FOLDERA, INC.
2005
STOCK OPTION PLAN, AS AMENDED
Unless
otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings in this Option Agreement.
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I.
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NOTICE
OF STOCK OPTION GRANT
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Name
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Address
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The
undersigned Optionee has been granted an Option to purchase Common Stock of
the
Company, subject to the terms and conditions of the Plan and this Option
Agreement, as follows:
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Date
of Grant:
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__________________
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Exercise
Price per Share:
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$_________
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Total
Number of Shares Granted:
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__________
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Total
Exercise Price:
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$_____________
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Type
of Option:
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Incentive Stock Option
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Nonstatutory Stock Option
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Term/Expiration
Date:
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____________________
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Vesting
Schedule:
This
Option shall be vested, in whole or in part, according to the following
schedule:
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Date
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Option
Shares
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_____________
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__________
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In
addition, the Option may be subject to vesting acceleration upon certain events
as provided in Section 2(c) of the Option Agreement.
Vesting
pursuant to this Vesting Schedule is subject to Optionee providing services
to
the Company as a Service Provider continuously from the Grant Date to each
such
vesting date.
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AGREEMENT
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1. Grant
of Option.
The
Plan Administrator of the Company hereby grants to the person (the "Optionee")
named in the Notice of Stock Option Grant (the “Grant Notice”), an option (the
"Option") to purchase the number of Shares set forth in the Notice of Grant,
at
the exercise price per Share set forth in the Notice of Grant (the "Exercise
Price"), and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 13(c) of the Plan, in
the
event of a conflict between the terms and conditions of the Plan and this Option
Agreement, the terms and conditions of the Plan shall prevail.
If
designated in the Notice of Grant as an Incentive Stock Option ("ISO"), this
Option is intended to qualify as an Incentive Stock Option as defined in Section
422 of the Code. Nevertheless, to the extent that it exceeds the $100,000 rule
of Code Section 422(d), this Option shall be treated as a Nonstatutory Stock
Option ("NSO").
2. Exercise
of Option.
(a) Right
to Exercise.
This
Option shall be exercisable during its term in accordance with the Vesting
Schedule set out in the Notice of Grant and with the applicable provisions
of
the Plan and this Option Agreement.
(b)
Method
of Exercise.
This
Option shall be exercisable by delivery of an exercise
notice in the form attached as Exhibit A (the "Exercise Notice") which shall
state the election to exercise the Option, the number of Shares with respect
to
which the Option is being exercised, and such other representations and
agreements as may be required by the Company. The Exercise Notice shall be
accompanied by payment of the aggregate Exercise Price as to all Exercised
Shares. This Option shall be deemed to be exercised upon receipt by the Company
of such fully executed Exercise Notice accompanied by the aggregate Exercise
Price.
No
Shares
shall be issued pursuant to the exercise of an Option unless such issuance
and
such exercise comply with Applicable laws. Assuming such compliance, for income
tax purposes the Shares shall be considered transferred to the Optionee on
the
date on which the Option is exercised with respect to such Shares.
(c) Vesting
Acceleration. Upon the consummation of a Change in Control (as defined in
Section 10 below), or the involuntary termination of Optionee as a Service
Provider (other than for Cause, as defined in Section 10 below), all unvested
options, if any, of Service Provider shall become vested and
exercisable.
3. Term.
Optionee may not exercise the Option before the commencement of its term or
after its term expires. During the term of the Option, Optionee may only
exercise the Option to the extent vested. The term of the Option commences
on
the Date of ▇▇▇▇▇ and expires upon the earliest
of the
following:
(a) With
respect to the unvested portion of the Option, upon voluntary termination of
Optionee’s continuous service to the Company as a Service Provider;
(b) With
respect to the vested portion of the Option, twenty-four (24) months after
the
termination of Optionee’s continuous service to the Company as a Service
Provider for any reason other than your Disability or death;
(c) With
respect to the vested portion of the Option, twenty-four (24) months after
the
termination of Optionee’s continuous service to the Company as a Service
Provider due to your Disability or death;
(d) Immediately
prior to the close of certain corporate transactions, pursuant to
Section 11(c) of the Plan;
(e) The
Term/Expiration Date provided in the Notice of ▇▇▇▇▇; or
(f) The
day
before the tenth (10th) anniversary of the Date of ▇▇▇▇▇.
4. Optionee's
Representations.
In the
event the Shares have not been registered under the Securities Act of 1933,
as
amended, at the time this Option is exercised, the Optionee shall, if required
by the Company, concurrently with the exercise of all or any portion of this
Option, deliver to the Company an Investment Representation Statement in a
form
satisfactory to the Company.
5. Lock-Up
Period.
Optionee hereby agrees that, if so requested by the Company or any
representative of the underwriters (the "Managing Underwriter") in connection
with any registration of the offering of any securities of the Company under
the
Securities Act, Optionee shall not sell or otherwise transfer any Shares or
other securities of the Company during the 180-day period (or such other period
as may be requested in writing by the Managing Underwriter and agreed to in
writing by the Company) (the "Market Standoff Period") following the effective
date of a registration statement of the Company filed under the Securities
Act.
Such restriction shall apply only to the first registration statement of the
Company to become effective under the Securities Act that includes securities
to
be sold on behalf of the Company to the public in an underwritten public
offering under the Securities Act. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing restrictions
until the end of such Market Standoff Period.
6. Method
of Payment.
Payment
of the aggregate Exercise Price shall be by any of the following, or a
combination thereof, at the election of the Optionee:
(a) cash
or
check;
(b) consideration
received by the Company under a cashless exercise program adopted by the Company
in connection with the Plan;
(c) surrender
of other Shares which, (i) in the case of Shares acquired upon exercise of
an
option, have been owned by the Optionee for such period of time on the date
of
surrender that will avoid a compensation expense for financial accounting
purposes, and (ii) have a Fair Market Value on the date of surrender equal
to
the aggregate Exercise Price of the Exercised Shares; or
(d)
at
the
Company’s discretion, cancellation of a number of Shares subject to the Option
which have vested and are being exercised equal to the largest number of
whole
Shares that has a Fair Market Value that does not exceed the aggregate Exercise
Price. With respect to any remaining balance of the aggregate Exercise
Price, the Company shall accept a cash payment from the Optionee. The Shares
used to pay the aggregate Exercise Price under this provision will be considered
to have resulted from the exercise of the Option, and accordingly, the Option
will not again be exercisable with respect to such Shares.
7. Restrictions
on Exercise.
This
Option may not be exercised until such time as the Plan has been approved by
the
shareholders of the Company, or if the issuance of such Shares upon such
exercise or the method of payment of consideration for such shares would
constitute a violation of any Applicable Law.
8. Non-Transferability
of Option.
This
Option may not be transferred in any manner otherwise than by will or by the
laws of descent or distribution and may be exercised during the lifetime of
Optionee only by Optionee. The terms of the Plan and this Option Agreement
shall
be binding upon the executors, administrators, heirs, successors and assigns
of
the Optionee.
9. Tax
Obligations.
(a) Tax
Consequences.
The
Optionee acknowledges that Optionee is solely responsible for the tax
consequences of receiving the grant of this Option, exercising this Option
and
the transfer or disposal of any Shares received upon the exercise of this
Option. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION
OR DISPOSING OF THE SHARES.
(b) Withholding
Taxes.
Optionee agrees to make appropriate arrangements with the Company (or the Parent
or Subsidiary employing or retaining Optionee) for the satisfaction of all
Federal, state, local and foreign income and employment tax withholding
requirements applicable to the Option exercise. Optionee acknowledges and agrees
that the Company may refuse to honor the exercise and refuse to deliver Shares
if such withholding amounts are not delivered at the time of
exercise.
(c)
Share
Withholding.
Unless
otherwise agreed by the Optionee and the Company in writing, the Company, in
compliance with any applicable legal conditions or restrictions, may, in its
sole discretion, withhold from fully vested Shares purchased through the
exercise of the Option, otherwise deliverable to Optionee through the exercise
of the Option, a whole number of Shares having a Fair Market Value, as
determined by the Company as of the date of exercise, not in excess of the
amount of tax required to be withheld by law (or such lower amount as may be
necessary to avoid adverse financial accounting treatment). To the extent that
the withholding of the Shares is less than the tax withholding amount, the
Optionee agrees to pay the remainder of the tax withholding in cash or check
or
to have such amount withheld by the Company from the Optionee’s compensation
through payroll and any other amounts payable to Optionee.
(d)
Notice
of Disqualifying Disposition of ISO Shares.
If the
Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the
date one year after the date of exercise, the Optionee shall immediately notify
the Company in writing of such disposition. Optionee agrees that Optionee may
be
subject to income tax withholding by the Company on the compensation income
recognized by the Optionee.
10. Definitions.
(a) “Cause”
shall,
with respect to the Optionee, have the equivalent meaning or the same meaning
as
“cause,” “for cause” or any equivalent term set forth in any employment,
consulting, or other agreement for the performance of services between the
Optionee and the Company or any Subsidiary or, in the absence of any such
definition in such agreement, such term shall mean (i) the Optionee’s (1)
willful failure to perform his material duties as an employee of the Company
or
a material breach of a material term of this Agreement and (2) failure to
“cure”
any such breach or default within thirty (30) days after receipt of written
notice from the Company specifying such breach or default and the specific
steps
necessary to cure such breach or default; (ii) the commission of an act of
fraud, embezzlement or material dishonesty that results in substantial personal
enrichment to the Optionee; (iii) the Optionee’s conviction of, or plea of
nolo
contendere
to a
felony; (iv) the Optionee’s gross negligence or breach of fiduciary duty that
results in material harm to the Company; (v) the material breach of a material
term of the Optionee’s confidential information and invention assignment,
non-solicitation, non-disclosure and/or other similar agreement with the
Company
or any Subsidiary or (vi) the commission of an act which constitutes competition
with the Company or any of its Subsidiaries.
(b) “Change
in Control”
means
and shall be deemed to have occurred on the earliest of the following
dates:
(i)
the
date
on which any “person” (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than ▇▇▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or Vision
Opportunity Master Fund, obtains “beneficial ownership” (as defined in
Rule 13d-3 of the Exchange Act) or a pecuniary interest in fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding securities (“Voting
Stock”);
(ii)
the
consummation of a merger, consolidation, reorganization or similar transaction
other than a transaction: (1) in which substantially all of the holders of
Company’s Voting Stock hold or receive directly or indirectly fifty
percent (50%) or more of the voting stock of the resulting entity or a
parent company thereof, in substantially the same proportions as their ownership
of the Company immediately prior to the transaction; or (2) in which the
holders of Company’s capital stock immediately before such transaction will,
immediately after such transaction, hold as a group on a fully diluted basis
the
ability to elect at least a majority of the directors of the surviving
corporation (or a parent company);
(iii)
there
is
consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, other than a sale, lease, license or other disposition of all
or
substantially all of the consolidated assets of the Company and its Subsidiaries
to an entity, fifty percent (50%) or more of the combined voting power of
the voting securities of which are owned by shareholders of the Company in
substantially the same proportions as their ownership of the Company immediately
prior to such sale, lease, license or other disposition; or
(iv)
individuals
who, on the date this Plan is adopted by the Board, are Directors (the
“Incumbent
Board”)
cease
for any reason to constitute at least a majority of the Directors; provided,
however, that if the appointment or election (or nomination for election) of
any
new Director was approved or recommended by a majority vote of the members
of
the Incumbent Board then still in office, such new member shall, for purposes
of
this Plan, be considered as a member of the Incumbent Board.
For
purposes of determining whether a Change in Control has occurred, a transaction
includes all transactions in a series of related transactions, and terms used
in
this definition but not defined are used as defined in the Plan. The term Change
in Control shall not include a sale of assets, merger or other transaction
effected exclusively for the purpose of changing the domicile of the
Company.
(c)“Good
Reason”
shall,
with respect to any Optionee, have the equivalent meaning (or the same meaning
as “good reason,” “constructive termination,” “for good reason” or any
equivalent term) set forth in any employment, consulting or other agreement
for
the performance of services between the Optionee and the Company or any
Subsidiary or, in the absence of any such definition in such agreement, such
term shall mean (i) the assignment to the Optionee of any duties
inconsistent in any material respect with the Optionee’s position (including
status, offices, titles and reporting requirements), authority, duties or
responsibilities as assigned by the Company or any Subsidiary, or any other
action by the Company (or any Subsidiary) which results in a material diminution
in such duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company (or any Subsidiary) promptly after receipt of notice
thereof given by the Optionee. For purposes of clarification, if, after a Change
in Control, the Optionee does not have the same title and position with the
successor entity, or, if applicable, its ultimate parent, then the Optionee
will
have suffered a material diminution of Optionee’s duties which will qualify as
Good Reason pursuant to this paragraph; (ii) any failure by the Company (or
any Subsidiary) to comply with its material obligations to the Optionee as
provided in any written agreement between the Optionee and the Company, other
than an isolated, insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company (or any Subsidiary) promptly after
receipt of notice thereof given by the Optionee; (iii) the Company’s (or
any Subsidiary’s) requiring the Optionee to be based at any office or location
more than thirty-five (35) miles from the location of employment as of the
date
immediately prior to the Change in Control, except for travel reasonably
required in the performance of the Optionee’s responsibilities; or (iv) any
reduction in the Optionee’s base salary.
11. Entire
Agreement, Governing Law.
The
Plan is incorporated herein by reference. The Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except
by
means of a writing signed by the Company and Optionee. This Option Agreement
is
governed by the internal substantive laws but not the choice of law rules of
California.
12. No
Guarantee of Continued Service.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUNG AS A SERVICE PROVIDER AT
THE
WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING
SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR
THE COMPANY’S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER
AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee
acknowledges receipt of a copy of the Plan and represents that he or she is
familiar with the terms and provisions thereof, and hereby accepts this Option
subject to all of the terms and provisions thereof. Optionee has reviewed the
Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option and fully understands all
provisions of the Option. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator
upon
any questions arising under the Plan or this Option. Optionee further agrees
to
notify the Company upon any change in the residence address indicated
below.
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Signature
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By
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Print
Name
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Title
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Residence
Address
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