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EXHIBIT 99.9
SIBYTE, INC.
1998 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
Sibyte, Inc., a Delaware corporation (the "Company"), hereby grants an
option to purchase its Common Stock to the optionee named below. The terms and
conditions of the option are set forth in this Stock Option Agreement and in the
Company's 1998 Stock Incentive Plan (the "Plan").
X. XXXXX INFORMATION
Date of Grant: __________, 199__
Name of Optionee: _________________________________________
Optionee's Social Security Number: ________-______-________
Type of Option: ____ Incentive ("ISO")
____ Nonstatutory ("NSO")
Number of Shares of Common Stock: ___________
Exercise Price per Share: $___________
Vesting Start Date: __________, 199__
Vesting Schedule: Subject to attached Terms and Conditions,
the option shall vest as to 12/48ths of
the shares on the first anniversary of
the Vesting Start Date and 1/48th of the
shares each full month thereafter. The
option shall vest as to an additional
12/48ths of the shares in the event of
Optionee's Service termination due to
death or Disability.
BY SIGNING BELOW, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED
IN THIS STOCK OPTION AGREEMENT, INCLUDING THE ATTACHED TERMS AND
CONDITIONS, NOTICE OF EXERCISE AND PLAN.
Optionee:
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(Signature)
Company:
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(Signature)
Title:
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II. TERMS AND CONDITIONS
1. VESTING. Your option vests during your Service on the dates specified
in the first page of this Stock Option Agreement. Vesting will cease if your
Service terminates for any reason.
2. SERVICE; LEAVES OF ABSENCE. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to, the Company (or any
subsidiary) as determined in the sole discretion of the Board. For purposes of
your option, your Service does not terminate when you go on a bona fide leave of
absence, that was approved by the Company in writing, if the terms of the leave
provide for continued service crediting, or when continued service crediting is
required by applicable law. However, for purposes of determining whether your
option is entitled to ISO status, your Service will be treated as terminating
ninety (90) days after you went on leave, unless your right to return to active
work is guaranteed by law or by a contract. Your Service terminates in any event
when the approved leave ends, unless you immediately return to active work. The
Company determines which leaves count toward Service, and when your Service
terminates for all purposes under the Plan.
3. TERM OF OPTION. Your option expires on the day before the 10th
anniversary of the Date of Xxxxx, and will expire earlier if your Service
terminates as follows:
(a) REGULAR TERMINATION. If your Service terminates for any reason
except cause, death or Disability, then your option will expire
at the close of business at Company headquarters three (3)
months after your termination date.
(b) CAUSE. If your Service terminates for cause, your option will
expire immediately.
(c) DEATH. If you die while in Service, then your option will expire
at the close of business at Company headquarters on the date six
(6) months after the date of death. During that six (6) month
period, your estate or heirs may exercise the vested portion of
your option.
(d) DISABILITY. If your Service terminates because of your
Disability, then your option will expire at the close of
business at Company headquarters on the date six (6) months
after your termination date. Disability shall have the meaning
set forth in section 22(e)(3) of the Code.
4. EXERCISE OF OPTION.
(a) LEGAL RESTRICTIONS. The Company will not permit you to exercise
your option if the issuance of Common Stock at that time would
violate any law or regulation. You represent and agree that the
Common Stock to be acquired upon exercising your option will be
acquired for investment, and not with a view to the sale or
distribution thereof. If the sale of Common Stock under the Plan
is not registered under the Securities Act but an exemption is
available which requires an investment representation or other
representation, you shall represent and agree at
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the time of exercise to make such representations as are deemed
necessary or appropriate by the Company and its counsel.
(b) METHOD OF EXERCISE. To exercise your option, you must complete
and file the Company's "Notice of Exercise" form at the address
given on the form, together with full payment. The Notice of
Exercise will be effective when it is received by the Company.
If someone else wants to exercise your option after your death,
that person must prove to the Company's satisfaction that he or
she is entitled to do so.
(c) FORM OF PAYMENT. When you submit a Notice of Exercise, you must
include payment of the aggregate Exercise Price for the Common
Stock you are purchasing. Payment may be made in one (or a
combination) of the following forms.
- Your personal check, a cashier's check or a money order.
- To the extent that a public market for Common Stock
exists as determined by the Company, by delivery (on a
form approved by the Company) of an irrevocable
direction to a securities broker to sell Common Stock
and to deliver all or part of the sale proceeds to the
Company in payment of the aggregate Exercise Price.
(d) WITHHOLDING TAXES. You will not be allowed to exercise your
option unless you make acceptable arrangements to pay any
withholding or other taxes that may be due as a result of the
option exercise or the sale of Common Stock acquired upon
exercise of your option.
5. EXERCISE OF OPTION BEFORE VESTING ("EARLY EXERCISE"). You may
exercise your option before it is fully vested.
Common Stock received upon the exercise of the unvested portion of your
option shall be subject to the Company's right of repurchase, which right of
repurchase shall lapse at the rate of the option would have vested had there
been no exercise. The Company's right of repurchase shall terminate ninety (90)
days after the later of (a) your Service termination or (b) your date of
exercise.
The certificates for the Common Stock subject to the Company's right of
repurchase shall be deposited in escrow with the Secretary of the Company to be
held as described herein. Each deposited certificate shall be accompanied by a
duly executed Assignment Separate from Certificate in the form attached. The
deposited certificates, shall remain in escrow until such time or times as the
certificates are to be released or otherwise surrendered for cancellation as
discussed below.
All regular cash dividends on the Common Stock (or other securities at
the time held in escrow) shall be paid directly to you and shall not be held in
escrow. However, in the event of any stock dividend, stock split,
recapitalization or other change affecting the Company's
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outstanding Common Stock as a class effected without receipt of consideration,
any new, substituted or additional securities or other property which is by
reason of such transaction distributed shall be immediately delivered to the
Secretary of the Company to be held in escrow hereunder, but only to the extent
the Common Stock is at the time subject to the escrow requirements hereof.
The Common Stock held in escrow hereunder shall be subject to the
following terms and conditions relating to their release from escrow or their
surrender to the Company for repurchase and cancellation:
- As your interest in the Common Stock vests, the certificates for
such vested Common Stock shall be released from escrow and
delivered to you, at your request, in accordance with the
following schedule:
- The initial release of any vested Common Stock (or other
vested assets and securities) from escrow shall be
effected within thirty (30) days following the
expiration of the initial twelve (12) month period
measured from the Vesting Start Date.
- Subsequent releases of any vested Common Stock from
escrow shall be effected at annual intervals thereafter,
with the first such annual release to occur twenty-four
(24) months after the Vesting Start Date.
- Upon termination of your Service, any escrowed Common
Stock in which you are at the time vested shall be
promptly released from escrow.
- Should the Company exercise its right of repurchase with respect
to any unvested Common Stock held at the time in escrow
hereunder, then the escrowed certificates for such unvested
Common Stock shall, concurrently with the payment of the
purchase price for such Common Stock, be surrendered to the
Company for cancellation, and you shall have no further rights
with respect to such Common Stock.
- Should the Company elect not to exercise its right of repurchase
with respect to any Common Stock held at the time in escrow
hereunder, then the escrowed certificates for such Common Stock
shall be surrendered to you.
6. RESALE RESTRICTIONS/MARKET STAND-OFF. In connection with any
underwritten public offering by the Company of its equity securities pursuant to
an effective registration statement filed under the Securities Act of 1993, as
amended, including the Company's initial public offering, you shall not sell,
make any short sale of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or agree to engage in
any of the foregoing transactions with respect to any Common Stock without the
prior written consent of the
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Company or its underwriters, for such period of time after the effective date of
such registration statement as may be requested by the Company or such
underwriters, not to exceed one hundred eighty (180) days. To enforce the
provisions of this paragraph, the Company may impose stop-transfer instructions
with respect to the Common Stock until the end of the applicable stand-off
period. You may not to sell any Common Stock at a time when applicable laws,
regulations or Company or underwriter trading policies prohibit a sale.
7. RIGHT OF FIRST REFUSAL. If you propose to sell, pledge or otherwise
transfer to a third party any Common Stock acquired under this Stock Option
Agreement, or any interest in such Common Stock, the Company shall have the
"Right of First Refusal" with respect to all (and not less than all) of such
Common Stock. If you desire to transfer Common Stock acquired under this Stock
Option Agreement, you must give a written notice ("Transfer Notice") to the
Company describing fully the proposed transfer, including the number of 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 you and
by the proposed new transferee and must constitute a binding commitment of both
parties to the transfer of the Common Stock. The Company shall have the right to
purchase all, and not less than all, of the Common Stock on the terms of the
proposal described in the Transfer Notice (subject, however, to any change in
such terms permitted in the next paragraph) by delivery of a notice of exercise
of the Right of First Refusal within thirty (30) days after the date when the
Transfer Notice was received by the Company.
If the Company fails to exercise its Right of First Refusal before or
within thirty (30) days after the date when it received the Transfer Notice, you
may, not later than ninety (90) days following receipt of the Transfer Notice by
the Company, conclude a transfer of the Common Stock 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 you, shall again
be subject to the Right of First Refusal and shall require compliance with the
procedure described in the paragraph above. If the Company exercises its Right
of First Refusal, the parties shall consummate the sale of the Common Stock on
the terms set forth in the Transfer Notice within sixty (60) days after the date
when the Company received the Transfer Notice (or within such longer period as
may have been specified in the Transfer Notice); provided, however, that if the
Transfer Notice provided that payment for the Common Stock was to be made in a
form other than lawful money paid at the time of transfer, the Company shall
have the option of paying for the Common Stock with lawful money equal to the
present value of the consideration described in the Transfer Notice.
The Company's Right of First Refusal shall inure to the benefit of its
successors and assigns, shall be freely assignable in whole or in part and shall
be binding upon any transferee of the Common Stock. The Company's right of First
Refusal shall terminate if the Company's Common Stock is listed on an
established stock exchange or is quoted regularly on the Nasdaq Stock Market.
8. TRANSFER OF OPTION. Prior to your death, only you may exercise your
option. You cannot transfer or assign your option. For instance, you may not
sell your option or use it as security for a loan. If you attempt to do any of
these things, your option will immediately
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become invalid. You may, however, dispose of your option in your will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your option
in any other way.
9. NO RETENTION RIGHTS. Your option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
10. STOCKHOLDER RIGHTS. You, or your estate or heirs, have no rights as
a stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
11. ADJUSTMENTS TO COMMON STOCK. In the event of a stock split, a stock
dividend or a similar change in the Company's Common Stock, the number of shares
covered by your option and the exercise price per share may be adjusted pursuant
to the Plan. Your option shall be subject to the terms of the agreement of
merger, liquidation or reorganization in the event the Company is subject to
such corporate activity.
12. LEGENDS. All certificates representing the Common Stock issued upon
exercise of your option shall, where applicable, have endorsed thereon any
legends required by applicable law, including the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY AND
THE INITIAL HOLDER HEREOF. SUCH AGREEMENT PROVIDES FOR CERTAIN TRANSFER
RESTRICTIONS, INCLUDING RIGHTS OF FIRST REFUSAL UPON AN ATTEMPTED
TRANSFER OF THE SECURITIES AND CERTAIN REPURCHASE RIGHTS IN FAVOR OF THE
COMPANY UPON TERMINATION OF SERVICE WITH THE COMPANY. THE SECRETARY OF
THE COMPANY WILL UPON WRITTEN REQUEST XXXXXXX A COPY OF SUCH AGREEMENT
TO THE HOLDER HEREOF WITHOUT CHARGE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, 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 THAT REGISTRATION AND QUALIFICATION
UNDER FEDERAL AND STATE SECURITIES LAWS ARE NOT REQUIRED."
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13. APPLICABLE LAW. This Agreement will be interpreted and enforced
under the laws of the State of California.
14. INCORPORATION OF PLAN BY REFERENCE. The text of the Plan is
incorporated in this Agreement by reference. Certain capitalized terms used in
this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire understanding between
you and the Company regarding your option. Any prior agreements, commitments or
negotiations concerning your option are superseded.
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NOTICE OF EXERCISE
Sibyte, Inc.
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Attn: Chief Financial Officer
Re: Exercise of Stock Option
Dear Sir or Madam:
Pursuant to the Stock Option Agreement dated __________, 199___ (the
"Stock Option Agreement") and the Company's 1998 Stock Incentive Plan (the
"Plan"), I hereby elect to purchase _____________ shares of the Common Stock of
the Company at aggregate exercise price of $__________. I enclose payment and
other documents (check all that are applicable):
[ ] My check in the amount of $___________;
[ ] If I am exercising an unvested option, I also enclose an executed
Assignment Separate From Certificate.
The Common Stock is to be issued and registered in the name(s) of:
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I understand that there may be tax consequences as a result of the
purchase or disposition of the Common Stock, and I have consulted with any tax
consultants I wished to consult and I am not relying on the Company for any tax
advice. I understand that my exercise is governed by my Stock Option Agreement
and the Plan and agree to abide by and be bound by their terms and conditions. I
represent that the Common Stock is being acquired solely for my own account and
not as a nominee for any other party, or for investment, and that I will not
offer, sell or otherwise dispose of any such Common Stock except under
circumstances that will not result in a violation of the Securities Act of 1933,
as amended, or any state securities laws.
Dated: __________, 199__
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(Signature)
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(Please Print Name)
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(Address)
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Option Agreement
dated as of __________, 199__, the undersigned hereby sells, assigns and
transfers unto ______________________________ (__________) shares of the Common
Stock of Tharas Systems, Inc., a Delaware corporation, standing in the
undersigned's name on the books of said corporation represented by certificate
No. _________ herewith, and does hereby irrevocably constitute and appoint
________________________________________ attorney to transfer the said stock on
the books of the said corporation with full power of substitution in the
premises.
Dated: __________, 19__.
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Signature
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Print Name
