Unassociated Document


Atomica
Corporation 2000 Stock Plan

 

Notice
of Stock Option Grant

 

 

You have
been granted the following option to purchase shares of the Common Stock of
Atomica Corporation (the “Company”):

 


	 	Name of Optionee: 	 	«Name» 
	 	 	 	 
	 	Total Number of Shares: 	 	«TotalShares» 
	 	 	 	 
	 	Type of Option: 	 	«ISO» Incentive
      Stock Option 
	 	 	 	 
	 	 	 	«NSO» Nonstatutory
      Stock Option 
	 	 	 	 
	 	 	 	
      «3(i)» Section 3(i)
      Option (Israeli Income Tax Ordinance)

	 	 	 	 
	 	Exercise Price Per Share: 	 	$«PricePerShare» 
	 	 	 	 
	 	Date of Grant: 	 	«DateGrant» 
	 	 	 	 
	 	
      Date
      Exercisable: 
	 	
      This
      option may be exercised at any time after the Date of Grant for all or any
      part of the Shares subject to this option. 

	 	 	 	 
	 	Vesting Commencement Date: 	 	«VestComDate» 
	 	 	 	 
	 	
      Vesting
      Schedule: 
	 	
      The
      Right of Repurchase shall lapse with respect to the first 25% of the
      Shares subject to this option when the Optionee completes 12 months of
      continuous Service after the Vesting Com-mencement Date. The Right of
      Repurchase shall lapse with respect to an additional 2.08333% of the
      Shares subject to this option when the Optionee completes each month of
      continuous Service thereafter. 

	 	 	 	 
	 	Expiration Date: 	 	«ExpDate» 



 

By your
signature and the signature of the Company’s representative below, you and the
Company agree that this option is granted under and governed by the terms and
conditions of the 2000 Stock Plan and the Stock Option Agreement, both of which
are attached to and made a part of this document.

 


	Optionee: 	 	Atomica Corporation 
	 	 	 
	                                                             
       	 	By:                                                               
	 	 	Title:                                                             



  




















 

THE
OPTION GRANTED PURSUANT TO THIS AGREEMENT AND THE SHARES ISSUABLE UPON THE
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.

 

Atomica
Corporation 2000 Stock Plan:

Stock
Option Agreement

 

SECTION
1.  
GRANT OF OPTION.

 

(a)  Option. On the
terms and conditions set forth in the Notice of Stock Option Grant and this
Agreement, the Company grants to the Optionee on the Date of Grant the option to
purchase at the Exercise Price the number of Shares set forth in the Notice of
Stock Option Grant. The Exercise Price is agreed to be at least 100% of the Fair
Market Value per Share on the Date of Grant (110% of Fair Market Value if
Section 3(b) of the Plan applies). This option is intended to be an ISO, a
Nonstatutory Option, or a Nonstatutory Option described in Section 14, as
provided in the Notice of Stock Option Grant.

 

(b)  Stock
Plan and Defined Terms. This
option is granted pursuant to the Plan, a copy of which the Optionee
acknowledges having received. The provisions of the Plan are incorporated into
this Agreement by this reference. Capitalized terms are defined in
Section 15 of this Agreement.

 

SECTION
2.  
RIGHT TO EXERCISE.

 

(a)  Exercisability. Subject
to Subsections (b) and (c) below and the other conditions set forth in this
Agreement, all or part of this option may be exercised prior to its expiration
at the time or times set forth in the Notice of Stock Option Grant. Shares
purchased by exercising this option may be subject to the Right of Repurchase
under Section 7.

 

(b)  $100,000
Limitation. If this
option is designated as an ISO in the Notice of Stock Option Grant, then the
Optionee’s right to exercise this option shall be deferred to the extent (and
only to the extent) that this option otherwise would not be treated as an ISO by
reason of the $100,000 annual limitation under Section 422(d) of the Code,
except that:

 

(i)  The
Optionee’s right to exercise this option shall in any event become exercisable
at least as rapidly as 20% per year over the five-year period commencing on the
Date of Grant, unless the Optionee is an officer of the Company, an Outside
Director or a Consultant; and

 




















 

(ii)  The
Optionee’s right to exercise this option shall no longer be deferred if
(A) the Company is subject to a Change in Control before the Optionee’s
Service terminates, (B) this option does not remain outstanding,
(C) this option is not assumed by the surviving corporation or its parent
and (D) the surviving corporation or its parent does not substitute an
option with substantially the same terms for this option.

 

(c)  Stockholder
Approval. Any
other provision of this Agreement notwithstanding, no portion of this option
shall be exercisable at any time prior to the approval of the Plan by the
Company’s stockholders.

 

SECTION
3.  
NO TRANSFER OR ASSIGNMENT OF OPTION.

 

Except as
otherwise provided in this Agreement, this option and the rights and privileges
conferred hereby shall not be sold, pledged or otherwise transferred (whether by
operation of law or otherwise) and shall not be subject to sale under execution,
attachment, levy or similar process.

 

SECTION
4.  
EXERCISE PROCEDURES.

 

(a)  Notice
of Exercise. The
Optionee or the Optionee’s representative may exercise this option by giving
written notice to the Company pursuant to Section 13(c). The notice shall
specify the election to exercise this option, the number of Shares for which it
is being exercised and the form of payment. The person exercising this option
shall sign the notice. In the event that this option is being exercised by the
representative of the Optionee, the notice shall be accompanied by proof
(satisfactory to the Company) of the representative’s right to exercise this
option. The Optionee or the Optionee’s representative shall deliver to the
Company, at the time of giving the notice, payment in a form permissible under
Section 5 for the full amount of the Purchase Price.

 

(b)  Issuance
of Shares. After
receiving a proper notice of exercise, the Company shall cause to be issued a
certificate or certificates for the Shares as to which this option has been
exercised, registered in the name of the person exercising this option (or in
the names of such person and his or her spouse as community property or as joint
tenants with right of survivorship). The Company shall cause such certificate or
certificates to be deposited in escrow or delivered to or upon the order of the
person exercising this option.

 

(c)  Withholding
Taxes. In the
event that the Company determines that it is required to withhold any tax as a
result of the exercise of this option, the Optionee, as a condition to the
exercise of this option, shall make arrangements satisfactory to the Company to
enable it to satisfy all withholding requirements. The Optionee shall also make
arrangements satisfactory to the Company to enable it to satisfy any withholding
requirements that may arise in connection with the vesting or disposition of
Shares purchased by exercising this option.

 

SECTION
5.  
Payment For Stock.

 

(a)  Cash. All or
part of the Purchase Price may be paid in cash or cash equivalents.

 







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(b)  Surrender
of Stock. All or
any part of the Purchase Price may be paid by surrendering, or attesting to the
ownership of, Shares that are already owned by the Optionee. Such Shares shall
be surrendered to the Company in good form for transfer and shall be valued at
their Fair Market Value on the date when this option is exercised. The Optionee
shall not surrender, or attest to the ownership of, Shares in payment of the
Purchase Price if such action would cause the Company to recognize compensation
expense (or additional compensation expense) with respect to this option for
financial reporting purposes.

 

(c)  Exercise/Sale. If
Stock is publicly traded, all or part of the Purchase Price and any withholding
taxes may be paid by the delivery (on a form prescribed by the Company) of an
irrevocable direction to a securities broker approved by the Company to sell
Shares and to deliver all or part of the sales proceeds to the
Company.

 

(d)  Exercise/Pledge. If
Stock is publicly traded, all or part of the Purchase Price and any withholding
taxes may be paid by the delivery (on a form prescribed by the Company) of an
irrevocable direction to pledge Shares to a securities broker or lender approved
by the Company, as security for a loan, and to deliver all or part of the loan
proceeds to the Company.

 

SECTION
6.  
Term And Expiration.

 

(a)  Basic
Term. This
option shall in any event expire on the expiration date set forth in the Notice
of Stock Option Grant, which date is 10 years after the Date of Grant (five
years after the Date of Grant if this option is designated as an ISO in the
Notice of Stock Option Grant and Section 3(b) of the Plan
applies).

 

(b)  Termination
of Service (Except by Death). If the
Optionee’s Service terminates for any reason other than death, then this option
shall expire on the earliest of the following occasions:

 

(i)  The
expiration date determined pursuant to Subsection (a) above;

 

(ii)  The date
three months after the termination of the Optionee’s Service for any reason
other than Disability; or

 

(iii)  The date
six months after the termination of the Optionee’s Service by reason of
Disability.

 

The
Optionee may exercise all or part of this option at any time before its
expiration under the preceding sentence, but only to the extent that this option
had become exercisable for vested shares before the Optionee’s Service
terminated. When the Optionee’s Service terminates, this option shall expire
immediately with respect to the number of Shares for which this option is not
yet exercisable and with respect to any Restricted Shares. In the event that the
Optionee dies after termination of Service but before the expiration of this
option, all or part of this option may be exercised (prior to expiration) by the
executors or administrators of the Optionee’s estate or by any person who has
acquired this option directly from the Optionee by beneficiary designation,
bequest or inheritance, but only to the extent that this option had become
exercisable before the Optionee’s Service terminated.

 







3












 

(c)  Death
of the Optionee. If the
Optionee dies while in Service, then this option shall expire on the earlier of
the following dates:

 

(i)  The
expiration date determined pursuant to Subsection (a) above;
or

 

(ii)  The date
12 months after the Optionee’s death.

 

All or
part of this option may be exercised at any time before its expiration under the
preceding sentence by the executors or administrators of the Optionee’s estate
or by any person who has acquired this option directly from the Optionee by
beneficiary designation, bequest or inheritance, but only to the extent that
this option had become exercisable before the Optionee’s death. When the
Optionee dies, this option shall expire immediately with respect to the number
of Shares for which this option is not yet exercisable and with respect to any
Restricted Shares.

 

(d)  Leaves
of Absence. For any
purpose under this Agreement, Service shall be deemed to continue while the
Optionee is on a bona fide leave of absence, if such leave was approved by the
Company in writing and if continued crediting of Service for such purpose is
expressly required by the terms of such leave or by applicable law (as
determined by the Company).

 

(e)  Notice
Concerning ISO Treatment. If this
option is designated as an ISO in the Notice of Stock Option Grant, it ceases to
qualify for favorable tax treatment as an ISO to the extent it is exercised
(i) more than three months after the date the Optionee ceases to be an
Employee for any reason other than death or permanent and total disability (as
defined in Section 22(e)(3) of the Code), (ii) more than 12 months
after the date the Optionee ceases to be an Employee by reason of such permanent
and total disability or (iii) after the Optionee has been on a leave of
absence for more than 90 days, unless the Optionee’s reemployment rights are
guaranteed by statute or by contract.

 

SECTION
7.  
RIGHT OF REPURCHASE.

 

(a)  Scope
of Repurchase Right. Unless
they have become vested in accordance with the Notice of Stock Option Grant and
Subsection (c) below, the Shares acquired under this Agreement initially
shall be Restricted Shares and shall be subject to a right (but not an
obligation) of repurchase by the Company. The Optionee shall not transfer,
assign, encumber or otherwise dispose of any Restricted Shares without the
Company’s written consent, except as provided in the following sentence. The
Optionee may transfer Restricted Shares (i) by beneficiary designation,
will or intestate succession or (ii) to the Optionee’s spouse, children or
grandchildren or to a trust established by the Optionee for the benefit of the
Optionee or the Optionee’s spouse, children or grandchildren, provided in either
case that the Transferee agrees in writing on a form prescribed by the Company
to be bound by all provisions of this Agreement. If the Optionee transfers any
Restricted Shares, then this Section 7 shall apply to the Transferee to the
same extent as to the Optionee.

 







4












 

(b)  Condition
Precedent to Exercise. The
Right of Repurchase shall be exercisable with respect to any Restricted Shares
only during the 60-day period next following the later of:

 

(i)  The date
when the Optionee’s Service terminates for any reason, with or without cause,
including (without limitation) death or disability; or

 

(ii)  The date
when such Restricted Shares were purchased by the Optionee, the executors or
administrators of the Optionee’s estate or any person who has acquired this
option directly from the Optionee by bequest, inheritance or beneficiary
designation.

 

(c)  Lapse
of Repurchase Right. The
Right of Repurchase shall lapse with respect to the Shares subject to this
option in accordance with the vesting schedule set forth in the Notice of Stock
Option Grant. In addition, the following rules shall apply if the Company is
subject to a Change in Control before the Optionee’s Service
terminates:

 

(i)  If the
Right of Repurchase is not assigned to the entity that employs the Optionee
immediately after the Change in Control or to its parent or subsidiary, then the
Right of Repurchase shall lapse and all of the remaining Restricted Shares shall
become vested.

 

(ii)  If the
Right of Repurchase is assigned to the entity that employs the Optionee
immediately after the Change in Control or to its parent or subsidiary, and if
the Optionee is subject to an Involuntary Termination within 12 months after the
Change in Control, then the vested portion of the Restricted Shares shall be
determined by adding 12 months to the Optionee’s actual Service.

 

(d)  Repurchase
Cost. If the
Company exercises the Right of Repurchase, it shall pay the Optionee an amount
equal to the Exercise Price for each of the Restricted Shares being
repurchased.

 

(e)  Exercise
of Repurchase Right. The
Right of Repurchase shall be exercisable only by written notice delivered to the
Optionee prior to the expiration of the 60-day period specified in
Subsection (b) above. The notice shall set forth the date on which the
repurchase is to be effected. Such date shall not be more than 30 days after the
date of the notice. The certificate(s) representing the Restricted Shares to be
repurchased shall, prior to the close of business on the date specified for the
repurchase, be delivered to the Company properly endorsed for transfer. The
Company shall, concurrently with the receipt of such certificate(s), pay to the
Optionee the purchase price determined according to Subsection (d) above.
Payment shall be made in cash or cash equivalents or by canceling indebtedness
to the Company incurred by the Optionee in the purchase of the Restricted
Shares. The Right of Repurchase shall terminate with respect to any Restricted
Shares for which it has not been timely exercised pursuant to this
Subsection (e).

 

(f)  Additional
Shares or Substituted Securities. In the
event of the declaration of a stock dividend, the declaration of an
extraordinary dividend payable in a form other than stock, a spin-off, a stock
split, an adjustment in conversion ratio, a recapitalization or a similar
transaction affecting the Company’s outstanding securities without receipt of
consideration, any new, substituted or additional securities or other property
(including money paid other than as an ordinary cash dividend) which are by
reason of such transaction distributed with respect to any Restricted Shares or
into which such Restricted Shares thereby become convertible shall immediately
be subject to the Right of Repurchase. Appropriate adjustments to reflect the
distribution of such securities or property shall be made to the number and/or
class of the Restricted Shares. Appropriate adjustments shall also, after each
such transaction, be made to the price per share to be paid upon the exercise of
the Right of Repurchase in order to reflect any change in the Company’s
outstanding securities effected without receipt of consideration therefor;
provided, however, that the aggregate purchase price payable for the Restricted
Shares shall remain the same.

 







5












 

(g)  Termination
of Rights as Stockholder. If the
Company makes available, at the time and place and in the amount and form
provided in this Agreement, the consideration for the Restricted Shares to be
repurchased in accordance with this Section 7, then after such time the
person from whom such Restricted Shares are to be repurchased shall no longer
have any rights as a holder of such Restricted Shares (other than the right to
receive payment of such consideration in accordance with this Agreement). Such
Restricted Shares shall be deemed to have been repurchased in accordance with
the applicable provisions hereof, whether or not the certificate(s) therefor
have been delivered as required by this Agreement.

 

(h)  Escrow. Upon
issuance, the certificates for Restricted Shares shall be deposited in escrow
with the Company to be held in accordance with the provisions of this Agreement.
Any new, substituted or additional securities or other property described in
Subsection (f) above shall immediately be delivered to the Company to be
held in escrow, but only to the extent the Shares are at the time Restricted
Shares. All regular cash dividends on Restricted Shares (or other securities at
the time held in escrow) shall be paid directly to the Optionee and shall not be
held in escrow. Restricted Shares, together with any other assets or securities
held in escrow hereunder, shall be (i) surrendered to the Company for
repurchase and cancellation upon the Company’s exercise of its Right of
Repurchase or Right of First Refusal or (ii) released to the Optionee upon
the Optionee’s request to the extent the Shares are no longer Restricted Shares
(but not more frequently than once every six months). In any event, all Shares
which have vested (and any other vested assets and securities attributable
thereto) shall be released within 60 days after the earlier of (i) the
Optionee's cessation of Service or (ii) the lapse of the Right of First
Refusal.

 

SECTION
8.  
RIGHT OF FIRST REFUSAL.

 

(a)  Right
of First Refusal. In the
event that the Optionee proposes to sell, pledge or otherwise transfer to a
third party any Shares acquired under this Agreement, or any interest in such
Shares, the Company shall have the Right of First Refusal with respect to all
(and not less than all) of such Shares. If the Optionee desires to transfer
Shares acquired under this Agreement, the Optionee shall give a written Transfer
Notice to the Company describing fully the proposed transfer, including the
number of Shares proposed to be transferred, the proposed transfer price, the
name and address of the proposed Transferee and proof satisfactory to the
Company that the proposed sale or transfer will not violate any applicable
federal or state securities laws. The Transfer Notice shall be signed both by
the Optionee and by the proposed Transferee and must constitute a binding
commitment of both parties to the transfer of the Shares. The Company shall have
the right to purchase all, and not less than all, of the Shares on the terms of
the proposal described in the Transfer Notice (subject, however, to any change
in such terms permitted under Subsection (b) below) by delivery of a notice
of exercise of the Right of First Refusal within 30 days after the date when the
Transfer Notice was received by the Company. The Company’s rights under this
Subsection (a) shall be freely assignable, in whole or in
part.

 







6












 

(b)  Transfer
of Shares. If the
Company fails to exercise its Right of First Refusal within 30 days after
the date when it received the Transfer Notice, the Optionee may, not later than
90 days following receipt of the Transfer Notice by the Company, conclude a
transfer of the Shares subject to the Transfer Notice on the terms and
conditions described in the Transfer Notice, provided that any such sale is made
in compliance with applicable federal and state securities laws and not in
violation of any other contractual restrictions to which the Optionee is bound.
Any proposed transfer on terms and conditions different from those described in
the Transfer Notice, as well as any subsequent proposed transfer by the
Optionee, shall again be subject to the Right of First Refusal and shall require
compliance with the procedure described in Subsection (a) above. If the
Company exercises its Right of First Refusal, the parties shall consummate the
sale of the Shares on the terms set forth in the Transfer Notice within
60 days after the date when the Company received the Transfer Notice (or
within such longer period as may have been specified in the Transfer Notice);
provided, however, that in the event the Transfer Notice provided that payment
for the Shares was to be made in a form other than cash or cash equivalents paid
at the time of transfer, the Company shall have the option of paying for the
Shares with cash or cash equivalents equal to the present value of the
consideration described in the Transfer Notice.

 

(c)  Additional
Shares or Substituted Securities. In the
event of the declaration of a stock dividend, the declaration of an
extraordinary dividend payable in a form other than stock, a spin-off, a stock
split, an adjustment in conversion ratio, a recapitalization or a similar
transaction affecting the Company’s outstanding securities without receipt of
consideration, any new, substituted or additional securities or other property
(including money paid other than as an ordinary cash dividend) which are by
reason of such transaction distributed with respect to any Shares subject to
this Section 8 or into which such Shares thereby become convertible shall
immediately be subject to this Section 8. Appropriate adjustments to
reflect the distribution of such securities or property shall be made to the
number and/or class of the Shares subject to this Section 8.

 

(d)  Termination
of Right of First Refusal. Any
other provision of this Section 8 notwithstanding, in the event that the
Stock is readily tradable on an established securities market when the Optionee
desires to transfer Shares, the Company shall have no Right of First Refusal,
and the Optionee shall have no obligation to comply with the procedures
prescribed by Subsections (a) and (b) above.

 

(e)  Permitted
Transfers. This
Section 8 shall not apply to (i) a transfer by beneficiary
designation, will or intestate succession or (ii) a transfer to the
Optionee’s spouse, children or grandchildren or to a trust established by the
Optionee for the benefit of the Optionee or the Optionee’s spouse, children or
grandchildren, provided in either case that the Transferee agrees in writing on
a form prescribed by the Company to be bound by all provisions of this
Agreement. If the Optionee transfers any Shares acquired under this Agreement,
either under this Subsection (e) or after the Company has failed to
exercise the Right of First Refusal, then this Section 8 shall apply to the
Transferee to the same extent as to the Optionee.

 







7












 

(f)  Termination
of Rights as Stockholder. If the
Company makes available, at the time and place and in the amount and form
provided in this Agreement, the consideration for the Shares to be purchased in
accordance with this Section 8, then after such time the person from whom
such Shares are to be purchased shall no longer have any rights as a holder of
such Shares (other than the right to receive payment of such consideration in
accordance with this Agreement). Such Shares shall be deemed to have been
purchased in accordance with the applicable provisions hereof, whether or not
the certificate(s) therefor have been delivered as required by this
Agreement.

 

SECTION
9.  
LEGALITY OF INITIAL ISSUANCE.

 

No Shares
shall be issued upon the exercise of this option unless and until the Company
has determined that:

 

(a)  It and
the Optionee have taken any actions required to register the Shares under the
Securities Act or to perfect an exemption from the registration requirements
thereof;

 

(b)  Any
applicable listing requirement of any stock exchange or other securities market
on which Stock is listed has been satisfied; and

 

(c)  Any other
applicable provision of state or federal law has been satisfied. 

 

SECTION
10.  
NO REGISTRATION RIGHTS.

 

The
Company may, but shall not be obligated to, register or qualify the sale of
Shares under the Securities Act or any other applicable law. The Company shall
not be obligated to take any affirmative action in order to cause the sale of
Shares under this Agreement to comply with any law.

 

SECTION
11.  
RESTRICTIONS ON TRANSFER.

 

(a)  Securities
Law Restrictions.
Regardless of whether the offering and sale of Shares under the Plan have been
registered under the Securities Act or have been registered or qualified under
the securities laws of any state, the Company at its discretion may impose
restrictions upon the sale, pledge or other transfer of such Shares (including
the placement of appropriate legends on stock certificates or the imposition of
stop-transfer instructions) if, in the judgment of the Company, such
restrictions are necessary or desirable in order to achieve compliance with the
Securities Act, the securities laws of any state or any other law.

 

(b)  Market
Stand-Off. In
connection with any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the
Securities Act, including the Company’s initial public offering, the Optionee
shall not directly or indirectly sell, make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any option or other contract for the
purchase of, purchase any option or other contract for the sale of, or otherwise
dispose of or transfer, or agree to engage in any of the foregoing transactions
with respect to, any Shares acquired under this Agreement without the prior
written consent of the Company or its underwriters. Such restriction (the
“Market Stand-Off”) shall be in effect for such period of time following the
date of the final prospectus for the offering as may be requested by the Company
or such underwriters. In no event, however, shall such period exceed 180 days.
The Market Stand-Off shall in any event terminate two years after the date of
the Company’s initial public offering. In the event of the declaration of a
stock dividend, a spin-off, a stock split, an adjustment in conversion ratio, a
recapitalization or a similar transaction affecting the Company’s outstanding
securities without receipt of consideration, any new, substituted or additional
securities which are by reason of such transaction distributed with respect to
any Shares subject to the Market Stand-Off, or into which such Shares thereby
become convertible, shall immediately be subject to the Market Stand-Off. In
order to enforce the Market Stand-Off, the Company may impose stop-transfer
instructions with respect to the Shares acquired under this Agreement until the
end of the applicable stand-off period. The Company’s underwriters shall be
beneficiaries of the agreement set forth in this Subsection (b). This
Subsection (b) shall not apply to Shares registered in the public offering
under the Securities Act, and the Optionee shall be subject to this Subsection
(b) only if the directors and officers of the Company are subject to similar
arrangements.

 







8












 

(c)  Investment
Intent at Grant. The
Optionee represents and agrees that the Shares to be acquired upon exercising
this option will be acquired for investment, and not with a view to the sale or
distribution thereof.

 

(d)  Investment
Intent at Exercise. In the
event that the sale of Shares under the Plan is not registered under the
Securities Act but an exemption is available which requires an investment
representation or other representation, the Optionee shall represent and agree
at the time of exercise that the Shares being acquired upon exercising this
option are being acquired for investment, and not with a view to the sale or
distribution thereof, and shall make such other representations as are deemed
necessary or appropriate by the Company and its counsel.

 

(e)  Legends. All
certificates evidencing Shares purchased under this Agreement shall bear the
following legend:

 

“THE
SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR
IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE TERMS OF A WRITTEN
AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER OF THE SHARES (OR THE
PREDECESSOR IN INTEREST TO THE SHARES). SUCH AGREEMENT GRANTS TO THE COMPANY
CERTAIN RIGHTS OF FIRST REFUSAL UPON AN ATTEMPTED TRANSFER OF THE SHARES AND
CERTAIN REPURCHASE RIGHTS UPON TERMINATION OF SERVICE WITH THE COMPANY. THE
SECRETARY OF THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY OF SUCH
AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.”

 







9












 

All
certificates evidencing Shares purchased under this Agreement in an unregistered
transaction shall bear the following legend (and such other restrictive legends
as are required or deemed advisable under the provisions of any applicable law):


 

“THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT
AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.”

 

(f)  Removal
of Legends. If, in
the opinion of the Company and its counsel, any legend placed on a stock
certificate representing Shares sold under this Agreement is no longer required,
the holder of such certificate shall be entitled to exchange such certificate
for a certificate representing the same number of Shares but without such
legend.

 

(g)  Administration. Any
determination by the Company and its counsel in connection with any of the
matters set forth in this Section 11 shall be conclusive and binding on the
Optionee and all other persons.

 

SECTION
12.  
ADJUSTMENT OF SHARES.

 

In the
event of any transaction described in Section 8(a) of the Plan, the terms
of this option (including, without limitation, the number and kind of Shares
subject to this option and the Exercise Price) shall be adjusted as set forth in
Section 8(a) of the Plan. In the event that the Company is a party to a
merger or consolidation, this option shall be subject to the agreement of merger
or consolidation, as provided in Section 8(b) of the Plan.

 

SECTION
13.  
MISCELLANEOUS PROVISIONS.

 

(a)  Rights
as a Stockholder. Neither
the Optionee nor the Optionee’s representative shall have any rights as a
stockholder with respect to any Shares subject to this option until the Optionee
or the Optionee’s representative becomes entitled to receive such Shares by
filing a notice of exercise and paying the Purchase Price pursuant to
Sections 4 and 5.

 

(b)  No
Retention Rights. Nothing
in this option or in the Plan shall confer upon the Optionee any right to
continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Company (or any Parent or
Subsidiary employing or retaining the Optionee) or of the Optionee, which rights
are hereby expressly reserved by each, to terminate his or her Service at any
time and for any reason, with or without cause.

 

(c)  Notice. Any
notice required by the terms of this Agreement shall be given in writing and
shall be deemed effective upon personal delivery or upon deposit with the United
States Postal Service, by registered or certified mail, with postage and fees
prepaid. Notice shall be addressed to the Company at its principal executive
office and to the Optionee at the address that he or she most recently provided
to the Company.

 







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(d)  Entire
Agreement. The
Notice of Stock Option Grant, this Agreement and the Plan constitute the entire
contract between the parties hereto with regard to the subject matter hereof.
They supersede any other agreements, representations or understandings (whether
oral or written and whether express or implied) which relate to the subject
matter hereof.

 

(e)  Choice
of Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of California, as such laws are applied to contracts entered into and
performed in such State.

 

SECTION
14.  
SPECIAL PROVISIONS FOR RESIDENTS OF ISRAEL.

 

(a)  Scope. This
Section 14 shall apply only if the Optionee is an Israeli resident
(“Israeli Optionee”) and shall be governed by, and interpreted in accordance
with, the laws of the State of Israel.

 

(b)  Applicable
Tax Law. The
provisions of the Plan and this Agreement shall not apply to an Israeli Optionee
to the extent that they address (i) the Code or other laws of the United
States or any State thereof, (ii) the tax consequences of this option under
the laws of the United States, (iii) the qualification of this option as an
ISO or Nonstatutory Option or (iv) eligibility to receive each type of
option. All options granted to an Israeli Optionee shall be granted pursuant to
Section 3(i) of the Israeli Income Tax Ordinance.

 

(c)  Trustee. If
designated in the Notice of Stock Option Grant as a “Section 3(i) Option,”
then this Agreement may be deposited with a trustee (the “Trustee”) selected by
the Board of Directors. If the Board of Directors chooses to deposit this option
with the Trustee, then (i) this option shall be exercised in accordance
with the procedures agreed upon by the Company and the Trustee in a trust
agreement executed between them and, if applicable, a Subsidiary (the “Trust
Agreement”), (ii) the Trustee shall hold this option in trust pursuant to
the Company’s instructions until exercised by the Optionee, (iii) if
determined by the Board of Directors, the Trustee shall be responsible for
withholding any taxes to which the Optionee may become liable upon the exercise
of this option, and the Trust Agreement shall govern such withholding
requirement, and (iv) grants of options shall be made pursuant to the Trust
Agreement, in addition to being made pursuant to the provisions of the Plan and
the Stock Option Agreement.

 

SECTION
15.  
DEFINITIONS.

 

(a)  “Agreement” shall
mean this Stock Option Agreement.

 

(b)  “Board
of Directors” shall
mean the Board of Directors of the Company, as constituted from time to time or,
if a Committee has been appointed, such Committee.

 

(c)  “Cause” shall
mean (i) the Optionee’s theft, dishonesty, or falsification of any Company
documents or records, (ii) the Optionee’s improper use or disclosure of the
Company’s confidential or proprietary information, (iii) any action by the
optionee that has a detrimental effect on the Company’s reputation or business,
(iv) the Optionee’s failure or inability to perform any reasonable assigned
duties after written notice from the Company of, and a reasonable opportunity to
cure, such failure or inability, (v) any material breach by the Optionee of
any employment agreement between the Optionee and the Company, which breach is
not cured pursuant to the terms of such agreement, or (vi) the Optionee’s
conviction (including any plea of guilty or nolo
contendere) of any
criminal act that impairs the Optionee’s ability to perform his or her duties
with the Company.

 








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(d)  “Change
in Control” shall
mean:

 

(i)  The
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if persons who were not
stockholders of the Company immediately prior to such merger, consolidation or
other reorganization own immediately after such merger, consolidation or other
reorganization 50% or more of the voting power of the outstanding securities of
each of (A) the continuing or surviving entity and (B) any direct or
indirect parent corporation of such continuing or surviving entity;
or

 

(ii)  The sale,
transfer or other disposition of all or substantially all of the Company’s
assets.

 

A
transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company’s incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company’s securities immediately before such transaction.

 

(e)  “Code” shall
mean the Internal Revenue Code of 1986, as amended.

 

(f)  “Committee” shall
mean a committee of the Board of Directors, as described in Section 2 of
the Plan.

 

(g)  “Company” shall
mean Atomica Corporation, a Delaware corporation.

 

(h)  “Consultant” shall
mean a person who performs bona fide services for the Company, a Parent or a
Subsidiary as a consultant or advisor, excluding Employees and Outside
Directors.

 

(i)  “Date
of Grant” shall
mean the date specified in the Notice of Stock Option Grant, which date shall be
the later of (i) the date on which the Board of Directors resolved to grant this
option or (ii) the first day of the Optionee’s Service. 

 

(j)  “Disability” shall
mean that the Optionee is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment.

 

(k)  “Employee” shall
mean any individual who is a common-law employee of the Company, a Parent or a
Subsidiary.

 

(l)  “Exercise
Price” shall
mean the amount for which one Share may be purchased upon exercise of this
option, as specified in the Notice of Stock Option Grant.

 







12












 

(m)  “Fair
Market Value” shall
mean the fair market value of a Share, as determined by the Board of Directors
in good faith. Such determination shall be conclusive and binding on all
persons.

 

(n)  “Involuntary
Termination” shall
mean the termination of the Optionee’s Service by reason of:

 

(i)  The
involuntary discharge of the Optionee by the Company (or the Parent or
Subsidiary employing him or her) for reasons other than Cause; or

 

(ii)  The
resignation of the Optionee following (A) a change in his or her position
with the Company (or the Parent or Subsidiary employing him or her) that
materially reduces his or her level of authority or responsibility, (B) a
reduction in his or her aggregate compensation (including base salary, fringe
benefits and participation in bonus or other incentive programs based on
corporate performance) or (C) receipt of notice that his or her principal
workplace will be relocated more than 30 miles.

 

(o)  “ISO” shall
mean an employee incentive stock option described in Section 422(b) of the
Code.

 

(p)  “Nonstatutory
Option” shall
mean a stock option not described in Sections 422(b) or 423(b) of the Code
(including a stock option described in Section 14).

 

(q)  “Notice
of Stock Option Grant” shall
mean the document so entitled to which this Agreement is attached.

 

(r)  “Optionee” shall
mean the person named in the Notice of Stock Option Grant.

 

(s)  “Outside
Director” shall
mean a member of the Board of Directors who is not an Employee.

 

(t)  “Parent” shall
mean any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, if each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such
chain.

 

(u)  “Plan” shall
mean the Atomica Corporation 2000 Stock Plan, as in effect on the Date of
Grant.

 

(v)  “Purchase
Price” shall
mean the Exercise Price multiplied by the number of Shares with respect to which
this option is being exercised.

 

(w)  “Restricted
Share” shall
mean a Share that is subject to the Right of Repurchase.

 







13












 

(x)  “Right
of First Refusal” shall
mean the Company’s right of first refusal described in
Section 8.

 

(y)  “Right
of Repurchase” shall
mean the Company’s right of repurchase described in Section 7.

 

(z)  “Securities
Act” shall
mean the Securities Act of 1933, as amended.

 

(aa)  “Service” shall
mean service as an Employee, Outside Director or Consultant.

 

(bb)  “Share” shall
mean one share of Stock, as adjusted in accordance with Section 8 of the
Plan (if applicable).

 

(cc)  “Stock” shall
mean the Common Stock of the Company, with a par value of $0.001 per
Share.

 

(dd)  “Subsidiary” shall
mean any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.

 

(ee)  “Transferee” shall
mean any person to whom the Optionee has directly or indirectly transferred any
Share acquired under this Agreement.

 

(ff)  “Transfer
Notice” shall
mean the notice of a proposed transfer of Shares described in
Section 8.



 







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