ALTRIS SOFTWARE, INC.
AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between Altris Software, Inc., a
California corporation (the "Company"), and the person named below as Employee.
WHEREAS, Employee is an employee of the Company and/or one or more of
its subsidiaries; and
WHEREAS, pursuant to the Company's Amended and Restated 1996 Stock
Incentive Plan (the "Plan"), the committee of the Board of Directors of the
Company administering the Plan (the "Committee") has approved the grant to
Employee of an option to purchase shares of the common stock, no par value, of
the Company (the "Common Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS. The Company
hereby grants to Employee, and Employee hereby accepts, as of the Date of Grant,
an option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 o'clock p.m., California time, on the Expiration Date
indicated below and shall be subject to all of the terms and conditions set
forth in this Agreement (the "Option"). On each anniversary of the Date of
Grant, the Option shall become exercisable to purchase, and shall vest with
respect to, that number of Option Shares (rounded to the nearest whole share)
equal to the total number of Option Shares multiplied by the Annual Vesting Rate
indicated below.
Employee:
---------------------
Date of Grant:
-----------
Number of shares purchasable:
-----------
Exercise Price per share:
-----------
Expiration Date:
-----------
Annual Vesting Rate: %
-----------
The Option is intended to qualify as an incentive stock option (an "Incentive
Stock Option") under Section 422 of the Internal Revenue Code of 1986, as
amended (the "Internal Revenue Code"), and consequently:
(a) the Expiration Date shall not be more than 10 years after
the Date of Grant and the Exercise Price per share shall not be less than
the Fair Market Value (as defined in the Plan) per share on the Date of
Grant; PROVIDED, HOWEVER, that if, on the Date of Grant, Employee owns
(after application of the family and other attribution rules of Section
424(d) of the Internal Revenue Code) more than 10% of the total combined
voting power of all classes of stock of the Company or of its parent or
subsidiary corporations, then the Expiration Date shall not be more than
five years after the Date of Grant and the Exercise Price per share shall
not be less than 110% of the Fair Market Value per share on the Date of
Grant; and
(b) the aggregate Fair Market Value (determined as of the date
such options are granted) of the shares of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by
Employee during any calendar year (under the Plan and all other stock
option plans of the Company and its parent and subsidiary corporations)
shall not exceed $100,000.
2. ACCELERATION AND TERMINATION OF OPTION.
(a) Termination of Employment.
(i) TERMINATION WITHIN ONE YEAR AFTER CHANGE OF CONTROL. In the
event that Employee shall cease to be an employee of the Company or any of
its subsidiaries (such event shall be referred to herein as the
"Termination" of Employee's "Employment") for any reason, or for no reason,
within one year after a Change of Control (as hereinafter defined), then
(A) the portion of the Option that has not vested on or prior to the date
of such Termination of Employment shall fully vest on such date and (B) the
Option shall terminate upon the earlier of the Expiration Date or the first
anniversary of the date of such Termination of Employment. "Change of
Control" shall mean the first to occur of the following events:
(X) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as
such capitalized terms are defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such person or entity, shall have become the
Beneficial Owner (as defined in Rule 13d-3 promulgated under the
Exchange Act) of voting securities of the Company representing
25% or more of the voting power of the Company (a "25%
Stockholder"); PROVIDED, HOWEVER, that the terms "person" and
"entity," as used in this clause (X), shall not include (1) the
Company or any of its subsidiaries, (2) any employee benefit plan
of the Company or any of its subsidiaries, (3) any entity holding
voting securities of the Company for or pursuant to
2
the terms of any such plan, (4) any person or entity if the
transaction that resulted in such person or entity becoming a 25%
Stockholder was approved in advance by the Board or (5) any person or
entity who was a 25% Stockholder on the date of adoption of the Plan
by the Board; or
(Y) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the
sole purpose of which is to change the Company's domicile solely
within the United States) the consummation of which results in
the outstanding securities of any class then subject to the
Option being exchanged for or converted into cash, property
and/or a different kind of securities.
(ii) RETIREMENT. If Employee's Employment is Terminated by
reason of Employee's retirement in accordance with the Company's
then-current retirement policy ("Retirement"), and a Change of Control
shall not have occurred within one year prior thereto, then (A) the portion
of the Option that has not vested on or prior to the date of such
Retirement shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate 90 days after the date of such
Termination of Employment.
(iii) DEATH OR PERMANENT DISABILITY. If Employee's Employment
is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Employee, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option
that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of not
less than 12 months. Employee shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished
to the Board in such form and manner, and at such times, as the Board may
require. Any determination by the Board that Employee does or does not
have a Permanent Disability shall be final and binding upon the Company and
Employee.
(iv) OTHER TERMINATION. If Employee's Employment is Terminated
for no reason, or for any reason other than Retirement, death or Permanent
Disability, and a Change of Control shall not have occurred within one year
prior thereto, then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall terminate on such
date and (B) the remaining vested portion of the Option shall terminate 30
days after the date of such Termination of Employment.
(b) DEATH FOLLOWING TERMINATION OF EMPLOYMENT. Notwithstanding
anything to the contrary in this Agreement, if Employee shall die at any time
after the Termination of his or her Employment and prior to the Expiration Date,
then (i) the portion of the Option that has not
3
vested on or prior to the date of such death shall terminate on such date and
(ii) the remaining vested portion of the Option shall terminate on the earlier
of the Expiration Date or the first anniversary of the date of such death.
(c) OTHER EVENTS CAUSING ACCELERATION OF OPTION. The Committee, in
its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) OTHER EVENTS CAUSING TERMINATION OF OPTION. Notwithstanding
anything to the contrary in this Agreement, the Option shall terminate upon the
consummation of any of the following events, or, if later, the thirtieth day
following the first date upon which such event shall have been approved by both
the Board and the stockholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets of
the Company, unless the terms of such sale shall provide otherwise.
3. ADJUSTMENTS. Subject to the relevant provisions of the Plan, in
the event that the outstanding securities of the class then subject to the
Option are increased, decreased or exchanged for or converted into cash,
property and/or a different number or kind of securities, or cash, property
and/or securities are distributed in respect of such outstanding securities, in
either case as a result of a reorganization, merger, consolidation,
recapitalization, reclassification, dividend (other than a regular, quarterly
cash dividend) or other distribution, stock split, reverse stock split or the
like, or in the event that substantially all of the property and assets of the
Company are sold, then, unless such event shall cause the Option to terminate
pursuant to Section 2(d) hereof, the Committee shall make appropriate and
proportionate adjustments in the number and type of shares or other securities
or cash or other property that may thereafter be acquired upon the exercise of
the Option; PROVIDED, HOWEVER, that any such adjustments in the Option shall be
made without changing the aggregate Exercise Price of the then unexercised
portion of the Option; PROVIDED, FURTHER, that no adjustment shall be made to
the number of Option Shares that may be acquired pursuant to the Option or to
the extent such adjustment would result in the Option being treated as other
than an Incentive Stock Option or to the extent the Committee determines that
such adjustment would result in the disallowance of a federal income tax
deduction for compensation attributable to the Option by causing such
compensation to be other than Performance-Based Compensation (as defined in
Section 162(m) of the Internal Revenue Code and the regulations related
thereto).
4. EXERCISE.
(a) The Option shall be exercisable during Employee's lifetime only
by Employee or by his or her guardian or legal representative, and after
Employee's death only by the person or entity entitled to do so under Employee's
last will and testament or applicable intestate law. The Option may only be
exercised by the delivery to the Company of a written notice of such exercise,
which notice shall specify the number of Option Shares to be purchased (the
"Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"),
4
together with payment in full of such aggregate Exercise Price in cash or by
check payable to the Company; PROVIDED, HOWEVER, that payment of such aggregate
Exercise Price may instead be made, in whole or in part, by the delivery to the
Company of a certificate or certificates representing shares of Common Stock,
duly endorsed or accompanied by a duly executed stock powers, which delivery
effectively transfers to the Company good and valid title to such shares, free
and clear of any pledge, commitment, lien, claim or other encumbrance (such
shares to be valued on the basis of the aggregate Fair Market Value (as defined
in the Plan) thereof on the date of such exercise), provided that the Company is
not then prohibited from purchasing or acquiring such shares of Common Stock.
5. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Employee shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company.
6. NOTICES. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer, or to Employee at the address set forth beneath his or her
signature on the signature page hereto, or at such other addresses as they may
designate by written notice in the manner aforesaid.
7. STOCK EXCHANGE REQUIREMENTS; APPLICABLE LAWS. Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (a) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (b) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company. Employee hereby authorizes the
Company to place an appropriate legend on any certificate representing the
Option Shares or to take such other action as the Company may deem appropriate
to allow the Company to comply with applicable laws and regulation for the
issuance and transfer of any Option Shares, including, but not limited to, those
applicable to incentive stock options and so-called "disqualifying dispositions"
thereof.
8. NONTRANSFERABILITY. Neither the Option nor any interest therein
may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution
5
9. PLAN. The Option is granted pursuant to the Plan, as in effect
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; PROVIDED, HOWEVER, that no
such amendment shall deprive Employee, without his or her consent, of the Option
or of any of Employee's rights under this Agreement. The interpretation and
construction by the Committee of the Plan, this Agreement, the Option and such
rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Employee. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Employee or any other person or entity then entitled to exercise the Option.
10. STOCKHOLDER RIGHTS. No person or entity shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. EMPLOYMENT RIGHTS. No provision of this Agreement or of the
Option granted hereunder shall (a) confer upon Employee any right to continue in
the employ of the Company or any of its subsidiaries, (b) affect the right of
the Company and each of its subsidiaries to terminate the employment of
Employee, with or without cause, or (c) confer upon Employee any right to
participate in any employee welfare or benefit plan or other program of the
Company or any of its subsidiaries other than the Plan.
6
12. GOVERNING LAW. This Agreement and the Option granted hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the Date of Grant.
ALTRIS SOFTWARE, INC.
By
--------------------------------
Title:
EMPLOYEE
----------------------------------
Signature
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇, ▇▇▇▇▇ and Zip Code
----------------------------------
Social Security Number
7
ALTRIS SOFTWARE, INC.
AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between Altris Software, Inc., a
California corporation (the "Company"), and the person named below as
Participant.
WHEREAS, Participant is an employee or consultant of the Company
and/or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's Amended and Restated 1996 Stock
Incentive Plan (the "Plan"), the committee of the Board of Directors of the
Company administering the Plan (the "Committee") has approved the grant to
Participant of an option to purchase shares of the common stock of the Company
(the "Common Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS. The Company
hereby grants to Participant, and Participant hereby accepts, as of the Date of
Grant, an option to purchase the number of shares of Common Stock indicated
below (the "Option Shares") at the Exercise Price per share indicated below,
which option shall expire at 5:00 o'clock p.m., California time, on the
Expiration Date indicated below and shall be subject to all of the terms and
conditions set forth in this Agreement (the "Option"). On each anniversary of
the Date of Grant, the Option shall become exercisable to purchase, and shall
vest with respect to, that number of Option Shares (rounded to the nearest whole
share) equal to the total number of Option Shares multiplied by the Annual
Vesting Rate indicated below.
Participant:
---------------------
Date of Grant:
-------
Number of shares purchasable:
-------
Exercise Price per share:
-------
Expiration Date:
-------
Annual Vesting Rate: %
-------
The Option is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code (an "Incentive Stock Option").
2. ACCELERATION AND TERMINATION OF OPTION.
(a) Termination of Employment.
(i) TERMINATION WITHIN ONE YEAR AFTER CHANGE OF CONTROL. In the
event that Participant shall cease to be an employee or consultant of the
Company or any of its subsidiaries (such event shall be referred to herein
as the "Termination" of Participant's "Employment") for any reason, or for
no reason, within one year after a Change of Control (as hereinafter
defined), then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall fully vest on
such date and (B) the Option shall terminate upon the earlier of the
Expiration Date or the first anniversary of the date of such Termination of
Employment. "Change of Control" shall mean the first to occur of the
following events:
(X) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 25% or more of the voting power
of the Company (a "25% Stockholder"), provided, however, that the
terms "person" and "entity," as used in this clause (X), shall not
include (1) the Company or any of its subsidiaries, (2) any employee
benefit plan of the Company or any of its subsidiaries, (3) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan, (4) any person or entity if the transaction that
resulted in such person or entity becoming a 25% Stockholder was
approved in advance by the Board or (5) any person or entity who was a
25% Stockholder on the date of adoption of the Plan by the Board; or
(Y) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United
States) the consummation of which results in the outstanding
securities of any class then subject to the Option being exchanged for
or converted into cash, property and/or a different kind of
securities.
(ii) RETIREMENT. If Participant's Employment is Terminated by
reason of Participant's retirement in accordance with the Company's
then-current retirement policy ("Retirement"), and a Change of Control
shall not have occurred within one year prior thereto, then (A) the portion
of the Option that has not vested on or prior to the date of such
Retirement shall terminate on such date and (B) the remaining vested
2
portion of the Option shall terminate 90 days after the date of such
Termination of Employment.
(iii) DEATH OR PERMANENT DISABILITY. If Participant's
Employment is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Participant, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option
that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of not
less than 12 months. Participant shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished
to the Board in such form and manner, and at such times, as the Board may
require. Any determination by the Board that Participant does or does not
have a Permanent Disability shall be final and binding upon the Company and
Participant.
(iv) OTHER TERMINATION. If Participant's Employment is
Terminated for no reason, or for any reason other than Retirement, death or
Permanent Disability, and a Change of Control shall not have occurred
within one year prior thereto, then (A) the portion of the Option that has
not vested on or prior to the date of such Termination of Employment shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate 30 days after the date of such Termination of Employment.
(b) DEATH FOLLOWING TERMINATION OF EMPLOYMENT. Notwithstanding
anything to the contrary in this Agreement, if Participant shall die at any time
after the Termination of his or her Employment and prior to the Expiration Date,
then (i) the portion of the Option that has not vested on or prior to the date
of such death shall terminate on such date and (ii) the remaining vested portion
of the Option shall terminate on the earlier of the Expiration Date or the first
anniversary of the date of such death.
(c) OTHER EVENTS CAUSING ACCELERATION OF OPTION. The Committee, in
its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) OTHER EVENTS CAUSING TERMINATION OF OPTION. Notwithstanding
anything to the contrary in this Agreement, the Option shall terminate upon the
consummation of any of the following events, or, if later, the thirtieth day
following the first date upon which such event shall have been approved by both
the Board and the stockholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets of
the Company, unless the terms of such sale shall provide otherwise.
3
3. ADJUSTMENTS. Subject to the relevant provisions of the Plan, in
the event that the outstanding securities of the class then subject to the
Option are increased, decreased or exchanged for or converted into cash,
property and/or a different number or kind of securities, or cash, property
and/or securities are distributed in respect of such outstanding securities, in
either case as a result of a reorganization, merger, consolidation,
recapitalization, reclassification, dividend (other than a regular, quarterly
cash dividend) or other distribution, stock split, reverse stock split or the
like, or in the event that substantially all of the property and assets of the
Company are sold, then, unless such event shall cause the Option to terminate
pursuant to Section 2(d) hereof, the Committee shall make appropriate and
proportionate adjustments in the number and type of shares or other securities
or cash or other property that may thereafter be acquired upon the exercise of
the Option; PROVIDED, HOWEVER, that any such adjustments in the Option shall be
made without changing the aggregate Exercise Price of the then unexercised
portion of the Option; PROVIDED, FURTHER, that no adjustment shall be made to
the number of Option Shares that may be acquired pursuant to the Option to the
extent the Committee determines that such adjustment would result in the
disallowance of an otherwise allowable federal income tax deduction for
compensation attributable to the Option by causing such compensation to be other
than Performance-Based Compensation (as defined in Section 162(m) of the
Internal Revenue Code and the regulations related thereto).
4. EXERCISE. The Option shall be exercisable during Participant's
lifetime only by Participant or by his or her guardian or legal representative,
and after Participant's death only by the person or entity entitled to do so
under Participant's last will and testament or applicable intestate law. The
Option may only be exercised by the delivery to the Company of a written notice
of such exercise, which notice shall specify the number of Option Shares to be
purchased (the "Purchased Shares") and the aggregate Exercise Price for such
shares (the "Exercise Notice"), together with payment in full of such aggregate
Exercise Price in cash or by check payable to the Company; PROVIDED, HOWEVER,
that payment of such aggregate Exercise Price may instead be made, in whole or
in part, by the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by a duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined in the Plan) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock.
5. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Participant shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company.
6. NOTICES. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
4
Attention: Chief Financial Officer, or to Participant at the address set forth
beneath his or her signature on the signature page hereto, or at such other
addresses as they may designate by written notice in the manner aforesaid.
7. STOCK EXCHANGE REQUIREMENTS; APPLICABLE LAWS. Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (a) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (b) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. NONTRANSFERABILITY. Neither the Option nor any interest therein
may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution
9. PLAN. The Option is granted pursuant to the Plan, as in effect
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; PROVIDED, HOWEVER, that no
such amendment shall deprive Participant, without his or her consent, of the
Option or of any of Participant's rights under this Agreement. The
interpretation and construction by the Committee of the Plan, this Agreement,
the Option and such rules and regulations as may be adopted by the Committee for
the purpose of administering the Plan shall be final and binding upon
Participant. Until the Option shall expire, terminate or be exercised in full,
the Company shall, upon written request therefor, send a copy of the Plan, in
its then-current form, to Participant or any other person or entity then
entitled to exercise the Option.
10. STOCKHOLDER RIGHTS. No person or entity shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. EMPLOYMENT OR CONTRACT RIGHTS. No provision of this Agreement or
of the Option granted hereunder shall (a) confer upon Participant any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (b) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Participant, with or without cause,
or (c) confer upon Participant any right to participate in any employee welfare
or benefit plan or other program of the Company or any of its subsidiaries other
than the Plan.
12. GOVERNING LAW. This Agreement and the Option granted hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
5
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Grant.
ALTRIS SOFTWARE, INC.
By
-----------------------------
Title:
PARTICIPANT
--------------------------------
Signature
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇, ▇▇▇▇▇ and Zip Code
--------------------------------
Social Security Number
6
ALTRIS SOFTWARE, INC.
AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") is made and entered into
as of the Date of Award indicated below by and between Altris Software, Inc., a
California corporation (the "Company"), and the person named below as
Participant.
WHEREAS, Participant is an employee or consultant of the Company
and/or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's Amended and Restated 1996 Stock
Incentive Plan (the "Plan"), the committee of the Board of Directors of the
Company administering the Plan (the "Committee") has approved the award to
Participant of the right to purchase shares of the common stock of the Company
(the "Common Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. AWARD; CERTAIN TERMS AND CONDITIONS. The Company hereby awards
to Participant, and Participant hereby accepts, as of the Date of Award, the
right to purchase the number of shares of Common Stock indicated below (the
"Restricted Shares") for the Cash Purchase Price per share indicated below
(which shall be either $0 or at least par value). THE AGGREGATE CASH PURCHASE
PRICE MUST BE PAID TO THE COMPANY ON OR PRIOR TO 5:00 O'CLOCK P.M. (LOCAL TIME
AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICE) UPON THE SIXTIETH DAY FOLLOWING THE
DATE OF AWARD. The Restricted Shares shall be subject to all of the terms and
conditions set forth in this Agreement, including the restrictions imposed
pursuant to Section 3 hereof; provided, however, that on each anniversary of the
Date of Award, such restrictions shall terminate with respect to that number of
Restricted Shares (rounded to the nearest whole share) equal to the total number
of Restricted Shares multiplied by the Annual Vesting Rate indicated below (the
termination of such restrictions with respect to any Restricted Share, for any
reason, shall be referred to herein as the "vesting" of such share).
Participant:
------------------------
Date of Award:
-------------------
Number of shares purchasable:
----------
Cash Purchase Price per share: $
--------
Annual Vesting Rate: %
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2. CONSIDERATION FOR SHARES; METHOD OF PAYMENT.
(a) The consideration for the issuance and sale of Restricted Shares
contemplated hereby may include, in addition to the Cash Purchase Price per
share indicated in Section 1 hereof, consideration in the form of past services
to the Company and/or one or more of its subsidiaries. If the Cash Purchase
Price per share is $0, then (i) the total consideration for the issuance and
sale of the Restricted Shares shall be equal to the aggregate par value thereof
on the Date of the Award and (ii) such consideration shall be deemed to have
been received by the Company, on or prior to the Date of Award, in the form of
past services.
(b) The aggregate Cash Purchase Price must be paid to the Company in
cash or by check payable to the Company. Upon payment to the Company in full of
the aggregate Cash Purchase Price as provided herein on or prior to 5:00 o'clock
p.m. (local time at the Company's principal executive office) on the sixtieth
day following the Date of Award, Participant shall be deemed to have purchased
the Restricted Shares effective as of the Date of Award.
3. RESTRICTIONS. Until a Restricted Share vests, it may not be
sold, assigned, conveyed, gifted, pledged, hypothecated, or otherwise
transferred in any manner.
4. ACCELERATION OF VESTING.
(a) Notwithstanding anything to the contrary in this Agreement, in
the event that Participant shall cease to be an employee or consultant of the
Company or any of its subsidiaries for any reason, or for no reason, within one
year after a Change of Control (as hereinafter defined), all then unvested
Restricted Shares shall vest upon the date of such event.
(b) "Change of Control" shall mean the first to occur of the
following events:
(i) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such capitalized
terms are defined in Rule 12b-2 promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) of such person or entity,
shall have become the Beneficial Owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of voting securities of the Company
representing 25% or more of the voting power of the Company (a "25%
Stockholder"), provided, however, that the terms "person" and "entity," as
used in this clause (i), shall not include (A) the Company or any of its
subsidiaries, (B) any employee benefit plan of the Company or any of its
subsidiaries, (C) any entity holding voting securities of the Company for
or pursuant to the terms of any such plan, (D) any person or entity if the
transaction that resulted in such person or entity becoming a 25%
Stockholder was approved in advance by the Board or (E) any person or
entity who was a 25% Stockholder on the date of adoption of the Plan by the
Board; or
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(ii) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose of
which is to change the Company's domicile solely within the United States)
the consummation of which results in the outstanding securities of any
class then comprising the Restricted Shares being exchanged for or
converted into cash, property and/or a different kind of securities.
(c) In addition, the Committee, in its sole discretion, may
accelerate the vesting of any or all of the Restricted Shares at any time.
5. REPURCHASE OF RESTRICTED SHARES. Notwithstanding anything to the
contrary in this Agreement, if Participant shall cease to be an employee or
independent sales representative of the Company or any of its subsidiaries for
any reason, or for no reason, then, unless the Committee shall determine
otherwise, the Company shall repurchase each then unvested Restricted Share at a
purchase price equal to the Cash Purchase Price per share.
6. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated to
withhold an amount on account of any federal, state or local tax imposed as a
result of the sale of the Restricted Shares to Participant pursuant to this
Agreement or the termination of the restrictions imposed upon the Restricted
Shares hereunder, including, without limitation, any federal, state or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the date upon which the Company becomes so obligated shall be referred to
herein as the "Withholding Date"), then Participant shall pay such amount (the
"Withholding Liability") to the Company on the Withholding Date in cash or by
check payable to the Company.
7. ESCROW.
(a) Until a Restricted Share vests, (i) the record address of the
holder of record of such Restricted Share shall be c/o the Secretary of the
Company at the address of the Company's principal executive office, (ii) the
stock certificate representing such Restricted Share (together with any cash,
property and/or securities comprising all or any part of such Restricted Share
as provided in Section 8 hereof) shall be held in escrow in the custody of the
Secretary of the Company, duly endorsed in blank or accompanied by a duly
executed stock power, and (iii) such stock certificate shall contain the
following legend:
"THE TRANSFER AND REGISTRATION OF TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS AS PROVIDED IN A RESTRICTED STOCK AGREEMENT DATED AS
OF [DATE OF AWARD TO BE INSERTED] BY AND BETWEEN THE CORPORATION
AND [NAME OF PARTICIPANT TO BE INSERTED]."
(b) From and after the date upon which a Restricted Share vests, the
holder of record of such Restricted Share shall be entitled (provided that
Participant shall have
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paid the Withholding Liability to the Company pursuant to Section 6 hereof) to
receive the stock certificate representing such Restricted Share (together with
any cash, property and/or securities comprising all or any part of such
Restricted Share as provided in Section 8 hereof), which stock certificate shall
not contain the legend set forth in subsection (a)(iii) above.
8. VOTING; DIVIDENDS; CERTAIN CORPORATE TRANSACTIONS. The holder of
record of any Restricted Share shall be entitled to exercise all voting rights
with respect to such share and to receive all regular, quarterly cash dividends
paid with respect thereto. In the event that the outstanding securities of any
class then comprising the Restricted Shares are increased, decreased or
exchanged for or converted into cash, property and/or a different number or kind
of securities, or cash, property and/or securities are distributed in respect of
such outstanding securities, in either case as a result of a reorganization,
merger, consolidation, recapitalization, reclassification, stock split, reverse
stock split or the like, then, unless the Committee shall determine otherwise,
the term "Restricted Shares" shall, from and after the date of such event,
include such cash, property and/or securities so distributed in respect of the
Restricted Shares, or into or for which the Restricted Shares are so increased,
decreased, exchanged or converted.
9. PLAN. The Restricted Shares are being sold pursuant to the Plan,
as in effect on the Date of Award, and are subject to all the terms and
conditions of the Plan, as the same may be amended from time to time; provided,
however, that no such amendment shall deprive Participant, without his or her
consent, of the Restricted Shares or of any of Participant's rights under this
Agreement. The interpretation and construction by the Committee of the Plan,
this Agreement and such rules and regulations as may be adopted by the Committee
for the purpose of administering the Plan shall be final and binding upon
Participant. Until the Restricted Shares shall vest or be forfeited, the
Company shall, upon written request therefor, send a copy of the Plan, in its
then current form, to the holder of record of the Restricted Shares.
10. EMPLOYMENT OR CONTRACT RIGHTS. No provision of this Agreement
shall (a) confer upon Participant any right to continue in the employment of or
contract with the Company or any of its subsidiaries, (b) affect the right of
the Company and each of its subsidiaries to terminate the employment or contract
of Participant, with or without cause, or (c) confer upon Participant any right
to participate in any employee welfare or benefit plan or other program of the
Company or any of its subsidiaries other than the Plan.
11. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California without
reference to choice or conflict of law principles.
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IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Award.
ALTRIS SOFTWARE, INC.
By
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Title:
PARTICIPANT
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Signature
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇, ▇▇▇▇▇ and Zip Code
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Social Security Number
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