SOUTHWALL TECHNOLOGIES INC. Non-Qualified Stock Option Agreement for Employees
Exhibit
99.6
SOUTHWALL TECHNOLOGIES INC.
Southwall Technologies Inc., a Delaware corporation (the “Company”),
hereby grants as of <date> to <name> (the “Employee”), an option to
purchase a maximum of <number> shares (the “Option Shares”) of its Common
Stock, $.001 par value (“Common Stock”), at the price of $___ per share, on the
following terms and conditions:
1. Grant Under the
1998 Stock Plan for Employees and Consultants.
This option is granted pursuant to and is governed by the Company’s 1998 Stock
Plan for Employees and Consultants (the “Plan”) and, unless the context
otherwise requires, terms used herein shall have the same meaning as in the
Plan. Determinations made in connection with this option pursuant to the Plan
shall be governed by the Plan as it exists on this date.
2. Grant as
Non-Qualified Stock Option; Other Options. This
option shall be treated for federal income tax purposes as a Non-Qualified
Option (rather than an incentive stock option). This option is in addition to
any other options heretofore or hereafter granted to the Employee by the Company
or any Subsidiary of the Company, but a duplicate original of this instrument
shall not effect the grant of another option.
3. Vesting of
Option if Employment Continues. For the purpose of
determining the vesting of the option granted hereunder, the vesting date will
be <date> (the “Vesting Date”) and the option will vest over ____ years.
If the Employee has continued to be employed by the Company or any Subsidiary of
the Company on the following dates, the Employee may exercise this option for
the number of shares of Common Stock set opposite the applicable date:
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Less
than ____ from the Vesting Date |
- |
No
shares |
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____
from the Vesting Date |
- |
|
|
Each
subsequent ___ following ____ from the Vesting Date |
- |
An
additional ___% of the total number of shares
granted |
Notwithstanding the foregoing, in accordance with and subject to the
provisions of the Plan, the Board of Directors (the "Board") or a committee
selected by the Board (the "Committee") may, in its discretion, accelerate the
date that any installment of this option becomes exercisable. The foregoing
rights are cumulative and, while the Employee continues to be employed by the
Company or any Subsidiary of the Company, may be exercised on or before the date
which is 10 years from the date this option is granted. All of the foregoing
rights are subject to Sections 4 and 5, as appropriate, if the Employee ceases
to be employed by the Company and all Subsidiaries of the Company.
4. Termination of
Business Relationship.
(a)
Termination Other Than for Cause.
If the Employee ceases to be employed by the Company or any Subsidiary
of the Company, other than by reason of death or disability as defined in
Section 5 or termination for Misconduct, no further installments of this option
shall become exercisable, and this option shall terminate (and may no longer be
exercised) after the passage of eighteen months from the Employee’s last day of
employment, but in no event later than the scheduled expiration date. In such a
case, the Employee’s only rights hereunder shall be those which are properly
exercised before the termination of this option.
(b)
Termination for Cause. If the
employment of the Employee is terminated for Misconduct, this option shall
terminate upon the Employee’s receipt of written notice of such termination and
shall thereafter not be exercisable to any extent whatsoever.
5. Death;
Disability.
(a)
Death. If the Employee dies
while in the employ of the Company or any Subsidiary of the Company, this option
may be exercised, to the extent otherwise exercisable on the date of his or her
death, by the Employee’s estate, personal representative or beneficiary to whom
this option has been assigned pursuant to Section 10, at any time within
eighteen months after the date of death, but not later than the scheduled
expiration date.
(b)
Disability. If the Employee
ceases to be employed by the Company and all Subsidiaries of the Company by
reason of his or her disability, this option may be exercised, to the extent
otherwise exercisable on the date of the termination of his or her employment,
at any time within eighteen months after such termination, but not later than
the scheduled expiration date.
(c)
Effect of Termination. At the
expiration of the eighteen month period provided in paragraph (a) or (b) of this
Section 5 or the scheduled expiration date, whichever is the earlier, this
option shall terminate (and shall no longer be exercisable) and the only rights
hereunder shall be those as to which the option was properly exercised before
such termination.
6. Partial
Exercise. This option may be exercised in part at
any time and from time to time within the above limits, except that this option
may not be exercised for a fraction of a share unless such exercise is with
respect to the final installment of stock subject to this option and cash in
lieu of a fractional share must be paid to permit the Employee to exercise
completely such final installment. Any fractional share with respect to which an
installment of this option cannot be exercised because of the limitation
contained in the preceding sentence shall remain subject to this option and
shall be available for later purchase by the Employee in accordance with the
terms hereof.
7. Payment of
Price.
(a)
Manner of Payment. The option price shall
be paid in the following manner:
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(i) |
by
either cash, check or fund transfer payable to the Company;
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|
(ii) |
subject
to paragraph 7(b) below, by delivery of shares of the Company’s Common
Stock having a fair market value (as determined by the Board or the
Committee) equal as of the date of exercise to the option price;
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(iii) |
by
delivery of an assignment satisfactory in form and substance to the
Company of a sufficient amount of the proceeds from the sale of the Option
Shares and an instruction to the broker or selling agent to pay that
amount to the Company; or |
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(iv) |
by any
combination of the foregoing. |
(b)
Limitations on Payment by Delivery of Common
Stock. If the Employee delivers Common Stock
held by the Employee (“Old Stock”) to the Company in full or partial payment of
the option price, and the Old Stock so delivered is subject to restrictions or
limitations imposed by agreement between the Employee and the Company, an
equivalent number of Option Shares shall be subject to all restrictions and
limitations applicable to the Old Stock to the extent that the Employee paid for
the Option Shares by delivery of Old Stock, in addition to any restrictions or
limitations imposed by this Agreement. Notwithstanding the foregoing, the
Employee may not pay any part of the exercise price hereof by transferring
Common Stock to the Company unless such Common Stock has been owned by the
Employee free of any substantial risk of forfeiture for at least six months.
8. Method of
Exercising Option. Subject to the terms and
conditions of this Agreement, this option may be exercised (i) by written notice
to the Company at its principal executive office, or (ii) by written notice to
such transfer agent as the Company shall designate. Such notice shall state the
election to exercise this option and the number of Option Shares for which it is
being exercised and shall be signed (either in writing or by electronic
transmission) by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Employee
and if the Employee shall so request in the notice exercising this option, shall
be registered in the name of the Employee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 5 hereof, by any person or persons other than the Employee, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise this option.
9. Option Not
Transferable. This option is not transferable or
assignable except by will or by the laws of descent and distribution. During the
Employee’s lifetime only the Employee can exercise this option.
10.
No Obligation to Exercise Option.
The grant and acceptance of this option imposes no obligation on the
Employee to exercise it.
11.
No Obligation to Continue Employment.
Neither the Plan, this Agreement, nor the grant of this option imposes
any obligation on the Company or any Subsidiary of the Company to continue the
employment of the Employee.
12.
No Rights as Stockholder until
Exercise. The Employee shall have no rights as a
stockholder with respect to the Option Shares until such time as the Employee
has exercised this option in accordance with Section 8. Except as is expressly
provided in the Plan with respect to certain changes in the capitalization of
the Company, no adjustment shall be made for dividends or similar rights for
which the record date is prior to such date of exercise.
13.
Capital Changes and Business
Successions. The Plan contains provisions covering
the treatment of options in a number of contingencies such as stock splits and
mergers. Provisions in the Plan for adjustment with respect to stock subject to
options and the related provisions with respect to successors to the business of
the Company are hereby made applicable hereunder and are incorporated herein by
reference.
14.
Withholding Taxes. If the
Company or any Subsidiary of the Company in its discretion determines that it is
obligated to withhold any tax in connection with the exercise of this option, or
in connection with the transfer of, or the lapse of restrictions on, any Common
Stock or other property acquired pursuant to this option, the Employee hereby
agrees that the Company or any Subsidiary of the Company may withhold from the
Employee’s wages or other remuneration the appropriate amount of tax. At the
discretion of the Company or Subsidiary of the Company, the amount required to
be withheld may be withheld in cash from such wages or other remuneration or in
kind from the Common Stock or other property otherwise deliverable to the
Employee on exercise of this option. The Employee further agrees that, if the
Company or any Subsidiary of the Company does not withhold an amount from the
Employee’s wages or other remuneration sufficient to satisfy the withholding
obligation of the Company or Subsidiary of the Company, the Employee will make
reimbursement on demand, in cash, for the amount underwithheld.
15.
Arbitration. Any dispute,
controversy, or claim arising out of, in connection with, or relating to the
performance of this Agreement or its termination shall be settled by arbitration
in the State of California, pursuant to the rules then
obtaining of the American Arbitration Association. Any award shall be final,
binding and conclusive upon the parties and a judgment rendered thereon may be
entered in any court having jurisdiction thereof.
16.
Provision of Documentation to
Employee. By signing this Agreement (either in
writing or by electronic transmission) the Employee acknowledges receipt of a
copy of this Agreement and a copy of the Plan.
17.
Miscellaneous.
(a)
Notices. Except as explicitly
provided for herein or in the Plan, all notices hereunder shall be in writing
and shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth below. The addresses
for such notices may be changed from time to time by written notice given in the
manner provided for herein.
(b)
Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the parties
relative to the subject matter hereof, and supersedes all proposals, written or
oral, and all other communications between the parties relating to the subject
matter of this Agreement. This Agreement may be modified, amended or rescinded
only by a written agreement executed by both parties (either in writing or by
electronic transmission).
(c)
Severability. The invalidity,
illegality or unenforceability of any provision of this Agreement shall in no
way affect the validity, legality or enforceability of any other provision.
(d)
Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, subject to the limitations set
forth in Section 9 hereof.
(e)
Governing Law. This Agreement
shall be governed by and interpreted in accordance with the laws of the State of
California, without giving effect to the principles of the
conflicts of laws thereof.
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IN WITNESS WHEREOF, the Company and the Employee have caused this
instrument to be executed as of the date first above written.
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SOUTHWALL
TECHNOLOGIES INC. | |||||
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By: |
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Signature
of Employee |
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Print
Name of Employee |
Name of
Officer | |||||
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