SYMYX TECHNOLOGIES, INC. OPTION AGREEMENT (NONSTATUTORY STOCK OPTION)
EXHIBIT
10.7
SYMYX
TECHNOLOGIES, INC.
2001
NONSTATUTORY STOCK OPTION PLAN
(NONSTATUTORY
STOCK OPTION)
Pursuant
to your Stock Option Grant Notice (“Grant Notice”) and
this Option Agreement, Symyx Technologies, Inc. (the
“Company”) has granted you an option under
its
2001 Nonstatutory Stock Option Plan (the
“Plan”) to purchase the number of shares
of the
Company’s Common Stock indicated in your Grant Notice at the exercise price
indicated in your Grant Notice. Defined terms not explicitly defined
in this Option Agreement but defined in the Plan shall have the same definitions
as in the Plan.
The
details of your option are as follows:
1. VESTING. Subject
to the limitations contained herein, your option will vest as provided in your
Grant Notice, provided that vesting will cease upon the termination of your
Continuous Service.
2. NUMBER
OF SHARES AND EXERCISE PRICE. The number of shares of Common
Stock subject to your option and your exercise price per share referenced in
your Grant Notice may be adjusted from time to time for capitalization
adjustments.
3. EXERCISE
RESTRICTION FOR NON-EXEMPT EMPLOYEES. In the event that you
are an Employee eligible for overtime compensation under the Fair Labor
Standards Act of 1938, as amended (i.e., a “Non-Exempt
Employee”), you may not exercise your option until you have
completed at least six (6) months of Continuous Service measured from the Date
of Grant specified in your Grant Notice, notwithstanding any other provision
of
your option.
4. METHOD
OF PAYMENT. Payment of the exercise price is due in full
upon exercise of all or any part of your option. You may elect to
make payment of the exercise price in cash or by check or in any other manner
permitted by your Grant Notice, which may
include the following:
(a) Provided
that at the time of exercise the Common Stock is publicly traded and quoted
regularly in The Wall Street Journal, pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board that, prior
to
the issuance of Common Stock, results in either the receipt of cash (or check)
by the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds.
5. WHOLE
SHARES. You may exercise your option only for whole shares
of Common Stock.
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6. SECURITIES
LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, you may not exercise your option unless the shares of Common
Stock issuable upon such exercise are then registered under the Securities
Act
or, if such shares of Common Stock are not then so registered, the Company
has
determined that such exercise and issuance would be exempt from the registration
requirements of the Securities Act. The exercise of your option also
must comply with other applicable laws and regulations governing your option,
and you may not exercise your option if the Company determines that such
exercise would not be in material compliance with such laws and
regulations.
7. TERM. You
may not exercise your option before the commencement or after the expiration
of
its term. The term of your option commences on the Date of Grant and
expires upon the earliest of the following:
(a) three
(3) months after the termination of your Continuous Service for any reason
other
than your Disability or death, provided that if during any part of such three
(3) month period your option is not exercisable solely because of the condition
set forth in the section above relating to “Securities Law Compliance,” your
option shall not expire until the earlier of the Expiration Date or until it
shall have been exercisable for an aggregate period of three (3) months after
the termination of your Continuous Service;
(b) twelve
(12) months after the termination of your Continuous Service due to your
Disability;
(c) eighteen
(18) months after your death if you die either during your Continuous Service
or
within three (3) months after your Continuous Service terminates;
(d) the
Expiration Date indicated in your Grant Notice; or
(e) the
day before the [ ]
anniversary of the Date of Grant.
8. EXERCISE.
(a) You
may exercise the vested portion of your option during its term by delivering
a
Notice of Exercise (in a form designated by the Company) together with the
exercise price to the Secretary of the Company, or to such other person as
the
Company may designate, during regular business hours, together with such
additional documents as the Company may then require.
(b) By
exercising your option you agree that, as a condition to any exercise of your
option, the Company may require you to enter into an arrangement providing
for
the payment by you to the Company of any tax withholding obligation of the
Company arising by reason of (1) the exercise of your option, (2) the lapse
of
any substantial risk of forfeiture to which the shares of Common Stock are
subject at the time of exercise, or (3) the disposition of shares of Common
Stock acquired upon such exercise.
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9. CORPORATE
TRANSACTIONS AND CHANGES IN CONTROL.
(a) Corporate
Transaction. Except as provided otherwise in an individual Grant
Notice, in the event of a Corporate Transaction (as defined below), for the
portion of each option that is neither Assumed (as defined below) nor Replaced
(as defined below), such portion of the option shall automatically become
fully
vested and exercisable and be released from any repurchase or forfeiture
rights
(other than repurchase rights exercisable at Fair Market Value) for all of
the
Shares (or other consideration) at the time represented by such portion of
the
option, immediately prior to the specified effective date of such Corporate
Transaction.
(b) Change
in Control. Except as provided otherwise in an individual Grant
Notice, in the event of a Change in Control (as defined below) other than
a
Change in Control which also is a Corporate Transaction, each option which
is at
the time outstanding under the Plan automatically shall become fully vested
and
exercisable and be released from any repurchase or forfeiture rights (other
than
repurchase rights exercisable at Fair Market Value), immediately prior to
the
specified effective date of such Change in Control, for all of the Shares
(or
other consideration) at the time represented by such option.
(c) The
following definitions shall apply as used herein and in the individual Grant
Notices except as defined otherwise in an individual Grant Notice. In
the event a term is separately defined in an individual Grant Notice, such
definition shall supercede the definition contained in this
Section.
(i) “Change
in Control” means a change in ownership or control of
the Company effected through either of the following transactions:
(1) the
direct or indirect acquisition by any person or related group of persons
(other
than an acquisition from or by the Company or by a Company-sponsored employee
benefit plan or by a person that directly or indirectly controls, is controlled
by, or is under common control with, the Company) of beneficial ownership
(within the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Company’s outstanding securities pursuant to a tender or exchange offer made
directly to the Company’s stockholders which a majority of the continuing
directors who are not affiliates or associates of the offeror do not recommend
such stockholders accept, or
(2) a
change in the composition of the Board over a period of twelve (12) months
or
less such that a majority of the Board members (rounded up to the next whole
number) ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who are continuing
directors.
(ii) “Corporate
Transaction” means any of the following transactions, provided, however,
that the Board or any of the Committees appointed to administer the Plan
shall
determine whether multiple transactions are related, and its determination
shall
be final, binding and conclusive:
(1) a
merger or consolidation in which the Company is not the surviving entity,
except
for a transaction the principal purpose of which is to change the state in
which
the Company is incorporated;
(2) the
sale, transfer or other disposition of all or substantially all of the assets
of
the Company;
(3) the
complete liquidation or dissolution of the Company;
(4) any
reverse merger or series of related transactions culminating in a reverse
merger
(including, but not limited to, a tender offer followed by a reverse merger)
in
which the Company is the surviving entity but (A) the shares of Common
Stock outstanding immediately prior to such merger are converted or exchanged
by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, or (B) in which securities possessing more than forty
percent (40%) of the total combined voting power of the Company’s outstanding
securities are transferred to a person or persons different from those who
held
such securities immediately prior to such merger or the initial transaction
culminating in such merger; or
(5) acquisition
in a single or series of related transactions by any person or related group
of
persons (other than the Company or by a Company-sponsored employee benefit
plan)
of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange
Act) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities but excluding any
such transaction or series of related transactions that the Board or any
of the
Committees appointed to administer the Plan determines shall not be a Corporate
Transaction.
(iii) “Assumed”
means that pursuant to a Corporate Transaction either (i) the option is
expressly affirmed by the Company or (ii) the contractual obligations
represented by the option are expressly assumed (and not simply by operation
of
law) by the successor entity or its parent in connection with the Corporate
Transaction with appropriate adjustments to the number and type of securities
of
the successor entity or its parent subject to the option and the exercise
or
purchase price thereof which at least preserves the compensation element
of the
option existing at the time of the Corporate Transaction as determined in
accordance with the instruments evidencing the agreement to assume the
option.
(iv) “Replaced”
means that pursuant to a Corporate Transaction the option is replaced with
a comparable stock award or a cash incentive program of the Company, the
successor entity (if applicable) or parent of either of them which preserves
the
compensation element of such option existing at the time of the Corporate
Transaction and provides for subsequent payout in accordance with the same
(or a
more favorable) vesting schedule applicable to such option. The
determination of option comparability shall be made by the Board or any of
the
Committees appointed to administer the Plan, and its determination shall
be
final, binding and conclusive.
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10. TRANSFERABILITY. Your
option is not transferable, except by will or by the laws of descent and
distribution, and is exercisable during your life only by
you. Notwithstanding the foregoing, by delivering written notice to
the Company, in a form satisfactory to the Company, you may designate a third
party who, in the event of your death, shall thereafter be entitled to exercise
your option. In addition, if permitted by the Company you may
transfer your option to a trust if you are considered to be the sole beneficial
owner (determined under Section 671 of the Code and applicable state law) while
the option is held in the trust, provided that you and the trustee enter into
a
transfer and other agreements required by the Company.
11. RIGHT
OF FIRST REFUSAL. Shares of Common Stock that you acquire
upon exercise of your option are subject to any right of first refusal that
may
be described in the Company’s bylaws in effect at such time the Company elects
to exercise its right. The Company’s right of first refusal shall
expire on the first date upon which any security of the Company is listed (or
approved for listing) upon notice of issuance on a national securities exchange
or quotation system.
12. RIGHT
OF REPURCHASE. To the extent provided in the Company’s
bylaws in effect at such time the Company elects to exercise its right, the
Company shall have the right to repurchase all or any part of the shares of
Common Stock you acquire pursuant to the exercise of your option.
13. OPTION
NOT A SERVICE CONTRACT. Your option is not an employment or
service contract, and nothing in your option shall be deemed to create in any
way whatsoever any obligation on your part to continue in the employ of the
Company or an Affiliate, or of the Company or an Affiliate to continue your
employment. In addition, nothing in your option shall obligate the
Company or an Affiliate, their respective stockholders, Boards of Directors,
Officers or Employees to continue any relationship that you might have as a
Director or Consultant for the Company or an Affiliate.
14. WITHHOLDING
OBLIGATIONS.
(a) At
the time you exercise your option, in whole or in part, or at any time
thereafter as requested by the Company, you hereby authorize withholding from
payroll and any other amounts payable to you, and otherwise agree to make
adequate provision for (including by means of a “cashless exercise” pursuant to
a program developed under Regulation T as promulgated by the Federal Reserve
Board to the extent permitted by the Company), any sums required to satisfy
the
federal, state, local and foreign tax withholding obligations of the Company
or
an Affiliate, if any, which arise in connection with the exercise of your
option.
(b) Upon
your request and subject to approval by the Company, in its sole discretion,
and
compliance with any applicable legal conditions or restrictions, the Company
may
withhold from fully vested shares of Common Stock otherwise issuable to you
upon
the exercise of your option a number of whole shares of Common Stock having
a
Fair Market Value, determined by the Company as of the date of exercise, not
in
excess of the minimum amount of tax required to be withheld by law (or such
lower amount as may be necessary to avoid classification of your option as
a
liability for financial accounting purposes). If the date of
determination of any tax withholding obligation is deferred to a date later
than
the date of exercise of your option, share withholding pursuant to the preceding
sentence shall not be permitted unless you make a proper and timely election
under Section 83(b) of the Code, covering the aggregate number of shares of
Common Stock acquired upon such exercise with respect to which such
determination is otherwise deferred, to accelerate the determination of such
tax
withholding obligation to the date of exercise of your
option. Notwithstanding the filing of such election, shares of Common
Stock shall be withheld solely from fully vested shares of Common Stock
determined as of the date of exercise of your option that are otherwise issuable
to you upon such exercise. Any adverse consequences to you arising in
connection with such share withholding procedure shall be your sole
responsibility.
(c) You
may not exercise your option unless the tax withholding obligations of the
Company and/or any Affiliate are satisfied. Accordingly, you may not
be able to exercise your option when desired even though your option is vested,
and the Company shall have no obligation to issue a certificate for such shares
of Common Stock or release such shares of Common Stock from any escrow provided
for herein unless such obligations are satisfied.
15. NOTICES. Any
notices provided for in your option or the Plan shall be given in writing and
shall be deemed effectively given upon receipt or, in the case of notices
delivered by mail by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the last address you
provided to the Company.
16. GOVERNING
PLAN DOCUMENT. Your option is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your option,
and
is further subject to all interpretations, amendments, rules and regulations
which may from time to time be promulgated and adopted pursuant to the
Plan. In the event of any conflict between the provisions of your
option and those of the Plan, the provisions of the Plan shall
control.
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