EXHIBIT 99.2
FORM OF AIMTV, INC. STOCK OPTION AGREEMENT
AIMTV, 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 AimTV, 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 BASE DATE.
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").
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; provided, however, that in the
event of termination of Optionee's continuous status as an employee, director or
consultant for any reason other than death or disability, this ISO may be
exercised in whole or in part at any time within thirty days of the date of such
termination (but in no event after the Expiration Date, as such term is defined
in 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 (including constructive delivery, provided that actual or
constructive delivery of previously owned shares may not be made other 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. Any applicable
taxes must be paid in cash. 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 or shall register the Optionee as a shareholder on the books of the
Company. An Optionee or transferee of 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 or, if applicable, such registration.
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 RIGHT OF REPURCHASE UPON TERMINATION OF EMPLOYMENT. 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
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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 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 member
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 set
forth in the Transfer Notice, other than price which shall be paid as set forth
under Section 8.1; 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
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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.
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 closing of the Company's initial public offering to
the public generally.
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.
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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 registered
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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 one year
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:
AimTV, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: President
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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.
19. ARBITRATION. Any and all disputes or controversies arising out of this
Agreement shall be finally settled by arbitration conducted in San Francisco,
California in accordance with the then existing rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof; provided that nothing
in this Section 19 shall prevent a party from applying to a court of competent
jurisdiction to obtain temporary relief pending resolution of the dispute
through arbitration. The parties hereby agree that service of any notices in the
course of such arbitration at their respective addresses as provided for in
Section 18 shall be valid and sufficient.
20. ENTIRE AGREEMENT. Company and Optionee agree that this Agreement
(including its attached Exhibits) is the complete and exclusive statement
between Company and Optionee regarding its subject matter and supersedes all
prior proposals, communications, and agreements of the parties (including any
letter from the Company to Optionee setting forth proposed terms of employment),
whether oral or written, regarding the grant of stock options or issuances of
shares to Optionee.
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IN WITNESS WHEREOF, the parties have executed this Incentive Stock Option
Agreement as of the Effective Date.
AIMTV, INC.
By:
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Title:
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The Optionee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.
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Xxxx Xxxxxx
Optionee's spouse indicates by the execution of this Incentive Stock
Option Agreement such spouse's consent to be bound by the terms thereof as to
such spouse's interests, whether as community property or otherwise, if any, in
the option granted hereunder, and in any ISO Shares purchased pursuant to this
Agreement.
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Optionee's Spouse
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EXHIBITS
Exhibit I Stock Option Plan
Exhibit 5.1 Time of Exercise
Exhibit 5.3 Stock Option Plan Stock Purchase Agreement
EXHIBIT 1 OF THE INCENTIVE STOCK
OPTION AGREEMENT
STOCK OPTION PLAN
