EX-10.27



 






Exhibit 10.27




OPENTV CORP.

2003 INCENTIVE PLAN



Form of Incentive Stock Option Agreement



     STOCK OPTION AGREEMENT dated as of ___, 20___(the “Grant Date”), between OpenTV Corp.
(the “Company”) and ___(“Optionee”).



Recitals




               A. Optionee is an employee of the Company or one of its Affiliates.



               B. The Company has adopted the OpenTV Corp. 2003 Incentive Plan, effective May 6,
2003 (the “Plan”), a copy of which is attached hereto as Exhibit A. This Agreement is entered into
pursuant to Section 10.5 of the Plan. Any capitalized terms used herein and not otherwise defined
are used as defined in the Plan.



               NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and Optionee hereby agree
to the following:



               1. Option Grant. The Company hereby grants to Optionee the option
(“Option”) to purchase up to ___shares (the “Shares”) of the Company’s Class A Ordinary
Shares, no par value, at an exercise price of $  per share (the “Exercise Price”), on the
terms, and subject to the conditions, set forth in this Agreement and the Plan. The Option is
intended to be an incentive stock option as defined in Section 422 of the Code and is hereby
designated an “incentive stock option” for all purposes of the Code and the Plan, provided that to
the extent the limitations of Section 422 of the Code are exceeded, the excess portion of the
Option is intended to be a nonqualified stock option within the meaning of Section 83 of the Code.



               2. Exercise



               (a) Vesting Schedule. The Option shall be exercisable from time to time
during its term in accordance with the following vesting schedule, except as otherwise expressly
provided in this Agreement and the Plan: Twenty-five percent (25%) of the Option shall vest and
become exercisable on the first anniversary of the Vesting Commencement Date. At the end of each
month thereafter, the Option shall vest and become exercisable as to an additional 1/48th of the
Shares until the Option is vested with respect to one hundred percent (100%) of the Shares. If
application of the vesting percentage causes a fractional Share, such fractional Share shall be
rounded down to a whole Share. For purposes of this Section 2(a), the Vesting Commencement Date is
___.



               (b) Termination of Service. Notwithstanding Section 2(a), if Optionee’s
service for the Company and/or its Subsidiaries (whether such service was rendered as an employee
or a consultant or advisor) terminates for any reason (“Termination of Service”) prior to the
complete exercise of the Option, then all vesting pursuant to Section 2(a) shall cease as of the
date of Termination of Service and the Option shall thereafter be exercisable only to the extent,
if any, that the Option was exercisable at the time of Termination of Service; provided,
however, that (i) if Termination of Services occurs by reason of death or Disability then
the Option shall immediately become exercisable in full as to 100% of the Shares and (ii) upon any
Termination of Service by the Company for Cause (as defined below), the entire Option shall
immediately and automatically terminate, notwithstanding any prior vesting. In addition,
notwithstanding any other provision in this Agreement to the contrary, the entire Option shall
immediately and automatically terminate, notwithstanding any prior vesting, if following
Termination of Service the Optionee breaches any material provision of the Employee Invention
Agreement (as defined below). For purposes of this Agreement, the term “Cause” (i) shall expressly
include the breach by Optionee of any material provision of the Employee Proprietary Information
and Inventions Agreement



1









 







signed by the Optionee for the benefit of the Company and/or its Subsidiaries (the “Employee
Invention Agreement”) and (ii) shall also include any actions or inactions constituting “cause”
within the meaning ascribed thereto in the Plan and in any employment agreement to which Optionee
is a party or, in the absence thereof, shall include but not be limited to insubordination,
dishonesty, incompetence, moral turpitude, other misconduct of any kind and the refusal to perform
his or her duties and responsibilities for any reason other than illness or incapacity.



               (c) Exercise After Termination. Upon any Termination of Service other than
(i) a termination by the Company for Cause or (ii) a termination by reason of death or Disability,
then the Option will terminate at the close of business on the first business day following the
expiration of the ninety (90) day period beginning on the date of such Termination of Service.
Upon any Termination of Service by reason of death or Disability, the Option shall remain
exercisable for a period of one year following Termination of Service (but not later than the
scheduled expiration of the Option).



               (d) Transfer of Employment. Notwithstanding Section 2(a), in the event
Optionee’s employment with the Company or a Subsidiary of the Company (a “Transferring Entity”) is
transferred to any other Subsidiary of the Company (a “Transferred Entity”), then the Board shall
have the right to terminate all unvested Options held by Optionee on the effective date of transfer
of employment from the Transferring Entity to the Transferred Entity if the Board determines, in
its sole judgment, that adequate provision has been made for Optionee to receive a new equity
incentive award, whether from the Company or from the Transferred Entity, in connection with such
transfer of employment.



               (e) Method of Exercise. This Option shall be exercisable by written notice
(in the form attached as Exhibit B or other form acceptable to the Company) which shall state the
election to exercise the Option, the number of Shares with respect to which the Option is being
exercised, and such representations, warranties and agreements as the Company may reasonably
request to comply with applicable U.S. federal or state securities laws and/or the requirements of
any stock exchange (or quotation system) upon which the Class A Ordinary Shares are listed or
included (a “Stock Exchange”). The written notice of exercise shall be accompanied by payment of
the aggregate Exercise Price for the number of Shares for which the Option is being exercised,
pursuant to one of the methods described in Section 4 below. The Option shall only be deemed to be
exercised upon receipt by the Company of such written notice accompanied by the Exercise Price so
paid.



               (f) Compliance with Law. No Shares will be issued pursuant to the exercise
of the Option unless such issuance and such exercise shall be in conformity with all relevant
provisions of law and the requirements of any applicable Stock Exchange. Assuming such compliance,
for income tax purposes, the Shares shall be deemed transferred to the Optionee at the close of
business (or such other time as the Board shall determine) on the date on which the Option is
exercised with respect to such Shares.



               (g) Withholding. The Company’s obligation to deliver Shares upon exercise
of the Option shall be subject to applicable federal, state and local tax withholding requirements.
Federal, state and local withholding tax due upon any exercise of the Option may, in the
discretion of the Board (or, if the Board expressly provides, the Committee), be paid in Class A
Ordinary Shares already owned by Optionee or through the withholding of Shares otherwise issuable
to Optionee, upon such terms and conditions as the Board (or the Committee) shall determine. If
Optionee shall fail to pay, or make arrangements satisfactory to the Board or the Committee for the
payment to the Company of all such federal, state and local taxes required to be withheld by the
Company, then the Company shall, to the extent permitted by law, have the right to deduct from any
payment of any kind otherwise due to Optionee an amount equal in value to any federal, state or
local taxes of any kind required to be withheld by the Company with respect to any exercise of the
Option.



               3. Optionee’s Representations. If, at the time the Option is exercised, the
issuance of Shares upon exercise of the Option has not been registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended, then concurrently with the
exercise of all or any portion of the Option, Optionee shall deliver to the Company a signed
Investment Representation Letter in the form of Exhibit C attached hereto.



2









 





               4. Method of Payment. Payment of the Exercise Price shall be made only by
one or more of the following methods, or a combination thereof, as Optionee shall from time to time
elect:



               (a) cash;



               (b) check;



               (c) surrender of whole Shares that (A) have been owned by Optionee for at least six
months on the date of surrender (or for a shorter period, if the Committee expressly approves the
use of such Shares), and (B) have an aggregate Fair Market Value (as determined in accordance with
the provisions of the Plan) on the date of surrender equal to the aggregate Exercise Price of the
Shares as to which the Option is being exercised (it being understood that so-called “pyramid” or
“bootstrap” exercising of options is not permitted by this Agreement); or



               (d) delivery, together with such other documentation as the Company in its sole and
absolute discretion shall require, of irrevocable instructions by Optionee to an approved broker to
(i) sell the Shares issuable upon exercise of the Option and (ii) deliver to the Company the amount
of sale proceeds required to pay the Exercise Price; provided, that: (A) the delivery by the
Company to the approved broker of Shares sold pursuant to the Optionee’s instructions, (B) the
broker’s delivery of the Exercise Price to the Company, and (C) the broker’s delivery of the net
proceeds of the sale to the Optionee, take place on the same date (the “Settlement Date”) and;
provided, further, that the Settlement Date is no later than three (3) days following the date the
Optionee provides the approved broker with instructions to sell the Shares issuable upon the
exercise of the Option.



               5. Compliance with Laws. The Option may not be exercised if the issuance of
Shares upon such exercise or the method of paying the Exercise Price for such Shares would
constitute a violation of any applicable federal or state securities or other law or regulation,
including any rule under Part 207 of Title 12 of the Code of Federal Regulations (“Regulation G”)
as promulgated by the Federal Reserve Board.



               6. Non-Transferability. Neither the Option nor any rights of Optionee
hereunder may be transferred or assigned in any manner otherwise than by will or by the laws of
descent or distribution or pursuant to a Domestic relations order, and, except as otherwise
required pursuant to a Domestic relations order, the Option may be exercised during the lifetime of
Optionee only by Optionee (or his or her court appointed legal representative). The terms of this
Option shall be binding upon the executors, administrators, heirs, successors and assigns of the
Optionee.



               7. Term of Option. The term of the Option shall commence on the date of
this Agreement and shall automatically expire on the tenth (10th) anniversary of the Grant Date, to
the extent not theretofore exercised.



               8. Employee Invention Agreement. Optionee hereby represents and agrees that
Optionee has executed and delivered prior to the date hereof an Employee Invention Agreement. The
Optionee expressly acknowledges that his/her agreement to enter into and to be bound by the terms
of the Employee Invention Agreement is a condition precedent to the grant of the Option hereunder
and that without that agreement, the Company would not enter into this Agreement.



               9. Incorporation of the Plan; Entire Agreement; Governing Law. This
Agreement is an agreement entered into pursuant to the Plan, and the Option is an Option granted
under the Plan, and the Plan is hereby incorporated herein by reference. Optionee agrees that his
or her rights under the Option and this Agreement shall be subject to such administrative rules and
interpretations of the Plan as the Board or the Committee shall adopt in accordance with the Plan.
The Plan (including any and all such rules and interpretations adopted by the Board or the
Committee), this Agreement, the Employee Invention Agreement and any other employment agreement
between the Company and Optionee that has been approved by the Board and that expressly references
the Option or this 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 Optionee and Company hereby
represent and warrant that no promise or agreement not herein expressed has been made by any person
with respect to this Agreement or the subject matter hereof. If



3









 




any provision of this Agreement conflicts with any requirement of the Plan, the Plan
requirements shall govern. This Option Agreement shall be governed by the laws of Delaware
applicable to contracts made and performed wholly therein.




               10. Notices. All notices, requests or demands under this Agreement shall be
in writing and will be deemed to have been duly given or delivered (a) when delivered by hand, (b)
one (1) day after being given to an express courier with a reliable system for tracking delivery,
(c) when sent by confirmed facsimile with a copy sent by another means specified in this Section
10, or (d) five (5) days after the date of mailing by certified or registered mail, return receipt
requested, postage prepaid, and addressed as follows:



     In the case of the Company:




OpenTV Corp.

275 Sacramento Street

San Francisco, California 94111

Fax : (415) 962-5300

Attn: General Counsel



     In the case of Optionee, to the Optionee at the address indicated on the signature page of
this Agreement,
or such other address, or to the attention of such other person, as the recipient party shall have
specified by prior written notice to the sending party, as reflected in the books and records of
the Company from time to time.



               11. Optionee Employment. Nothing contained in this Agreement, and no action
of the Company, the Board or the Committee with respect hereto, shall confer or be construed to
confer on Optionee any right to continue in the service of the Company or any of its Affiliates or
interfere in any way with the right of the Company or any Affiliate to terminate Optionee ‘s
service at any time, with or without Cause.



               12. Amendment. Notwithstanding any other provisions hereof, this Agreement
may be supplemented or amended from time to time as approved by the Committee as contemplated by
Section 10.8(b) of the Plan. Without limiting the generality of the foregoing, without the consent
of the Optionee:



                    (a) this Agreement may be amended or supplemented (i) to cure any ambiguity or to
correct or supplement any provision herein which may be defective or inconsistent with any other
provision herein, or (ii) to add to the covenants and agreements of the Company for the benefit of
Optionee or surrender any right or power reserved to or conferred upon the Company in this
Agreement, subject, however, to any required approval of the Company’s shareholders and, provided,
in each case, that such changes or corrections shall not adversely affect the rights of Optionee
with respect to the Option evidenced hereby, or (iii) to make such other changes as the Company,
upon advice of counsel, determines are necessary or advisable because of the adoption or
promulgation of, or change in or of the interpretation of, any law or governmental rule or
regulation, including any applicable federal or state securities laws; and



                    (b) subject to Section 10.8(b) of the Plan and any required approval of the
Company’s shareholders, the Option evidenced by this Agreement may be cancelled by the Committee
and a new Option granted in substitution therefor, provided that the Option so substituted shall
satisfy all of the requirements of the Plan as of the date such new Option grant is made and no
such action shall adversely affect the Option to the extent then exercisable.



               13. Optionee Acceptance. Optionee shall signify acceptance of the terms and
conditions of this Agreement by signing in the space provided at the end hereof and returning a
signed copy to the Company. This Agreement may be executed in any number of counterparts (i.e.,
duplicate originals) and on separate counterparts, each of which shall be deemed to be an original
instrument and all of which shall together constitute a single agreement.



4









 





               14. Severability. Any provision of this Agreement which is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that
or any other provisions of this Agreement invalid, illegal or unenforceable in any other
jurisdiction; provided, that if any provision hereof or the application thereof shall be so held to
be invalid, void or unenforceable by a court of competent jurisdiction, then such court may
substitute therefor a suitable and equitable provision in order to carry out, so far as may be
valid and enforceable, the intent and purpose of the invalid, void or unenforceable provision and,
if such court shall fail or decline to do so, the parties shall negotiate in good faith in an
effort to agree upon such a suitable and equitable provision.



               IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.



OPENTV CORP.



By:______________________________

      Name:

      Title:



               Optionee has had an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee further agrees to notify the Company
upon any change in the residence address indicated below.



	 	 	 
	Dated:_____________________________	 	_____________________________________

NAME OF OPTIONEE
	 	 	 
	 	 	
Residence Address:






5









 






EXHIBIT A



OpenTV Corp. 2003 Incentive Plan



[Filed as Exhibit 10.22]



 









 





EXHIBIT B




OpenTV Corp.

275 Sacramento Street

San Francisco, California 94111

Fax : (415) 962-5300

Attn: General Counsel



Exercise Notice




Gentlemen:



               Effective at the close of business
today, _________, 20___, the undersigned
(“Optionee”) hereby elects to exercise Optionee’s option to purchase ___Class A Ordinary Shares,
no par value (the “Shares”), of OpenTV Corp. (the “Company”), pursuant to the Stock Option
Agreement dated as of _________, 20___(the “Option Agreement”), between Optionee and the
Company, and hereby acknowledges, represents and agrees, for the benefit of the Company as follows:



          1. Option Agreement. Optionee has read and understands the Option Agreement
and the Plan and is bound by the terms and conditions thereof. Unless otherwise defined herein,
terms defined in the Option Agreement have the same meanings in this Exercise Notice.



          2. Rights as Shareholder. Until the stock certificate evidencing the Shares
has been issued (as evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends or any other
rights as a shareholder shall exist with respect to any Shares, notwithstanding the exercise of the
Option. No adjustment will be made for any dividend or other right for which the record date is
prior to the date the stock certificate is issued, except as provided in the Plan.



          3. Tax Consultation. Optionee understands that Optionee may incur tax
consequences as a result of Optionee’s purchase or disposition of the Shares. Optionee has
consulted with any tax consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and is not relying on the Company for any tax advice.



          4. Restrictive Legends and Stop-Transfer Orders.



               (a) Legends. Optionee agrees that, if, at the time the Option is exercised,
the issuance of Shares on exercise of the Option has not been registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended, the Company (or its transfer
agent) may cause a legend in substantially the form set forth below, and/or such other legend or
legends as the Company, in its sole discretion, deems necessary, proper or advisable under U.S.
federal and applicable state securities laws and regulations, to be placed on any certificate(s)
evidencing ownership of the Shares:




“The securities represented by this certificate have not been registered under the
Securities Act of 1933, and may not be sold or otherwise transferred unless so
registered or unless an exemption from the registration requirements of such Act is
available for such sale or transfer.”



               (b) Stop-Transfer Notices; Refusal to Transfer. The Company may issue
appropriate “stop transfer” instructions to its transfer agent from time to time in order to ensure
compliance with the restrictions referred to herein. The Company shall not be required to transfer
on its books any Shares that have been sold or otherwise transferred in violation of any of the
provisions of this Exercise Notice or to treat as owner of such Shares or to accord the right to
vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been
transferred.



 









 





          5. Successors and Assigns. This Exercise Notice shall be binding upon
Optionee, his heirs, executors, administrators, successors and assigns, and shall inure to the
benefit of the Company, its successors and assigns.



          6. Governing Law; Severability. This Exercise Notice shall be governed by
and construed in accordance with the laws of Delaware applicable to contracts made and performed
wholly therein. Should any provision of this Exercise Notice be determined by a court of law to be
illegal or unenforceable, the other provisions shall nevertheless remain in effect.



          7. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be effectively given if given in accordance with Section 10 of the Option
Agreement.



          8. Further Instruments. The parties shall execute such further instruments
and take such further action as may be reasonably necessary to carry out the purposes and intent of
this Exercise Notice, the Plan and the Option.



          9. Delivery of Payment. Optionee herewith delivers to the Company the full
Exercise Price for the Shares, in accordance with Section 4 of the Option Agreement.



          10. Entire Agreement. The Option Agreement, the Plan and, if applicable,
the Investment Representation Letter are incorporated herein by reference. This Exercise Notice,
the Option Agreement, the Plan and, if applicable, the Investment Representation Letter 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 interests except by
means of a writing signed by the Company and Optionee.



B-2









 





	 	 	 
	Submitted by:	 	
Accepted by:
	 	 	 
	OPTIONEE:	 	
OPENTV CORP.
	 	 	 
	 	 	
By:______________________________
	 	 	
Its:______________________________
	______________________________
(Signature)	 	 
	 	 	 
	Address:	 	 
	 	 	 
	______________________________	 	 






B-3









 






EXHIBIT C




OpenTV Corp.

275 Sacramento Street

San Francisco, California 94111

Fax : (415) 962-5300

Attn: General Counsel



Investment Representation Letter




Gentlemen:



               In connection with the purchase of Class A Ordinary Shares, no par value (the “Shares”), of
OpenTV Corp. (the “Company”), by exercise of that certain Stock Option Agreement dated as of
_________20___, between the undersigned (“Optionee”) and the Company, Optionee hereby represents
and warrants to the Company as follows:



               (a) Optionee is knowledgeable with respect to the business of the Company and
financial affairs and has acquired sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the Shares. Optionee is acquiring the Shares for investment
for Optionee’s own account only and not with a view to, or for resale in connection with, any
“distribution” thereof within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”).



               (b) Optionee acknowledges and understands that the Shares constitute “restricted
securities” under the Securities Act and have not been registered under the Securities Act in
reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the
bona fide nature of Optionee’s investment intent as expressed herein. In this connection, Optionee
understands that, in the view of the Securities and Exchange Commission, the statutory basis for
such exemption may be unavailable if Optionee’s representation was predicated solely upon a present
intention to hold these Shares for the minimum capital gains period specified under tax statutes,
for a deferred sale, for or until a given increase or decrease in the market price of the Shares,
or for a period of one year or any other fixed period in the future.



               (c) Optionee is familiar with the provisions of Rule 144 promulgated under the
Securities Act, which, in substance, permits limited public resale of “restricted securities”
acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions, including: (1) the resale to occur not less than one year after
the Shares were acquired, (2) the resale being made through a broker in an unsolicited “broker’s
transaction” or in transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934); and, in the case of an affiliate, or a nonaffiliate who has held
the Shares less than two years, (3) the availability of certain public information about the
Company, (4) the amount of Shares being sold during any three-month period not exceeding the
limitations specified in Rule 144(e), and (5) the timely filing of a Form 144, if applicable.



               (d) Optionee further understands that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities Act, compliance with
Regulation A or some other registration exemption will be required in connection with any transfer
of Shares; and that, notwithstanding the fact that Rule 144 is not exclusive, the Staff of the
Securities and Exchange Commission has expressed its opinion that persons proposing to sell private
placement securities other than in a registered offering and otherwise than pursuant to Rule 144
will have a substantial burden of proof in establishing that an exemption from registration is
available for such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk. Optionee understands that no assurances
can be given that any such other registration exemption will be available in such event.



C-1









 





Signature of Optionee:




___________________________


Date: ___________, 20___




C-2