Contract
EXHIBIT 4.3
THE OPTION GRANTED PURSUANT TO THIS INCENTIVE STOCK OPTION AGREEMENT (THE “OPTION”) AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF ANY STATE. AND MAY BE SOLD OR OFFERED 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.
INCENTIVE STOCK OPTION PLAN AND AGREEMENT
OF 1997
THIS AGREEMENT entered into as of ________________, between NURLOGIC DESIGN, INC., a California corporation (the “Company”), and ________________ (the “Optionee”).
NOW, THEREFORE, it is agreed as follows:
(a) Option. On the terms and conditions stated below, the Company hereby grants to the Optionee the option to purchase ________________ thousand (________________) Shares for the sum of ________________ ($_____) per Share, which is agreed to be one hundred
percent (100%) of the Fair Market Value thereof on the Date of Grant (110% for a 10% owner of the Company). This option is intended to be an Incentive Stock Option.
Optionee has the right to exercise this option at any time during the terms set forth in Section 6. The Optionee shall exercise this option in accordance with Section 4.
SECTION 3. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Agreement. this option and the rights and privileges conferred hereby shall not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to sale under execution, attachment, levy or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this option. or of any right or privilege conferred hereby, contrary to the provisions hereof, or upon any attempted sale under any execution, attachments levy or similar process upon the rights and privileges conferred hereby, this option and the rights and privileges conferred hereby shall immediately become null and void.
SECTION 4. EXERCISE PROCEDURES.
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the Company, at the time of giving the notice, payment in a form permissible under Section 5 for the full amount of the Purchase Price.
SECTION 6. TERM AND EXPIRATION.
(a) Term. This option shall in any event expire on the date ten (10) years after the Date of Grant.
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SECTION 7. THE COMPANY’S RIGHT OF FIRST REFUSAL.
SECTION 8. LEGALITY OF INITIAL ISSUANCE.
No Shares shall be issued upon the exercise of this option unless and until the Company has determined that:
(a) It and the Optionee have taken any actions required to register the Shares under the Securities Act or to perfect an exemption from the registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange on which Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been satisfied.
SECTION 9. NO REGISTRATION RIGHTS.
The Company may, but shall not be obligated to, register or qualify the sale of 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 sale of Shares under this Agreement to comply with any law.
SECTION 10. SECURITIES LAW RESTRICTIONS ON TRANSFER.
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desirable in order to achieve compliance with the Securities Act, the securities laws of any state or any other law or with restrictions imposed by the Company’s underwriters.
Purchaser understands that neither the option nor the Stock will not be registered under the Securities Act on the ground that the sale provided for in this Agreement is exempt from registration under the Securities Act, and that the Company’s reliance on such exemption is predicated on Purchaser s representations set forth herein.
Purchaser agrees that in no event will Purchaser make a disposition of any of the Stock (including a disposition under Section 9 of Exhibit A) unless and until (i) Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition and (ii) Purchaser shall have furnished the Company with an opinion of counsel satisfactory to the Company to the effect that (A) such disposition will not require registration or qualification of such Stock under federal or state securities laws or (B) appropriate action necessary for compliance with the federal or state securities
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laws has been taken or (iii) the Company shall have waived, expressly and in writing, its rights under clauses (i) and (ii) of this section.
In connection with the investment representations made herein, Purchaser represents that Purchaser is able to fend for himself or herself in the transactions contemplated by this Agreement, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of Purchaser’s investment, has the ability to bear the economic risks of Purchaser’s investment and has been furnished with and has had access to such information as would be made available in the form of a registration statement together with such additional information as is necessary to verify the accuracy of the information supplied and to have all questions answered by the Company.
Purchaser understands that if the Company does not register with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or if a registration statement covering the Stock (or a filing pursuant to the exemption from registration under Regulation A of the Securities Act) under the Securities Act is not in effect when Purchaser desires to sell the Stock, Purchaser may be required to hold the Stock for an indeterminate period, Purchaser also acknowledges that Purchaser understands that any sale of the Stock which might be made by Purchaser in reliance upon Rule 144 under the Securities Act may be made only in limited amounts in accordance with the terms and conditions of that Rule.
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“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.”
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SECTION 11. SHARES AND ADJUSTMENTS.
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SECTION 12. MISCELLANEOUS PROVISIONS.
(e) Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, as such laws are applied to contracts entered into and performed in such State.
(a) “Agreement” shall mean this Incentive Stock Option Agreement.
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(b) “Board” shall mean the Board of Directors of the Company, as constituted from time to time.
(c) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(d) “Date of Grant” shall mean the date of this Agreement.
(e) “Exercise Price” shall mean the amount for which one Share may be purchased upon exercise of this option, as specified in Section 1(a).
(f) “Fair Market Value” shall mean the fair market value of a Share, as determined by the Board in good faith. Such determination shall be conclusive and binding on all persons.
(g) “Purchase Price” shall mean the Exercise Price multiplied by the number of Shares with respect to which this option is being exercised.
(h) “Right of First Refusal” shall mean the Company’s right of first refusal described in Section 7 of Exhibit A.
(i) “Securities Act” shall mean the Securities Act of 1933, as amended.
(j) “Share” shall mean one share of Stock, as adjusted in accordance with Section 11 (if applicable).
(k) “Stock” shall mean the Common Stock of the Company.
(1) “Transferee” shall mean any person to whom the acquired under this Agreement.
SECTION 14. STOCK OPTION AGREEMENT RATE OF VESTING.
(a) This option grant shall become exercisable at the rate of ________ per year for the first ______ years from the date of ____________.
(b) This option grant shall accelerate to 100% vested in the event that a Change-in-Control happens at the Company. Change-in-Control to mean the instances stated in part c of SECTION 14.
(c) “Change-in-Control occurs in the following instances (1) Company shareholder approval of a merger in which the Company does not survive as an independent and publicly owned
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corporation (except a merger which leaves Company shareholders with substantially the same ownership in the new corporation); (2) Company shareholder approval of a consolidation or sale, exchange or other disposition of all, or substantially all, of the Company s assets; (3) change in the composition of the Board over a two consecutive year period so that individuals who were directors at the beginning of that period no longer constitute a majority of the Board (unless the election or nomination of each new director was approved by at least two-thirds of the directors who had been directors at the beginning of the period and who were still in office at the time of the election or nomination); (4) the acquisition of sufficient Common Shares such that a person who previously did not own at least 50% of Company Common Shares, thereafter owns at least 50% (except an acquisition by the Company itself, by a subsidiary of the Company or a benefit plan maintained by the Company).
OPTIONEE |
NURLOGIC DESIGN, INC. | |||||||
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By: |
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Optionee’s Address: |
Company’s Address:
0000 Xxxxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000-0000 |
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