EXHIBIT 4.5
OPENTV CORP. 2005 INCENTIVE PLAN
FORM OF INDEPENDENT DIRECTOR NON-QUALIFIED STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of ____________, 20__ (the "Grant Date"),
between OpenTV Corp. (the "Company") and _________________ ("Optionee")
Recitals
A. Optionee is an Independent Director of the Company.
B. The Company has adopted the OpenTV Corp. 2005 Incentive Plan
effective as of October 13, 2005 (the "Plan"), a copy of which is
attached hereto as Exhibit A. This Agreement is entered into pursuant to Section
11.5 of the Plan. Any capitalized terms used herein and not otherwise defined
are used as defined in the Plan.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Optionee hereby agree to the following:
1. Option Grant. The Company hereby grants to Optionee the option
("Option") to purchase up to _______ shares (the "Shares") of the Company's
Class A Ordinary Shares, no par value, at an exercise price of $______ per share
(the "Exercise Price"), which is not less than the Fair Market Value of the
Shares as of the Grant Date, on the terms, and subject to the conditions, set
forth in this Agreement and the Plan. The Option is not intended to be an
incentive stock option as defined in Section 422 of the Code and is hereby
designated a "non-qualified stock option" for all purposes of the Code.
2. Exercise
(a) Vesting Schedule. The Option shall be exercisable from time to
time during its term in accordance with the following vesting schedule, except
as otherwise expressly provided in this Agreement and the Plan: Twenty-five
percent (25%) of the Option shall vest and become exercisable on the first
anniversary of the Vesting Commencement Date. At the end of each month
thereafter, the Option shall vest and become exercisable as to an additional
l/48th of the Shares until the Option is vested with respect to one hundred
percent (100%) of the Shares. If application of the vesting percentage causes a
fractional Share, such fractional Share shall be rounded down to a whole Share.
For purposes of this Section 2(a), the Vesting Commencement Date is ____.
(b) Method of Exercise. This Option shall be exercisable by written
notice (in the form attached as Exhibit B or other form acceptable to the
Company) which shall state the election to exercise the Option, the number
Shares in respect of which the Option is being exercised, and such
representations, warranties and agreements as the Company may reasonably request
to comply with applicable U.S. federal or state securities laws and/or the
requirements of any stock exchange (or quotation system) upon which the Company
Class A Ordinary Shares are listed or included (a "Stock Exchange"). The written
notice of exercise shall be accompanied by
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payment of the aggregate Exercise Price for the number of Shares as to which the
Option is being exercised, pursuant to one of the methods described in Section 4
below. The Option shall be deemed to be exercised upon receipt by the Company of
such written notice accompanied by the Exercise Price so paid.
(c) Voluntary Termination of Optionee's Directorship. If Optionee
voluntarily ceases his service as a director of the Company (other than in
connection with the occurrence of any Approved Transaction, Board Change or
Control Purchase (any such occurrence, a "Change in Control") or refuses to
stand for reelection (any of the foregoing events hereinafter referred to as a
"Voluntary Termination"), the Option granted to Optionee may be exercised only
to the extent such Option was exercisable at the time he or she ceased to serve
in such capacity and for so long as it is still in force and unexpired under the
terms of Paragraph (h) of this Section.
(d) Involuntary Termination of Optionee's Directorship. If Optionee
ceases to serve as a director of the Company for any reason (including, but not
limited to, by reason of death or Disability) other than Voluntary Termination
or removal for Cause as defined below, at a time when the Option granted
hereunder is still in force and unexpired under the terms of Paragraph (h) of
this Section, the vesting and exercisability of the Option shall be
automatically accelerated to the date of termination. Such acceleration shall be
effective as of immediately prior to the effective termination of director
status and the Option so accelerated shall be exercisable in full for so long as
it is still in force and unexpired under the terms of Paragraph (h) of this
Section. For purposes of this Agreement, the term "Cause" shall mean, in
addition to any meaning ascribed thereto in the Company's Articles of
Association (if any) or the Plan, any of the following: (i) engagement by the
Optionee in illegal or other wrongful conduct substantially detrimental to the
business or reputation of the Company or any of its Affiliates, (ii) the
Optionee being charged with or convicted of a felony, or (iii) engagement by the
Optionee in any fraud, embezzlement, misappropriation, material act of
dishonesty or similar conduct against the Company or any of its Affiliates.
(e) Change in Control. Upon the occurrence of a Change in Control,
the vesting and exercisability of the Options granted hereunder and still in
force and unexpired under the terms of Paragraph (h) of this Section 2 shall be
automatically accelerated effective as of such Change in Control and shall be
exercisable in full for so long as it is still in force and unexpired under the
terms of Paragraph (h) of this Section.
(f) Compliance with Law. No Shares will be issued pursuant to the
exercise of the Option unless such issuance and such exercise shall be in
conformity with all relevant provisions of law and the requirements of any
applicable Stock Exchange. Assuming such compliance, for income tax purposes,
the Shares shall be deemed transferred to Optionee at the close of business (or
such other time as the Board shall determine) on the date on which the Option is
exercised with respect to such Shares.
(g) Withholding. The Company's obligation to deliver Shares upon
exercise of the Option shall be subject to applicable federal, state and local
tax withholding requirements. Federal, state and local withholding tax due upon
any exercise of the Option may, in the discretion of the Board, be paid in
Shares already owned by Optionee or through the withholding
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of Shares otherwise issuable to Optionee, upon such terms and conditions as the
Board shall determine. If Optionee shall fail to pay, or make arrangements
satisfactory to the Board for the payment to the Company of all such federal,
state and local taxes required to be withheld by the Company, then the Company
shall, to the extent permitted by law, have the right to deduct from any payment
of any kind otherwise due to Optionee an amount equal in value to any federal,
state or local taxes of any kind required to be withheld by the Company with
respect to any exercise of the Option.
(h) Option Period. Each Option granted pursuant to this Agreement
shall terminate and be of no force and effect with respect to any Class A
Ordinary Shares not purchased by the Optionee on the earliest to occur of the
following: (i) 11:59 p.m., New York City time, on the day that immediately
precedes the tenth anniversary of the date upon which the Option is granted;
(ii) 11:59 p.m., New York City time, on the first business day following the
expiration of the one-year period beginning on the date the Optionee ceases to
be a director for any reason (including, but not limited to, by reason of death
or Disability) other than Voluntary Termination or removal for Cause; (iii)
11:59 p.m., New York City time, on the first business day following the
expiration of the ninety (90) day period beginning on the effective date of the
Optionee's Voluntary Termination of service as a director; or (iv) immediately
upon any removal of Optionee as a director for Cause.
3. Optionee's Representations. If, at the time the Option is
exercised, the issuance of Shares on exercise of the Option has not been
registered pursuant to an effective registration statement under the Securities
Act of 1933, as amended, then concurrently with the exercise of all or any
portion of the Option, Optionee shall deliver to the Company a signed Investment
Representation Letter in the form of Exhibit C attached hereto.
4. Method of Payment. Payment of the Exercise Price shall be made
only by one or more of the following methods, or a combination thereof, as
Optionee shall from time to time elect:
(a) cash;
(b) check;
(c) surrender of whole Shares owned by such Optionee immediately
prior to the exercise of the Option that (i) have been owned by Optionee for at
least six months on the date of surrender (or for a shorter period, if the
Committee expressly approves the use of such Shares), and (ii) have an aggregate
Fair Market Value (as determined in accordance with the provisions of the Plan)
on the date of surrender equal to the aggregate Exercise Price of the Shares as
to which the Option is being exercised (it being understood that so-called
"pyramid" or "bootstrap" exercising of options is not permitted by this
Agreement);
(d) delivery, together with such other documentation as the Company
in its sole and absolute discretion shall require, of irrevocable instructions
by Optionee to an approved broker to (i) sell the Shares issuable upon exercise
of the Option and (ii) deliver to the Company the amount of sale proceeds
required to pay the Exercise Price; provided, that: (A) the delivery by the
Company to the approved broker of Shares sold pursuant to the Optionee's
instructions,
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(B) the broker's delivery of the Exercise Price to the Company, and (C) the
broker's delivery of the net proceeds of the sale to the Optionee, take place on
the same date (the "Settlement Date") and; provided, further, that the
Settlement Date is no later than three (3) days following the date the Optionee
provides the approved broker with instructions to sell the Shares issuable upon
the exercise of the Option; or
(e) any combination of the foregoing methods of payment.
5. Compliance with Laws. The Option may not be exercised if the
issuance of Shares upon such exercise or the method of paying the Exercise Price
for such Shares would constitute a violation of any applicable federal or state
securities or other law or regulation, including any rule under Part 207 of
Title 12 of the Code of Federal Regulations ("Regulation G") as promulgated by
the Federal Reserve Board.
6. Non-Transferability. Neither the Option nor any rights of
Optionee hereunder may be transferred or assigned in any manner otherwise than
by will or by the laws of descent or distribution or pursuant to a Domestic
relations order, and, except as otherwise required pursuant to a Domestic
relations order, the Option may be exercised during the lifetime of Optionee
only by Optionee (or his or her court appointed legal representative). The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
7. Term of Option. Unless earlier terminated pursuant to the terms
of the Plan, the term of the Option shall commence on the date of this Agreement
and shall automatically expire on the tenth (10th) anniversary of the Grant
Date, to the extent not theretofore exercised.
8. Incorporation of the Plan; Entire Agreement; Governing Law. This
Agreement is an Agreement entered into pursuant to the Plan, and the Option is
an Option granted under the Plan, and the Plan is hereby incorporated herein by
reference. Optionee agrees that his or her rights under the Option and this
Agreement shall be subject to such administrative rules and interpretations of
the Plan as the Board shall adopt in accordance with the Plan. The Plan
(including any and all such rules and interpretations) and this Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and Optionee and Company hereby represent and warrant that no promise or
agreement not herein expressed has been made by any person with respect to this
Agreement or the subject matter hereof. If any provision of this Agreement
conflicts with any requirement of the Plan, the Plan requirements shall govern.
This Option Agreement shall be governed by the laws of the State of Delaware
applicable to contracts made and performed wholly therein.
9. Notices. All notices, requests or demands under this Agreement
will be in writing and will be deemed to have been duly given or delivered (a)
when delivered by hand, (b) one (1) day after being given to an express courier
with a reliable system for tracking delivery, (c) when sent by confirmed
facsimile with a copy sent by another means specified in this Section 9, or (d)
five (5) days after the date of mailing by certified or registered mail, return
receipt requested, postage prepaid, and addressed as follows:
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In the case of the Company:
OpenTV Corp.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax : (000) 000-0000
Attn: General Counsel
and in the case of Optionee, to Optionee at the address indicated on
the signature page of this Agreement; or in either case to such
other address, or to the attention of such other person, as the
recipient party shall have specified by prior written notice to the
sending party, as reflected in the books and records of the Company
from time to time.
10. Optionee Service as Director. Nothing contained in this
Agreement, and no action of the Company or the Board with respect hereto, shall
confer or be construed to confer on Optionee any right to continue as a director
of the Company or interfere in any way with the right of the stockholders of the
Company to remove Optionee as a director at any time, with or without cause.
11. Amendment. Notwithstanding any other provisions hereof, this
Agreement may be supplemented or amended from time to time as approved by the
Committee as contemplated by Section 11.8(b) of the Plan. Without limiting the
generality of the foregoing, without the consent of the Optionee:
(a) this Agreement may be amended or supplemented (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or (ii) to add to the
covenants and agreements of the Company for the benefit of Optionee or surrender
any right or power reserved to or conferred upon the Company in this Agreement,
subject, however, to any required approval of the Company's shareholders and,
provided, in each case, that such changes or corrections shall not adversely
affect the rights of Optionee with respect to the Option evidenced hereby, or
(iii) to make such other changes as the Company, upon advice of counsel,
determines are necessary or advisable because of the adoption or promulgation
of, or change in or of the interpretation of, any law or governmental rule or
regulation, including any applicable federal or state securities laws; and
(b) subject to Section 11.8(b) of the Plan and any required approval
of the Company's shareholders, the Option evidenced by this Agreement may be
cancelled by the Committee and a new Option granted in substitution therefor,
provided that the Option so substituted shall satisfy all of the requirements of
the Plan as of the date such new Option grant is made and no such action shall
adversely affect the Option to the extent then exercisable.
12. Optionee Acceptance. Optionee shall signify acceptance of the
terms and conditions of this Agreement by signing in the space provided at the
end hereof and returning a signed copy to the Company. This Agreement may be
executed in any number of counterparts (i.e., duplicate originals) and on
separate counterparts, each of which shall be deemed to be an original
instrument and all of which shall together constitute a single agreement.
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13. Code Section 409A. If any provision of this Agreement would
result in the imposition of an excise tax under Section 409A of the Code and
related regulations and Treasury pronouncements ("Section 409A"), that provision
will be reformed to avoid imposition of the excise tax and no action taken to
comply with Section 409A shall be deemed to impair a benefit under this
Agreement or require the consent of the Optionee.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above.
OPENTV CORP.
By: ________________________________
Name:
Title:
Optionee has had an opportunity to obtain the advice of counsel
prior to executing this Option and fully understands all provisions of the
Option. Optionee further agrees to notify the Company upon any change in the
residence address indicated below.
Dated: _______________________________ _______________________________
NAME OF OPTIONEE
Residence Address:
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EXHIBIT A
OpenTV Corp. 2005 Incentive Plan
[Filed as Exhibit 4.2 to this Form S-8]
A-1
EXHIBIT B
OpenTV Corp.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax : (000) 000-0000
Attn: General Counsel
Exercise Notice
Gentlemen:
Effective at the close of business today, _________________, 20__, the
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
____ Class A Ordinary Shares, no par value (the "Shares"), of OpenTV Corp. (the
"Company"), pursuant to the Stock Option Agreement dated as of
_________________, 20__ (the "Option Agreement"), between Optionee and the
Company, and hereby acknowledges, represents and agrees, for the benefit of the
Company as follows:
1. Option Agreement. Optionee has read and understands the Option
Agreement and the Plan and is bound by the terms and conditions thereof. Unless
otherwise defined herein, terms defined in the Option Agreement have the same
meanings in this Exercise Notice.
2. Rights as Stockholder. Until the stock certificate evidencing the
Shares has been issued (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a shareholder shall exist with
respect to any Shares, notwithstanding the exercise of the Option. The Company
shall issue or cause to be issued such stock certificate promptly after the
Option is exercised. No adjustment will be made for any dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as provided in Plan.
3. Tax Consultation. Optionee understands that Optionee may incur tax
consequences as a result of Optionee's purchase or disposition of the Shares.
Optionee has consulted with any tax consultants Optionee deems advisable in
connection with the purchase or disposition of the Shares and is not relying on
the Company for any tax advice.
4. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Optionee agrees that, if, at the time the Option is
exercised, the issuance of Shares on exercise of the Option has not been
registered pursuant to an effective registration statement under the Securities
Act of 1933, as amended, the Company (or its transfer agent) may cause a legend
in substantially the form set forth below, and/or such other legend or legends
as the Company, in its sole discretion, deems necessary, proper or advisable
under U.S.
B-1
federal and applicable state securities laws and regulations, to be placed on
any certificate(s) evidencing ownership of the Shares:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, and may not be sold or
otherwise transferred unless so registered or unless an exemption
from the registration requirements of such Act is available for such
sale or transfer."
(b) Stop-Transfer Notices; Refusal to Transfer. The Company may issue
appropriate "stop transfer" instructions to its transfer agent from time to time
in order to ensure compliance with the restrictions referred to herein. The
Company shall not be required to transfer on its books any Shares that have been
sold or otherwise transferred in violation of any of the provisions of this
Exercise Notice or to treat as owner of such Shares or to accord the right to
vote or pay dividends to any purchaser or other transferee to whom such Shares
shall have been transferred.
5. Successors and Assigns. This Exercise Notice shall be binding upon
Optionee, his heirs, executors, administrators, successors and assigns, and
shall inure to the benefit of the Company, its successors and assigns.
6. Governing Law; Severability. This Exercise Notice shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made and performed wholly therein. Should any provision of this
Exercise Notice be determined by a court of law to be illegal or unenforceable,
the other provisions shall nevertheless remain in effect.
7. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be effectively given if given in accordance with Section 9 of
the Option Agreement.
8. Further Instruments. The parties shall execute such further instruments
and take such further action as may be reasonably necessary to carry out the
purposes and intent of this Exercise Notice, the Plan and the Option.
9. Delivery of Payment. Optionee herewith delivers to the Company the full
Exercise Price for the Shares, in accordance with Section 4___ of the Option
Agreement.
10. Entire Agreement. The Option Agreement, the Plan and, if applicable,
the Investment Representation Letter are incorporated herein by reference. This
Exercise Notice, the Option Agreement, the Plan and, if applicable, the
Investment Representation Letter constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede in their entirety all
prior undertakings and agreements of the Company and Optionee with respect to
the subject matter hereof, and may not be modified adversely to the Optionee's
interests except by means of a writing signed by the Company and Optionee.
B-2
Submitted by: Accepted by:
OPTIONEE: OPENTV CORP.
By: ________________________________
Its:________________________________
______________________________
(Signature)
Address:
______________________________
B-3
EXHIBIT C
OpenTV Corp.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax : (000) 000-0000
Attn: General Counsel
INVESTMENT REPRESENTATION LETTER
Gentlemen:
In connection with the purchase of Class A Ordinary Shares, no par
value (the "Shares"), of OpenTV Corp. (the "Company"), by exercise of that
certain Stock Option Agreement dated as of ____________ 20__, between the
undersigned ("Optionee") and the Company, Optionee hereby represents and
warrants to the Company as follows:
(a) Optionee is knowledgeable with respect to the business of the
Company and financial affairs and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Shares.
Optionee is acquiring the Shares for investment for Optionee's own account only
and not with a view to, or for resale in connection with, any "distribution"
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
(b) Optionee acknowledges and understands that the Shares constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Optionee's
investment intent as expressed herein. In this connection, Optionee understands
that, in the view of the Securities and Exchange Commission, the statutory basis
for such exemption may be unavailable if Optionee's representation was
predicated solely upon a present intention to hold these Shares for the minimum
capital gains period specified under tax statutes, for a deferred sale, for or
until a given increase or decrease in the market price of the Shares, or for a
period of one year or any other fixed period in the future.
(c) Optionee is familiar with the provisions of Rule 144 promulgated
under the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions, including: (1) the resale to occur not less than one year after the
Shares were acquired, (2) the resale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); and,
in the case of an affiliate, or a nonaffiliate who has held the Shares less than
two years, (3) the availability of certain public information about the Company,
(4) the amount of Shares being sold during any three-month period not exceeding
the limitations specified in Rule 144(e), and (5) the timely filing of a Form
144, if applicable.
C-1
Optionee further understands that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A or some other registration exemption will be
required in connection with any transfer of Shares; and that, notwithstanding
the fact that Rule 144 is not exclusive, the Staff of the Securities and
Exchange Commission has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk. Optionee understands that no
assurances can be given that any such other registration exemption will be
available in such event.
Signature of Optionee:
_______________________________________
Date: ______________, 20_____
C-2
