Exhibit 99.5
IMMERSION CORPORATION
STOCK OPTION AGREEMENT
(For Non-U.S. Participant)
Immersion Corporation has granted to the Participant named in the
Notice of Grant of Stock Option (the "Grant Notice") to which this Stock Option
Agreement (the "Option Agreement") is attached an option (the "Option") to
purchase certain shares of Stock upon the terms and conditions set forth in the
Grant Notice and this Option Agreement. The Option has been granted pursuant to
and shall in all respects be subject to the terms and conditions of the
Immersion Corporation 2007 Equity Incentive Plan (the "Plan"), as amended to the
Date of Grant, the provisions of which are incorporated herein by reference. By
signing the Grant Notice, the Participant: (a) acknowledges receipt of and
represents that the Participant has read and is familiar with the Grant Notice,
this Option Agreement, the Plan and a prospectus for the Plan prepared in
connection with the registration with the Securities and Exchange Commission of
shares issuable pursuant to the Option (the "Plan Prospectus"), (b) accepts the
Option subject to all of the terms and conditions of the Grant Notice, this
Option Agreement and the Plan and (c) agrees to accept as binding, conclusive
and final all decisions or interpretations of the Committee upon any questions
arising under the Grant Notice, this Option Agreement or the Plan.
1. DEFINITIONS AND CONSTRUCTION.
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1.1 Definitions. Unless otherwise defined herein, capitalized
terms shall have the meanings assigned to such terms in the Grant Notice or the
Plan.
1.2 Construction. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Option Agreement. Except when otherwise indicated by the
context, the singular shall include the plural and the plural shall include the
singular. Use of the term "or" is not intended to be exclusive, unless the
context clearly requires otherwise.
2. CERTAIN CONDITIONS OF THE OPTION.
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2.1 Compliance with Local Law. The Participant agrees that the
Participant will not acquire shares pursuant to the Option or transfer, assign,
sell or otherwise deal with such shares except in compliance with Local Law.
2.2 Employment Conditions. In accepting the Option, the
Participant acknowledges that:
(a) Any notice period mandated under Local Law shall not be
treated as Service for the purpose of determining the vesting of the Option; and
the Participant's right to exercise the Option after termination of Service, if
any, will be measured by the date of termination of the Participant's active
Service and will not be extended by any notice period mandated under Local Law.
Subject to the foregoing and the provisions of the Plan, the Company, in its
sole discretion, shall determine whether the Participant's Service has
terminated and the effective date of such termination.
(b) The Plan is established voluntarily by the Company. It
is discretionary in nature and it may be modified, amended, suspended or
terminated by the Company at any time, unless otherwise provided in the Plan and
this Option Agreement.
(c) The grant of the Option is voluntary and occasional and
does not create any contractual or other right to receive future grants of
Options, or benefits in lieu of Options, even if Options have been granted
repeatedly in the past.
(d) All decisions with respect to future Option grants, if
any, will be at the sole discretion of the Company.
(e) The Participant's participation in the Plan shall not
create a right to further Service with any Participating Company and shall not
interfere with the ability of any Participating Company to terminate the
Participant's Service at any time, with or without cause.
(f) The Participant is voluntarily participating in the
Plan.
(g) The Option is an extraordinary item that does not
constitute compensation of any kind for Service of any kind rendered to any
Participating Company, and which is outside the scope of the Participant's
employment contract, if any.
(h) The Option is not part of normal or expected
compensation or salary for any purpose, including, but not limited to,
calculating any severance, resignation, termination, redundancy, end-of-service
payments, bonuses, long-service awards, pension or retirement benefits or
similar payments.
(i) In the event that the Participant is not an employee of
the Company, the Option grant will not be interpreted to form an employment
contract or relationship with the Company; and furthermore the Option grant will
not be interpreted to form an employment contract with any other Participating
Company.
(j) The future value of the underlying shares is unknown and
cannot be predicted with certainty. If the underlying shares do not increase in
value, the Option will have no value. If the Participant exercises the Option
and obtains shares, the value of those shares acquired upon exercise may
increase or decrease in value, even below the Exercise Price.
(k) No claim or entitlement to compensation or damages
arises from termination of the Option or diminution in value of the Option or
shares purchased through exercise of the Option resulting from termination of
the Participant's Service (for any reason whether or not in breach of Local Law)
and the Participant irrevocably releases the Company and each other
Participating Company from any such claim that may arise. If, notwithstanding
the foregoing, any such claim is found by a court of competent jurisdiction to
have arisen then, by signing this Option Agreement, the Participant shall be
deemed irrevocably to have waived the Participant's entitlement to pursue such a
claim.
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2.3 Data Privacy Consent.
(a) The Participant hereby explicitly and unambiguously
consents to the collection, use and transfer, in electronic or other form, of
the Participant's personal data as described in this document by and among the
members of the Participating Company Group for the exclusive purpose of
implementing, administering and managing the Participant's participation in the
Plan.
(b) The Participant understands that the Participating
Company Group holds certain personal information about the Participant,
including, but not limited to, the Participant's name, home address and
telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any shares or directorships held in the
Company, details of all Options or any other entitlement to shares awarded,
canceled, exercised, vested, unvested or outstanding in the Participant's favor,
for the purpose of implementing, administering and managing the Plan ("Data").
The Participant understands that Data may be transferred to any third parties
assisting in the implementation, administration and management of the Plan, that
these recipients may be located in the Participant's country or elsewhere, and
that the recipient's country may have different data privacy laws and
protections than the Participant's country. The Participant understands that he
or she may request a list with the names and addresses of any potential
recipients of the Data by contacting the Participant's local human resources
representative. The Participant authorizes the recipients to receive, possess,
use, retain and transfer the Data, in electronic or other form, for the purposes
of implementing, administering and managing the Participant's participation in
the Plan, including any requisite transfer of such Data as may be required to a
broker or other third party with whom the Participant may elect to deposit any
shares acquired upon exercise of the Option. The Participant understands that
Data will be held only as long as is necessary to implement, administer and
manage the Participant's participation in the Plan. The Participant understands
that he or she may, at any time, view Data, request additional information about
the storage and processing of Data, require any necessary amendments to Data or
refuse or withdraw the consents herein, in any case without cost, by contacting
in writing the Participant's local human resources representative. The
Participant understands, however, that refusing or withdrawing the Participant's
consent may affect the Participant's ability to participate in the Plan. For
more information on the consequences of the Participant's refusal to consent or
withdrawal of consent, the Participant understands that he or she may contact
the Participant's local human resources representative.
3. ADMINISTRATION.
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All questions of interpretation concerning this Option
Agreement shall be determined by the Committee. All determinations by the
Committee shall be final and binding upon all persons having an interest in the
Option as provided by the Plan. Any Officer shall have the authority to act on
behalf of the Company with respect to any matter, right, obligation, or election
which is the responsibility of or which is allocated to the Company herein,
provided the Officer has apparent authority with respect to such matter, right,
obligation, or election.
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4. EXERCISE OF THE OPTION.
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4.1 Right to Exercise. Except as otherwise provided herein,
the Option shall be exercisable on and after the Initial Vesting Date and prior
to the termination of the Option (as provided in Section 6) in an amount not to
exceed the number of Vested Shares less the number of shares previously acquired
upon exercise of the Option. In no event shall the Option be exercisable for
more shares than the Number of Option Shares, as adjusted pursuant to Section 9.
4.2 Method of Exercise. Exercise of the Option shall be by
means of electronic or written notice (the "Exercise Notice") in a form
authorized by the Company. An electronic Exercise Notice must be digitally
signed or authenticated by the Participant in such manner as required by the
notice and transmitted to the Company or an authorized representative of the
Company (including a third-party administrator designated by the Company). In
the event that the Participant is not authorized or is unable to provide an
electronic Exercise Notice, the Option shall be exercised by a written Exercise
Notice addressed to the Company, which shall be signed by the Participant and
delivered in person, by certified or registered mail, return receipt requested,
by confirmed facsimile transmission, or by such other means as the Company may
permit, to the Company, or an authorized representative of the Company
(including a third-party administrator designated by the Company). Each Exercise
Notice, whether electronic or written, must state the Participant's election to
exercise the Option, the number of whole shares of Stock for which the Option is
being exercised and such other representations and agreements as to the
Participant's investment intent with respect to such shares as may be required
pursuant to the provisions of this Option Agreement. Further, each Exercise
Notice must be received by the Company prior to the termination of the Option as
set forth in Section 6 and must be accompanied by full payment of the aggregate
Exercise Price for the number of shares of Stock being purchased. The Option
shall be deemed to be exercised upon receipt by the Company of such electronic
or written Exercise Notice and the aggregate Exercise Price.
4.3 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise
provided below, payment of the aggregate Exercise Price for the number of shares
of Stock for which the Option is being exercised shall be made (i) in cash or by
check or cash equivalent, (ii) if permitted by the Company, by tender to the
Company, or attestation to the ownership, of whole shares of Stock owned by the
Participant having a Fair Market Value not less than the aggregate Exercise
Price, (iii) by means of a Cashless Exercise, as defined in Section 4.3(b), or
(iv) by any combination of the foregoing.
(b) Limitations on Forms of Consideration.
(i) Tender of Stock. Notwithstanding the foregoing, the
Option may not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock to the extent such tender or attestation would
constitute a violation of the provisions of any law, regulation or agreement
restricting the redemption of the Company's stock. If required by the Company,
the Option may not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock unless such shares either have been owned by the
Participant for more than six (6) months or such other period, if any, required
by the Company (and not used for another option exercise by attestation during
such period) or were not acquired, directly or indirectly, from the Company.
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(ii) Cashless Exercise. A "Cashless Exercise" means the
delivery of a properly executed notice together with irrevocable instructions to
a broker in a form acceptable to the Company providing for the assignment to the
Company of the proceeds of a sale or loan with respect to some or all of the
shares of Stock acquired upon the exercise of the Option pursuant to a program
or procedure approved by the Company (including, without limitation, through an
exercise complying with the provisions of Regulation T as promulgated from time
to time by the Board of Governors of the Federal Reserve System). The Company
reserves, at any and all times, the right, in the Company's sole and absolute
discretion, to establish, decline to approve or terminate any such program or
procedure, including with respect to the Participant notwithstanding that such
program or procedures may be available to others.
4.4 Tax Withholding. Regardless of any action taken by the
Company or any other Participating Company with respect to any or all income
tax, social insurance, payroll tax, payment on account or other tax-related
withholding (the "Tax Obligations"), the Participant acknowledges that the
ultimate liability for all Tax Obligations legally due by the Participant is and
remains the Participant's responsibility and that the Company (a) makes no
representations or undertakings regarding the treatment of any Tax Obligations
in connection with any aspect of the Option, including the grant, vesting or
exercise of the Option, the subsequent sale of shares acquired pursuant to such
exercise, or the receipt of any dividends and (b) does not commit to structure
the terms of the grant or any other aspect of the Option to reduce or eliminate
the Participant's liability for Tax Obligations. At the time of exercise of the
Option, the Participant shall pay or make adequate arrangements satisfactory to
the Company to satisfy all withholding obligations of the Company and any other
Participating Company. In this regard, at the time the Option is exercised, in
whole or in part, or at any time thereafter as requested by the Company or any
other Participating Company, the Participant hereby authorizes withholding of
all applicable Tax Obligations from payroll and any other amounts payable to the
Participant, and otherwise agrees to make adequate provision for withholding of
all applicable Tax Obligations, if any, by each Participating Company which
arise in connection with the Option. Alternatively, or in addition, if
permissible under applicable law, including Local Law, the Company or any other
Participating Company may (i) sell or arrange for the sale of shares acquired by
the Participant to satisfy the Tax Obligations, and/or (ii) withhold in shares,
provided that only the amount of shares necessary to satisfy the minimum
withholding amount required by applicable law, including Local Law, is withheld.
Finally, the Participant shall pay to the Company or any other Participating
Company any amount of the Tax Obligations that any such company may be required
to withhold as a result of the Participant's participation in the Plan that
cannot be satisfied by the means previously described. The Company shall have no
obligation to process the exercise of the Option or to deliver shares until the
Tax Obligations as described in this Section have been satisfied by the
Participant.
4.5 Beneficial Ownership of Shares; Certificate Registration.
The Participant hereby authorizes the Company, in its sole discretion, to
deposit for the benefit of the Participant with any broker with which the
Participant has an account relationship of which the Company has notice any or
all shares acquired by the Participant pursuant to the exercise of the Option.
Except as provided by the preceding sentence, a certificate for the shares as to
which the Option is exercised shall be registered in the name of the
Participant, or, if applicable, in the names of the heirs of the Participant.
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4.6 Restrictions on Grant of the Option and Issuance of
Shares. The grant of the Option and the issuance of shares of Stock upon
exercise of the Option shall be subject to compliance with all applicable
requirements of United States federal or state or Local Law with respect to such
securities. The Option may not be exercised if the issuance of shares of Stock
upon exercise would constitute a violation of any applicable federal, state or
foreign securities laws, including Local Law, or other law or regulations or the
requirements of any stock exchange or market system upon which the Stock may
then be listed. In addition, the Option may not be exercised unless (i) a
registration statement under the Securities Act shall at the time of exercise of
the Option be in effect with respect to the shares issuable upon exercise of the
Option or (ii) in the opinion of legal counsel to the Company, the shares
issuable upon exercise of the Option may be issued in accordance with the terms
of an applicable exemption from the registration requirements of the Securities
Act. THE PARTICIPANT IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISED UNLESS
THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE PARTICIPANT MAY NOT BE
ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS VESTED. The
inability of the Company to obtain from any regulatory body having jurisdiction
the authority, if any, deemed by the Company's legal counsel to be necessary to
the lawful issuance and sale of any shares subject to the Option shall relieve
the Company of any liability in respect of the failure to issue or sell such
shares as to which such requisite authority shall not have been obtained. As a
condition to the exercise of the Option, the Company may require the Participant
to satisfy any qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any representation
or warranty with respect thereto as may be requested by the Company.
4.7 Fractional Shares. The Company shall not be required
to issue fractional shares upon the exercise of the Option.
5. NONTRANSFERABILITY OF THE OPTION.
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During the lifetime of the Participant, the Option shall be
exercisable only by the Participant or the Participant's guardian or legal
representative. The Option shall not be subject in any manner to anticipation,
alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or
garnishment by creditors of the Participant or the Participant's beneficiary,
except transfer by will or by the laws of descent and distribution. Following
the death of the Participant, the Option, to the extent provided in Section 7,
may be exercised by the Participant's legal representative or by any person
empowered to do so under the deceased Participant's will or under the then
applicable laws of descent and distribution.
6. TERMINATION OF THE OPTION.
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The Option shall terminate and may no longer be exercised
after the first to occur of (a) the close of business on the Option Expiration
Date, (b) the close of business on the last date for exercising the Option
following termination of the Participant's Service as described in Section 7, or
(c) a Change in Control to the extent provided in Section 8.
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7. EFFECT OF TERMINATION OF SERVICE.
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7.1 Option Exercisability. The Option shall terminate
immediately upon the Participant's termination of Service to the extent that it
is then unvested and shall be exercisable after the Participant's termination of
Service to the extent it is then vested only during the applicable time period
as determined below and thereafter shall terminate.
(a) Disability. If the Participant's Service terminates
because of the Disability of the Participant, the Option, to the extent
unexercised and exercisable for Vested Shares on the date on which the
Participant's Service terminated, may be exercised by the Participant (or the
Participant's guardian or legal representative) at any time prior to the
expiration of twelve (12) months after the date on which the Participant's
Service terminated, but in any event no later than the Option Expiration Date.
(b) Death. If the Participant's Service terminates because
of the death of the Participant, the Option, to the extent unexercised and
exercisable for Vested Shares on the date on which the Participant's Service
terminated, may be exercised by the Participant's legal representative or other
person who acquired the right to exercise the Option by reason of the
Participant's death at any time prior to the expiration of twelve (12) months
after the date on which the Participant's Service terminated, but in any event
no later than the Option Expiration Date. The Participant's Service shall be
deemed to have terminated on account of death if the Participant dies within
three (3) months after the Participant's termination of Service.
(c) Termination for Cause. If the Participant's Service is
terminated for Cause or if, following the Participant's termination of Service
and during any period in which the Option otherwise would remain exercisable,
the Participant engages in any act that would constitute Cause, the Option shall
terminate in its entirety and cease to be exercisable immediately upon such
termination of Service or act.
(d) Other Termination of Service. If the Participant's
Service terminates for any reason, except Disability, death or Cause, the
Option, to the extent unexercised and exercisable for Vested Shares by the
Participant on the date on which the Participant's Service terminated, may be
exercised by the Participant at any time prior to the expiration of three (3)
months after the date on which the Participant's Service terminated, but in any
event no later than the Option Expiration Date.
7.2 Extension if Exercise Prevented by Law or Xxxxxxx Xxxxxxx
Policy. Notwithstanding the foregoing, other than termination of Service for
Cause, if the exercise of the Option within the applicable time periods set
forth in Section 7.1 is prevented by the provisions of Section 4.6 or a sale of
shares pursuant to a Cashless Exercise of the Option would violate the
provisions of the Xxxxxxx Xxxxxxx Policy, the Option shall remain exercisable
until thirty (30) days after the date such exercise or sale, as the case may be,
would no longer be prevented by such provisions, but in any event no later than
the Option Expiration Date.
8. EFFECT OF CHANGE IN CONTROL.
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In the event of a Change in Control, except to the extent that
the Committee determines to cash out the Option in accordance with Section
15.1(c) of the Plan, the surviving, continuing, successor, or purchasing entity
or parent thereof, as the case may be (the "Acquiror"), may, without the consent
of the Participant, assume or continue in full force and effect the Company's
rights and obligations under all or any portion of the Option or substitute for
all or any portion of the Option a substantially equivalent option for the
Acquiror's stock. For purposes of this Section, the Option or any portion
thereof shall be deemed assumed if, following the Change in Control, the Option
confers the right to receive, subject to the terms and conditions of the Plan
and this Option Agreement, for each share of Stock subject to such portion of
the Option immediately prior to the Change in Control, the consideration
(whether stock, cash, other securities or property or a combination thereof) to
which a holder of a share of Stock on the effective date of the Change in
Control was entitled; provided, however, that if such consideration is not
solely common stock of the Acquiror, the Committee may, with the consent of the
Acquiror, provide for the consideration to be received upon the exercise of the
Option, for each share of Stock subject to the Option, to consist solely of
common stock of the Acquiror equal in Fair Market Value to the per share
consideration received by holders of Stock pursuant to the Change in Control.
The Option shall terminate and cease to be outstanding effective as of the time
of consummation of the Change in Control to the extent that the Option is
neither assumed or continued by the Acquiror in connection with the Change in
Control nor exercised as of the date of the Change in Control.
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9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE.
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Subject to any required action by the stockholders of the
Company, in the event of any change in the Stock effected without receipt of
consideration by the Company, whether through merger, consolidation,
reorganization, reincorporation, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares, or similar change in the capital
structure of the Company, or in the event of payment of a dividend or
distribution to the stockholders of the Company in a form other than Stock
(excepting normal cash dividends) that has a material effect on the Fair Market
Value of shares of Stock, appropriate and proportionate adjustments shall be
made in the number, Exercise Price and kind of shares subject to the Option, in
order to prevent dilution or enlargement of the Participant's rights under the
Option. For purposes of the foregoing, conversion of any convertible securities
of the Company shall not be treated as "effected without receipt of
consideration by the Company." Any fractional share resulting from an adjustment
pursuant to this Section shall be rounded down to the nearest whole number, and
the Exercise Price shall be rounded up to the nearest whole cent. In no event
may the Exercise Price be decreased to an amount less than the par value, if
any, of the stock subject to the Option. The Committee in its sole discretion,
may also make such adjustments in the terms of the Option to reflect, or related
to, such changes in the capital structure of the Company or distributions as it
deems appropriate. All adjustments pursuant to this Section shall be determined
by the Committee, and its determination shall be final, binding and conclusive.
10. RIGHTS AS A STOCKHOLDER, DIRECTOR, EMPLOYEE OR CONSULTANT.
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The Participant shall have no rights as a stockholder with
respect to any shares covered by the Option until the date of the issuance of
the shares for which the Option has been exercised (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company). No adjustment shall be made for dividends, distributions
or other rights for which the record date is prior to the date the shares are
issued, except as provided in Section 9. If the Participant is an Employee, the
Participant understands and acknowledges that, except as otherwise provided in a
separate, written employment agreement between a Participating Company and the
Participant, the Participant's employment is "at will" and is for no specified
term. Nothing in this Option Agreement shall confer upon the Participant any
right to continue in the Service of a Participating Company or interfere in any
way with any right of the Participating Company Group to terminate the
Participant's Service as a Director, an Employee or Consultant, as the case may
be, at any time.
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11. LEGENDS.
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The Company may at any time place legends referencing any
applicable federal, state or foreign securities law, including Local Law,
restrictions on all certificates representing shares of stock subject to the
provisions of this Option Agreement. The Participant shall, at the request of
the Company, promptly present to the Company any and all certificates
representing shares acquired pursuant to the Option in the possession of the
Participant in order to carry out the provisions of this Section. Unless
otherwise specified by the Company, legends placed on such certificates may
include, but shall not be limited to, the following:
12. MISCELLANEOUS PROVISIONS.
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12.1 Termination or Amendment. The Committee may terminate or
amend the Plan or the Option at any time; provided, however, that except as
provided in Section 8 in connection with a Change in Control, no such
termination or amendment may adversely affect the Option or any unexercised
portion hereof without the consent of the Participant unless such termination or
amendment is necessary to comply with any applicable law or government
regulation. No amendment or addition to this Option Agreement shall be effective
unless in writing.
12.2 Further Instruments. The parties hereto agree to execute
such further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Option Agreement.
12.3 Binding Effect. Subject to the restrictions on transfer
set forth herein, this Option Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
12.4 Delivery of Documents and Notices. Any document relating
to participation in the Plan or any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given (except to the extent
that this Option Agreement provides for effectiveness only upon actual receipt
of such notice) upon personal delivery, electronic delivery at the e-mail
address, if any, provided for the Participant by a Participating Company, or
upon deposit in the U.S. Post Office or foreign postal service, by registered or
certified mail, or with a nationally recognized overnight courier service, with
postage and fees prepaid, addressed to the other party at the address of such
party set forth in the Grant Notice or at such other address as such party may
designate in writing from time to time to the other party.
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(a) Description of Electronic Delivery. The Plan documents,
which may include but do not necessarily include: the Plan, the Grant Notice,
this Option Agreement, the Plan Prospectus, and any reports of the Company
provided generally to the Company's stockholders, may be delivered to the
Participant electronically. In addition, the Participant may deliver
electronically the Grant Notice and Exercise Notice called for by Section 4.2 to
the Company or to such third party involved in administering the Plan as the
Company may designate from time to time. Such means of electronic delivery may
include but do not necessarily include the delivery of a link to a Company
intranet or the Internet site of a third party involved in administering the
Plan, the delivery of the document via e-mail or such other means of electronic
delivery specified by the Company.
(b) Consent to Electronic Delivery. The Participant
acknowledges that the Participant has read Section 12.4(a) of this Option
Agreement and consents to the electronic delivery of the Plan documents and the
delivery of the Grant Notice and Exercise Notice, as described in Section
12.4(a). The Participant acknowledges that he or she may receive from the
Company a paper copy of any documents delivered electronically at no cost to the
Participant by contacting the Company by telephone or in writing. The
Participant further acknowledges that the Participant will be provided with a
paper copy of any documents if the attempted electronic delivery of such
documents fails. Similarly, the Participant understands that the Participant
must provide the Company or any designated third party administrator with a
paper copy of any documents if the attempted electronic delivery of such
documents fails. The Participant may revoke his or her consent to the electronic
delivery of documents described in Section 12.4(a) or may change the electronic
mail address to which such documents are to be delivered (if Participant has
provided an electronic mail address) at any time by notifying the Company of
such revoked consent or revised e-mail address by telephone, postal service or
electronic mail. Finally, the Participant understands that he or she is not
required to consent to electronic delivery of documents described in Section
12.4(a).
12.5 Integrated Agreement. The Grant Notice, this Option
Agreement and the Plan, together with any the Superseding Agreement, if any,
shall constitute the entire understanding and agreement of the Participant and
the Participating Company Group with respect to the subject matter contained
herein and supersede any prior agreements, understandings, restrictions,
representations, or warranties among the Participant and the Participating
Company Group with respect to such subject matter. To the extent contemplated
herein, the provisions of the Grant Notice, the Option Agreement and the Plan
shall survive any exercise of the Option and shall remain in full force and
effect.
12.6 Applicable Law. This Option Agreement shall be governed
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
the State of California. For purposes of litigating any dispute that arises
directly or indirectly from the relationship of the parties as evidenced by this
Option Agreement, the parties hereby submit to and consent to the jurisdiction
of the State of California and agree that such litigation shall be conducted
only in the courts of the County of Santa Clara, California, or the federal
courts of the United States for the Northern District of California, and no
other courts, where this Option Agreement is made and/or performed.
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12.7 Counterparts. The Grant Notice may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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