determined under Section 5.3 of this
Agreement), the Optionee immediately prior to the disposition shall promptly
notify the Company in writing of the date and terms of the disposition and shall
provide such other information regarding the disposition as the Company may
reasonably require.
14. Representations, Warranties, Covenants, and Acknowledgments
of Optionee Upon Exercise of ISO. Optionee hereby agrees that in the event that
the Company and the Company's counsel deem it necessary or advisable in the
exercise of their discretion, the issuance of ISO Shares may be conditioned upon
certain representations, warranties, and acknowledgments by the person
exercising the ISO (the "Purchaser"), including, without limitation, those set
forth in Sections 14.1 through 14.8 inclusive:
14.1 Investment. Purchaser is acquiring the ISO Shares for
Purchaser's own account, and not for the account of any other person. Purchaser
is acquiring the ISO Shares for investment and not with a view to distribution
or resale thereof except in compliance with applicable laws regulating
securities.
14.2 Business Experience. Purchaser is capable of
evaluating the merits and risks of Purchaser's investment in the Company
evidenced by purchase of the ISO Shares.
14.3 Relation to Company. Purchaser is presently an
officer, director, or other employee of, or consultant to the Company, and in
such capacity has become personally familiar with the business, affairs,
financial condition, and results of operations of the Company.
14.4 Access to Information. Purchaser has had the
opportunity to ask questions of, and to receive answers from, appropriate
executive officers of the Company with respect to the terms and conditions of
the transaction contemplated hereby and with respect to the business, affairs,
financial condition, and results of operations of the Company. Purchaser has had
access to such financial and other information as is necessary in order for
Purchaser to make a fully-informed decision as to investment in the Company by
way of purchase of the ISO Shares, and has had the opportunity to obtain any
additional information necessary to verify any of such information to which
Purchaser has had access.
14.5 Speculative Investment. Purchaser's investment in the
Company represented by the ISO Shares is highly speculative in nature and is
subject to a high degree of risk of loss in whole or in part. The amount of such
investment is within Purchaser's risk capital means and is not so great in
relation to Purchaser's total financial resources as would jeopardize the
personal financial needs of Purchaser or Purchaser's family in the event such
investment were lost in whole or in part.
14.6 Registration. Purchaser must bear the economic risk
of investment for an indefinite period of time because the sale to Purchaser of
the ISO Shares has not been
-5-
6
registered under the Securities Act and the ISO Shares cannot be transferred by
Purchaser unless such transfer is registered under the Securities Act or an
exemption from such registration is available. The Company has made no
agreements, covenants, or undertakings whatsoever to register the transfer of
any of the ISO Shares under the Securities Act. The Company has made no
representations, warranties, or covenants whatsoever as to whether any exemption
from the Securities Act, including without limitation any exemption for limited
sales in routine brokers' transactions pursuant to Rule 144, will be available;
if the exemption under Rule 144 is available at all, it may not be available
until at least two years after payment of cash for the ISO Shares and not then
unless: (i) a public trading market then exists in the Company's common stock;
(ii) adequate information as to the Company's financial and other affairs and
operations is then available to the public; and (iii) all other terms and
conditions of Rule 144 have been satisfied. Purchaser understands that the
resale provisions of Rule 701 will not apply until 90 days after the Company
becomes subject to the reporting obligations of the Securities Exchange Act of
1934 (typically 90 days after the effective date of an initial public offering).
14.7 Public Trading. None of the Company's securities is
presently publicly traded, and the Company has made no representation, covenant,
or agreement as to whether there will be a public market for any of its
securities.
14.8 Tax Advice. The Company has made no warranties or
representations to Purchaser with respect to the income tax consequences of the
transactions contemplated by the agreement pursuant to which the ISO Shares will
be purchased and Purchaser is in no manner relying on the Company or its
representatives for an assessment of such tax consequences.
15. Assignment; Binding Effect. Subject to the limitations set
forth in this Agreement, this Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, legal representatives, and
successors of the parties hereto; provided, however, that Optionee may not
assign any of Optionee's rights under this Agreement.
16. Damages. Optionee shall be liable to the Company for all
costs and damages, including incidental and consequential damages, resulting
from a disposition of ISO Shares which is not in conformity with the provisions
of this Agreement.
17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California excluding
those laws that direct the application of the laws of another jurisdiction.
18. Notices. All notices and other communications under this
Agreement shall be in writing. Unless and until the Optionee is notified in
writing to the contrary, all notices, communications, and documents directed to
the Company and related to the Agreement, if not delivered by hand, shall be
mailed, addressed as follows:
ClickOver, Inc.
524 Xxxx _____
Xxxx Xxxx, XX 00000
Attention: President
-6-
7
Unless and until the company is notified in writing to the contrary, all
notices, communications, and documents intended for the Optionee and related to
this Agreement, if not delivered by hand, shall be mailed to Optionee's last
known address as shown on the Company's books. Notices and communications shall
be mailed by first class mail, postage prepaid; documents shall be mailed by
registered mail, return receipt requested, postage prepaid. All mailings and
deliveries related to this Agreement shall be deemed received when actually
received, if by hand delivery, and two business days after mailing, if by mail.
IN WITNESS WHEREOF, the parties have executed this Incentive
Stock Option Agreement as of the Effective Date.
CLICKOVER, INC.
By:______________________________________
Title:___________________________________
The Optionee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.
_________________________________________
Optionee
Dated:___________________________________
Optionee's spouse indicates by the execution of this Incentive Stock Option
Agreement his or her consent to be bound by the terms thereof as to his or her
interests, whether as community property or otherwise, if any, in the option
granted hereunder, and in any ISO Shares purchased pursuant to this Agreement.
_________________________________________
Optionee's Spouse
-7-
8
EXHIBITS
Exhibit 1 Stock Option Plan
Exhibit 3
(if applicable) Expiration of Incentive Stock Option
Exhibit 5.1 Time of Exercise
Exhibit 5.3 Stock Option Plan Stock Purchase Agreement
Exhibit 5.4
(if applicable) Payment
Exhibit 7 Right of Repurchase
(if applicable)
-8-
9
EXHIBIT 5.1 OF THE INCENTIVE STOCK
OPTION AGREEMENT
The ISO shall be exercisable with respect to twenty-five percent
(25%) of the total number of ISO Shares one year after the Vesting Base Date
and, thereafter, with respect to an additional 1/48 of such shares at the end of
each month after the first anniversary of the Vesting Base Date, so that all of
the ISO Shares may be purchased on and after the fourth anniversary of the
Vesting Base Date.
Initialled by: CLICKOVER, INC.
By:______________________________________
Title:___________________________________
Optionee:________________________________
-9-
10
EXHIBIT 5.1 OF THE INCENTIVE STOCK
OPTION AGREEMENT
The ISO shall be exercisable with respect to the total number of
ISO Shares on the Effective Date, subject to the Right of Repurchase set forth
in Exhibit 7.
Executed by: CLICKOVER, INC.
By:______________________________________
Title:___________________________________
Optionee:________________________________
-10-
11
EXHIBIT 7 OF THE INCENTIVE STOCK
OPTION AGREEMENT
[All] of the ISO Shares are subject to the Right of Repurchase.
The Right of Repurchase shall expire with respect to ______ of the [total number
of] ISO Shares one year after the Vesting Base Date and, thereafter, with
respect to an additional ________ of the ISO Shares at the end of each month
after the first anniversary of the Vesting Base Date, so that all of the ISO
Shares may be purchased on and after the fourth anniversary of the Vesting Base
Date.
Executed by: CLICKOVER, INC.
By:______________________________________
Title:___________________________________
Optionee:________________________________
-11-
