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Exhibit 10.17
INCENTIVE STOCK OPTION AGREEMENT
UNDER THE SERVICESOFT TECHNOLOGIES, INC.
1999 STOCK OPTION AND GRANT PLAN
Name of Optionee: _______________________
No. of Option Shares: _______________________ Shares of Common Stock
Grant Date: _______________________
Expiration Date: _______________________
Option Exercise Price/Share: _______________________
Pursuant to the Servicesoft Technologies, Inc. 1999 Stock Option and Grant
Plan (the "1999 Plan"), Servicesoft Technologies, Inc. a Delaware corporation
(together with all successors thereto, the "Company"), hereby grants to the
person named above (the "Optionee"), who is an officer, employee, director,
consultant or other key person of the Company or any of its Subsidiaries (as
defined in the 1999 Plan), an option (the "Stock Option") to purchase on or
prior to the expiration date specified above (the "Expiration Date"), or such
earlier date as is specified herein, all or any part of the number of shares of
Common Stock, par value $.01 per share ("Common Stock"), of the Company
indicated above (the "Option Shares," and such shares once issued shall be
referred to as the "Issued Shares"), at the option exercise price per share
specified above (the "Option Exercise Price"), subject to the terms and
conditions set forth in this Incentive Stock Option Agreement (the "Agreement")
and in the 1999 Plan. This Stock Option is intended to qualify as an "incentive
stock option" as defined in Section 422(b) of the Internal Revenue Code of 1986,
as amended from time to time (the "Code"). To the extent that any portion of the
Stock Option does not so qualify, it shall be deemed a non-qualified stock
option. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the 1999 Plan.
1. VESTING AND EXERCISABILITY.
(a) No portion of this Stock Option may be exercised until such
portion shall have vested.
(b) Except as set forth below and in Section 6, and subject to the
determination of the Compensation Committee of the Board of Directors of the
Company or the Board of Directors of the Company, as applicable (the
"Committee"), in its sole discretion to accelerate the vesting schedule
hereunder, this Stock Option shall be vested and exercisable with respect to the
Option Shares on the respective dates as follows: (i) 25% of the Option Shares
on the first anniversary of the Grant Date (as set forth above) and (ii) 2.08 %
of the Option Shares on the monthly anniversary of the Grant Date thereafter.
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(c) Except as set forth in the 1999 Plan with regard Corporate
Transactions, in the event that the Optionee's Service Relationship with the
Company and its Subsidiaries terminates for any reason or under any
circumstances, including the Optionee's resignation, retirement or termination
by the Company, upon the Optionee's death or disability, or for any other
reason, regardless of the circumstances thereof, this Stock Option may
thereafter be exercised, to the extent it was vested and exercisable on such
date of such termination, until the date specified in Section l(d) below. Any
portion of the Stock Option that is not exercisable on the date of termination
of the Service Relationship shall immediately expire and be null and void.
(d) Subject to the provisions of Section 6 below, once any portion of
this Stock Option becomes vested and exercisable, it shall continue to be
exercisable by the Optionee or his or her successors as contemplated herein at
any time or times prior to the earliest of (i) the date which is (A) 12 months
following the date on which the Optionee's Service Relationship with the Company
and its Subsidiaries terminates due to death or disability (as defined in
Section 422(c)(6) of the Code) or (B) 90 days following the date on which the
Optionee's Service Relationship with the Company and its Subsidiaries terminates
if the termination is due to any other reason, PROVIDED HOWEVER, if the
Optionee's Service Relationship is terminated for cause, this Stock Option shall
terminate immediately upon the date of the Optionee's termination, or (ii) the
Expiration Date set forth above. For purposes of this Agreement the Committee
shall have sole discretion to determine the reason for the termination of the
Optionee's Service Relationship with the Company or any Subsidiary.
(e) It is understood and intended that this Stock Option is intended
to qualify as an "incentive stock option" as defined in Section 422 of the Code
to the extent permitted under applicable law. Accordingly, the Optionee
understands that in order to obtain the benefits of an incentive stock option
under Section 422 of the Code, no sale or other disposition may be made of
Issued Shares for which incentive stock option treatment is desired within the
one-year period beginning on the day after the day of the transfer of such
Issued Shares to him or her, nor within the two-year period beginning on the day
after the grant of this Stock Option and further that this Stock Option must be
exercised within three months after termination of employment (or twelve months
in the case of death or disability) to qualify as an incentive stock option. If
the Optionee disposes (whether by sale, gift, transfer or otherwise) of any such
Issued Shares within either of these periods, he or she will notify the Company
within thirty (30) days after such disposition. The Optionee also agrees to
provide the Company with any information concerning any such dispositions
required by the Company for tax purposes. Further, to the extent Option Shares
and any other incentive stock options of the Optionee having an aggregate fair
market value in excess of $100,000 (determined as of the Grant Date (as set
forth above)) vest in any year, such options will not qualify as incentive stock
options.
2. EXERCISE OF STOCK OPTION
(a) The Optionee may exercise this Stock Option only in the following
manner: Prior to the Expiration Date (subject to Section 6), the Optionee may
deliver a Stock Option exercise notice (an "Exercise Notice") in the form of
Appendix A hereto indicating his or her election to purchase some or all of the
Option Shares with respect to which this Stock Option has vested at the time of
such notice. Such notice shall specify the number of Option Shares to
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be purchased. Payment of the purchase price may be made by one or more of the
following methods; provided, however, that the methods set forth in subsections
(ii) and (iii) below shall become available only after the closing of the
Initial Public Offering:
(i) In cash by certified or bank check or other instrument
acceptable to the Committee; or
(ii) In the form of shares of Stock that are not then subject to
restrictions under any Company plan and that have been held by the optionee free
of such restrictions for at least six months, if permitted by the Committee in
its discretion such surrendered shares shall be valued at Fair Market Value on
the exercise date;
(iii) By the optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable to the
Company to pay the purchase price; provided that in the event the optionee
chooses to pay the purchase price as so provided, the optionee and the broker
shall comply with such procedures and enter into such agreements of indemnity
and other agreements as the Committee shall prescribe as a condition of such
payment procedure;
(iv) By the optionee delivering to the Company a promissory note
if the Board has authorized the loan of funds to the optionee for the purpose of
enabling or assisting the optionee to effect the exercise of his Stock Option;
PROVIDED THAT at least so much of the exercise price as represents the par value
of the Stock shall be paid other than with a promissory note
(b) Certificates for the Option Shares so purchased will be issued
and delivered to the Optionee upon compliance to the satisfaction of the
Committee with all requirements under applicable laws or regulations in
connection with such issuance. Until the Optionee shall have complied with the
requirements hereof and of the 1999 Plan, the Company shall be under no
obligation to issue the Option Shares subject to this Stock Option, and the
determination of the Committee as to such compliance shall be final and binding
on the Optionee. The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares of stock subject
to this Stock Option unless and until this Stock Option shall have been
exercised pursuant to the terms hereof, the Company shall have issued and
delivered the Option Shares to the Optionee, and the Optionee's name shall have
been entered as a stockholder of record on the books of the Company. Thereupon,
the Optionee shall have full dividend and other ownership rights with respect to
such Issued Shares, subject to the terms of this Agreement.
(c) Notwithstanding any other provision hereof or of the 1999 Plan,
no portion of this Stock Option shall be exercisable after the Expiration Date,
including such date as is contemplated by Section 6 hereof.
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3. INCORPORATION OF 1999 PLAN.
Notwithstanding anything herein to the contrary, this Stock Option shall be
subject to and governed by all the terms and conditions of the 1999 Plan.
4. TRANSFERABILITY.
This Agreement is personal to the Optionee and is not transferable by the
Optionee in any manner other than by will or by the laws of descent and
distribution. This Stock Option may be exercised during the Optionee's lifetime
only by the Optionee (or by the Optionee's guardian or personal representative
in the event of the Optionee's incapacity). The Optionee may elect to designate
a beneficiary by providing written notice of the name of such beneficiary to the
Company, and may revoke or change such designation at any time by filing written
notice of revocation or change with the Company; such beneficiary may exercise
the Optionee's Stock Option in the event of the Optionee's death to the extent
provided herein. If the Optionee does not designate a beneficiary, or if the
designated beneficiary predeceases the Optionee, the executor of the Optionee
may exercise this Stock Option to the extent provided herein in the event of the
Optionee's death.
5. ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
The shares of stock covered by this Stock Option are shares of Common Stock
of the Company. Subject to Section 6 hereof, if the shares of Common Stock as a
whole are increased, decreased, changed or converted into or exchanged for a
different number or kind of shares or securities of the Company or any successor
entity (or a parent or Subsidiary thereof), whether through merger or
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
combination of shares, exchange of shares, change in corporate structure or the
like, an appropriate and proportionate adjustment shall be made in the number
and kind of shares and in the per share exercise price of shares subject to any
unexercised portion of this Stock Option. In the event of any such adjustment in
this Stock Option, the Optionee thereafter shall have the right, subject to
Section 6, to purchase the number of shares under this Stock Option at the per
share price, as so adjusted, which the Optionee could purchase at the total
purchase price applicable to this Stock Option immediately prior to such
adjustment, all references herein to Common Stock shall be deemed to refer to
the security that is subject to acquisition upon exercise of this Stock Option
and all references to the Company shall be deemed to refer to the issuer of such
security. Adjustments under this Section 5 shall be determined by the Committee,
whose determination as to what adjustment shall be made, and the extent thereof,
shall be conclusive. No fractional shares of Common Stock shall be issued under
the 1999 Plan resulting from any such adjustment, but the Company in its
discretion may make a cash payment in lieu of fractional shares.
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6. EFFECT OF CORPORATE TRANSACTIONS. In the event of a Corporate
Transaction, this Option shall be subject to termination, assumption,
substitution, adjustment and/or limitation as provided in Section 3(c) of the
1999 Plan.
7. WITHHOLDING TAXES. The Optionee shall, not later than the date as of
which the exercise of this Stock Option becomes a taxable event for federal
income tax purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any federal, state and local taxes required by law to
be withheld on account of such taxable event. Subject to approval by the
Committee, the Optionee may elect to have the minimum tax withholding obligation
satisfied, in whole or in part, by authorizing the Company to withhold from
shares of Common Stock to be issued or transferring to the Company, a number of
shares of Common Stock with an aggregate Fair Market Value that would satisfy
the withholding amount due. The Optionee acknowledges and agrees that the
Company or any Subsidiary of the Company has the right to deduct from payments
of any kind otherwise due to the Optionee, or from the Option Shares to be
issued in respect of an exercise of this Stock Option, any federal, state or
local taxes of any kind required by law to be withheld with respect to the
issuance of Option Shares to the Optionee.
8. COMPANY'S RIGHT OF FIRST REFUSAL.
(a) EXERCISE OF RIGHT. If the Optionee desires to transfer all or any
part of the Issued Shares, or any other shares of Common Stock owned by the
Optionee, to any person other than the Company (an "Offeror"), the Optionee
shall: (i) obtain in writing an irrevocable and unconditional bona fide offer
(the "Offer") for the purchase thereof from the Offeror; and (ii) give written
notice (the "Option Notice") to the Company setting forth the Optionee's desire
to transfer such shares, which Option Notice shall be accompanied by a photocopy
of the Offer and shall set forth the name and address of the Offeror and the
price and terms of the Offer. Upon receipt of the Option Notice, the Company
shall have an assignable option to purchase any or all of such Issued Shares
(the "Company Option Shares") specified in the Option Notice, such option to be
exercisable by giving, within 30 days after receipt of the Option Notice, a
written counternotice to the Optionee. If the Company elects to purchase any or
all of such Company Option Shares, it shall be obligated to purchase, and the
Optionee shall be obligated to sell to the Company, such Company Option Shares
at the price and terms indicated in the Offer within 30 days from the date of
delivery by the Company of such counternotice.
(b) SALE OF COMPANY OPTION SHARES TO OFFEROR. The Optionee may, for
60 days after the expiration of the 30-day option period as set forth in Section
8(a), sell to the Offeror, pursuant to the terms of the Offer, any or all of
such Company Option Shares not purchased or agreed to be purchased by the
Company or its assignee. If any or all of such Company Option Shares are not
sold pursuant to an Offer within the time permitted above, the unsold Company
Option Shares shall remain subject to the terms of this Section 8.
(c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. If there shall be
any change in the Common Stock of the Company through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, combination or
exchange of shares, or the like, the restrictions contained in this Section 9
shall apply with equal force to additional and/or substitute
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securities, if any, received by the Optionee in exchange for, or by virtue of
his or her ownership of, Issued Shares.
(d) FAILURE TO DELIVER OPTION SHARES. If the Optionee fails or
refuses to deliver on a timely basis duly endorsed certificates representing the
Company Option Shares to be sold to the Company or its assignee pursuant to this
Section 8, the Company shall have the right to deposit the purchase price for
such Company Option Shares in a special account with any bank or trust company,
giving notice of such deposit to the Optionee, whereupon such Company Option
Shares shall be deemed to have been purchased by the Company. All such monies
shall be held by the bank or trust company for the benefit of the Optionee. All
monies deposited with the bank or trust company but remaining unclaimed for two
years after the date of deposit shall be repaid by the bank or trust company to
the Company on demand, and the Optionee shall thereafter look only to the
Company for payment. The Company may place a legend on any certificate for
Issued Shares delivered to the Optionee reflecting the restrictions on transfer
provided in this Section 8.
(e) EXPIRATION OF COMPANY'S RIGHT OF FIRST REFUSAL. The first refusal
rights of the Company set forth above shall remain in effect until the closing
of an Initial Public Offering or such other event as a result of or following
which the Common Stock shall be publicly held.
9. LOCKUP PROVISION.
The Optionee agrees, if requested by the Company and any underwriter
engaged by the Company, not to sell or otherwise transfer or dispose of any
securities of the Company (including, without limitation pursuant to Rule 144
under the Act) held by him or her for such period following the effective date
of any registration statement of the Company filed under the Act as the Company
or such underwriter shall specify reasonably and in good faith, not to exceed
180 days in the case of the Company's Initial Public Offering or 90 days in the
case of any other public offering.
10. MISCELLANEOUS PROVISIONS.
(a) EMPLOYMENT. This Option does not confer upon the Optionee any
rights with respect to employment or continuation of employment or the Service
Relationship with the Company, nor shall it interfere with any right of the
Company to terminate such employment or Service Relationship at anytime.
(b) EQUITABLE RELIEF. The parties hereto agree and declare that legal
remedies may be inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
(c) RELEASE. In consideration for the issuance of this Stock Option,
the Optionee hereby releases and forever discharges the Company, its employees,
directors and stockholders and their representatives and agents, from any and
all claims, demands, actions, agreements and promises whatsoever of every name,
nature and description, both in law and in equity, for shares of Common Stock or
options to purchase such shares or any other equity
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securities of the Company other than the shares of Common Stock underlying this
Stock Option. For purposes of this Section 10, the term "Company" shall be
deemed to include its Subsidiaries.
(d) CHANGE AND MODIFICATIONS. This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Optionee.
(e) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (or the state of
incorporation of any successor corporation) without regard to conflict of law
principles.
(f) HEADINGS. The headings are intended only for convenience in
finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
(g) SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(h) NOTICES. All notices, requests, consents and other communications
shall be in writing and be deemed given when delivered personally, by telex or
facsimile transmission or when received if mailed by first class registered or
certified mail, postage prepaid. Notices to the Company or the Optionee shall be
addressed as set forth underneath their signatures below, or to such other
address or addresses as may have been furnished by such party in writing to the
other.
(i) BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their respective
successors, permitted assigns, and legal representatives. The Company has the
right to assign this Agreement, and such assignee shall become entitled to all
the rights of the Company hereunder to the extent of such assignment.
(j) COUNTERPARTS. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
[SIGNATURE PAGE FOLLOWS]
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
Servicesoft Technologies, Inc.
By: ______________________________________
Name:
Title:
Address:
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
OPTIONEE:
__________________________________________
Name:
Optionee's Address:
__________________________________________
__________________________________________
__________________________________________
DESIGNATED BENEFICIARY:
__________________________________________
Name:
Beneficiary's Address:
__________________________________________
__________________________________________
__________________________________________
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APPENDIX A
STOCK OPTION EXERCISE NOTICE
Servicesoft Technologies, Inc.
Attention: Chief Financial Xxxxxxx
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Pursuant to the terms of my Incentive Stock Option Agreement dated [ ] (the
"Agreement") under the Servicesoft Technologies, Inc. 1999 Stock Option and
Grant Plan, I, ____________ [Insert name], hereby [Circle One] partially/fully
exercise such option by including herein payment in the amount of $_______
representing the purchase price for ______________[Fill in number of Option
Shares] _____ option shares. I have chosen the following form(s) of payment:
[ ] 1. Cash;
[ ] 2. Certified or bank check payable to Servicesoft
Technologies, Inc. or
[ ] 3. Other (as described in the Agreement (please describe)
___________________________________
Sincerely yours,
_____________________________________
Name:
Address:
_____________________________________
_____________________________________
_____________________________________
