NONQUALIFIED STOCK OPTION AGREEMENT
CIPRICO INC.
1999 AMENDED AND RESTATED STOCK OPTION PLAN
THIS AGREEMENT, made effective as of this ______ day of
______________,_____, by and between Ciprico Inc., a Delaware corporation (the
"Company"), and _____________________ ("Optionee").
W I T N E S S E T H:
WHEREAS, Optionee on the date hereof is a key employee, officer,
consultant, nonemployee director or advisor of the Company or one of its
Subsidiaries; and
WHEREAS, the Company wishes to grant a nonqualified stock option to
Optionee to purchase shares of the Company's Common Stock pursuant to the
Company's 1999 Amended and Stock Option Plan (the "Plan"); and
WHEREAS, the Administrator has authorized the grant of a nonqualified
stock option to Optionee and has determined that, as of the effective date of
this Agreement, the fair market value of the Company's Common Stock is
$_________per share;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Optionee on the date
set forth above (the "Date of Grant"), the right and option (the "Option") to
purchase all or portions of an aggregate of __________ shares of Common Stock at
a per share price of $______ on the terms and conditions set forth herein, and
subject to adjustment pursuant to Section 12 of the Plan. This Option is a
nonqualified stock option and will not be treated as an incentive stock option,
as defined under Section 422, or any successor provision, of the Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder.
2. Duration and Exercisability.
a. The term during which this Option may be exercised shall
terminate on ________________, _____ except as otherwise provided in Paragraphs
2(b) through 2(e) below. This Option shall become exercisable according to the
following schedule:
Number of Shares Date Exercisable
Once the Option becomes exercisable to the extent of one hundred percent (100%)
of the aggregate number of shares specified in Paragraph 1, Optionee may
continue to exercise this Option under the terms and conditions of this
Agreement until the termination of the Option as provided herein. If Optionee
does not purchase upon an exercise of this Option the full number of shares
which Optionee is then entitled to purchase, Optionee may purchase upon any
subsequent exercise prior to this Option's termination such previously
unpurchased shares in addition to those Optionee is otherwise entitled to
purchase.
b. Termination of Relationship (other than Change of Control,
Disability or Death). If Optionee ceases to be an employee, consultant,
nonemployee director or an advisor of the Company or any Subsidiary for any
reason other than because of a "change of control transaction" as described in
Paragraph 2(c) or because of disability or death, this Option shall completely
terminate on the earlier of (i) the close of business on the three-month
anniversary date of the termination of all such relationships, and (ii) the
expiration date of this Option stated in Paragraph 2(a) above. In such period
following such termination, this Option shall be exercisable only to the extent
the Option was exercisable on the vesting date immediately preceding the date on
which all of Optionee's relationships with the Company or Subsidiary have
terminated, but had not previously been exercised. To the extent this Option was
not exercisable upon the termination of such relationship, or if Optionee does
not exercise the Option within the time specified in this Paragraph 2(b), all
rights of Optionee under this Option shall be forfeited.
c. Change of Control. Except to the extent and as provided
below with respect to termination of employment of an affiliate in connection
with a transaction accounted for as a pooling of interests, in the event of the
sale of substantially all of the assets of the Company or change in control
transaction, the Company through its board of directors as more fully set forth
in Section 11 of the Plan, may provide in its discretion for the acceleration,
termination, exchange or continuation of this Option.
If (i) Optionee ceases to be an employee, consultant,
nonemployee director or advisor of the Company or any Subsidiary because of a
"change of control transaction," (ii) such transaction is treated as a "pooling
of interests" under generally accepted accounting principles, and (iii) Optionee
is an "affiliate" of the Company or Subsidiary under applicable legal and
accounting principles, this Option shall completely terminate on the later of
(A) the close of business on the three-month anniversary date of the termination
of all such relationships, and (B) the close of business on the date that is
sixty (60) days after the date on which affiliates are no longer restricted from
selling, transferring or otherwise disposing of the shares of stock received in
the change of control transaction. In such period following such termination,
this Option shall be exercisable only to the extent the Option was exercisable
on the vesting date immediately preceding the date on which all of Optionee's
relationships with the Company or Subsidiary have terminated, but had not
previously been exercised, unless the exercisability of this Option has been
accelerated as provided in Section 11 of the Plan. To the extent this Option was
not exercisable upon such termination of such relationships, or if Optionee does
not exercise the Option within the time specified in this Paragraph 2(c), all
rights of Optionee under this Option shall be forfeited.
For purposes of this Paragraph 2(c), a "change of control
transaction" means an acquisition of the Company through the sale of
substantially all of the Company's assets and the consequent discontinuance
of its business or through a merger, consolidation, exchange, reorganization,
reclassification, extraordinary dividend, divestiture or liquidation of the
Company.
d. Disability. If Optionee ceases to be an employee,
consultant, nonemployee director or advisor of the Company or any Subsidiary
because of disability (as such term is defined in Code Section 22(e)(3), or any
successor provision), this Option shall completely terminate on the earlier of
(i) the close of business on the six-month anniversary date of the termination
of all such relationships, and (ii) the expiration date under this Option stated
in Paragraph 2(a) above. In such period following such termination, this Option
shall be exercisable only to the extent the Option was exercisable on the
vesting date immediately preceding the termination of all of Optionee's
relationships. If Optionee does not exercise the Option within the time
specified in this Paragraph 2(d), all rights of Optionee under this Option shall
be forfeited.
e. Death. In the event of Optionee's death, this Option shall
terminate on the earlier of (i) the close of business on the twelve-month
anniversary date of the date of Optionee's death, and (ii) the expiration date
of this Option stated in Paragraph 2(a) above. In such period following
Optionee's death, this Option may be exercised by the person or persons to whom
Optionee's rights under this Option shall have passed by Optionee's will or by
the laws of descent and distribution only to the extent the Option was
exercisable on the vesting date immediately preceding the date of Optionee's
death. If such person or persons fail to exercise this Option within the time
specified in this Paragraph 2(e), all rights under this Option shall be
forfeited.
3. Manner of Exercise.
a. General. The Option may be exercised only by Optionee (or
other proper party in the event of death or incapacity), subject to the
conditions of the Plan and subject to such other administrative rules as the
Administrator may deem advisable, by delivering within the option period written
notice of exercise to the Company at its principal office. The notice shall
state the number of shares as to which the Option is being exercised and shall
be accompanied by payment in full of the option price for all shares designated
in the notice. The exercise of the Option shall be deemed effective upon receipt
of such notice by the Company and upon payment that complies with the terms of
the Plan and this Agreement. The Option may be exercised with respect to any
number or all of the shares as to which it can then be exercised and, if
partially exercised, may be exercised as to the unexercised shares any number of
times during the option period as provided herein.
b. Form of Payment. Subject to the approval of the
Administrator, payment of the option price by Optionee shall be in the form of
cash, personal check, certified check or previously acquired shares of Common
Stock of the Company, or any combination thereof. Any stock so tendered as part
of such payment shall be valued at its Fair Market Value as provided in the
Plan. For purposes of this Agreement, "previously acquired shares of Common
Stock" shall include shares of Common Stock that are already owned by Optionee
at the time of exercise.
c. Stock Transfer Records. As soon as practicable after the
effective exercise of all or any part of the Option, Optionee shall be recorded
on the stock transfer books of the Company as the owner of the shares purchased,
and the Company shall deliver to Optionee one or more duly issued stock
certificates evidencing such ownership. All requisite original issue or transfer
documentary stamp taxes shall be paid by the Company.
4. Miscellaneous.
a. Rights as Shareholder. This Agreement shall not confer on
Optionee any right with respect to the continuance of any relationship with the
Company or any of its Subsidiaries, nor will it interfere in any way with the
right of the Company to terminate any such relationship. Optionee shall have no
rights as a shareholder with respect to shares subject to this Option until such
shares have been issued to Optionee upon exercise of this Option. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property), distributions or other rights for which the
record date is prior to the date such shares are issued, except as provided in
Section 12 of the Plan.
b. Securities Law Compliance. The exercise of all or any parts
of this Option shall only be effective at such time as counsel to the Company
shall have determined that the issuance and delivery of Common Stock pursuant to
such exercise will not violate any state or federal securities or other laws.
Optionee may be required by the Company, as a condition of the effectiveness of
any exercise of this Option, to agree in writing that all Common Stock to be
acquired pursuant to such exercise shall be held, until such time that such
Common Stock is registered and freely tradable under applicable state and
federal securities laws, for Optionee's own account without a view to any
further distribution thereof and that such shares will be not transferred or
disposed of except in compliance with applicable state and federal securities
laws.
c. Mergers, Recapitalizations, Stock Splits, Etc. Pursuant and
subject to Section 12 of the Plan, certain changes in the number or character of
the Common Stock of the Company (through sale, merger, consolidation, exchange,
reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in Optionee's rights with
respect to any unexercised portion of the Option (i.e., Optionee shall have such
"anti-dilution" rights under the Option with respect to such events, but shall
not have "preemptive" rights).
d. Shares Reserved. The Company shall at all times during the
option period reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of this Agreement.
e. Withholding Taxes. In order to permit the Company to comply
with all applicable federal or state income tax laws or regulations, the Company
may take such action as it deems appropriate to insure that, if necessary, all
applicable federal or state payroll, income or other taxes are withheld from any
amounts payable by the Company to Optionee. If the Company is unable to withhold
such federal and state taxes, for whatever reason, Optionee hereby agrees to pay
to the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal or state law. Optionee may, subject to the
approval and discretion of the Administrator or such administrative rules it may
deem advisable, elect to have all or a portion of such tax withholding
obligations satisfied by delivering shares of the Company's Common Stock having
a fair market value equal to such obligations.
f. Transferability of Options. Optionee may, for no
consideration, transfer this Option to a member of Optionee's immediate family,
to a trust for the benefit of Optionee's immediately family member(s) or to a
partnership in which such family member(s) are the only partners. The family
member to whom, or the trust or partnership to which, this Option has been
transferred shall be subject to all terms and conditions set forth herein, and
shall not subsequently assign or transfer this Option, either voluntarily or
involuntarily, unless such transfer is to another family member, trust or
partnership which meets the requirements of this Paragraph 4(f). If Optionee
does not transfer this Option to such a family member, trust or partnership,
this Option shall be exercisable only by Optionee or by Optionee's guardian or
other legal representative and, upon Optionee's death, shall be exercisable by
the person or persons to whom Optionee's rights under this Option have passed by
will or by the laws of descent and distribution.
g. 1999 Amended and Restated Stock Option Plan. The Option
evidenced by this Agreement is granted pursuant to the Plan, a copy of which
Plan has been made available to Optionee and is hereby incorporated into this
Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. The Plan governs this Option and, in the
event of any questions as to the construction of this Agreement or in the event
of a conflict between the Plan and this Agreement, the Plan shall govern, except
as the Plan otherwise provides.
h. Accounting Compliance. Optionee agrees that, in the event a
"change of control transaction" (as defined in Paragraph 2(c) above) is treated
as a "pooling of interests" under generally accepted accounting principles and
Optionee is an "affiliate" of the Company or any Subsidiary (as defined in
applicable legal and accounting principles) at the time of such change of
control transaction, Optionee will comply with all requirements of Rule 145 of
the Securities Act of 1933, as amended, and the requirements of such other legal
or accounting principles, and will execute any documents necessary to ensure
such compliance.
i. Scope of Agreement. This Agreement shall bind and inure to
the benefit of the Company and its successors and assigns and Optionee and any
successor or successors of Optionee permitted by Paragraph 4(f) above.
j. Arbitration. Any dispute arising out of or relating to this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of any
such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney
who has practiced securities or business litigation for at least 10 years. If
the parties cannot agree on an arbitrator within 20 days, any party may request
that the chief judge of the District Court for Hennepin County, Minnesota,
select an arbitrator. Arbitration will be conducted pursuant to the provisions
of this Agreement, and the commercial arbitration rules of the American
Arbitration Association, unless such rules are inconsistent with the provisions
of this Agreement and without submitting the dispute to such Association.
Limited civil discovery shall be permitted for the production of documents and
taking of depositions. Unresolved discovery disputes may be brought to the
attention of the arbitrator who may dispose of such dispute. The arbitrator
shall have the authority to award any remedy or relief that a court of this
state could order or grant; provided, however, that punitive or exemplary
damages shall not be awarded. The arbitrator may award to the prevailing party,
if any, as determined by the arbitrator, all of its costs and fees, including
the arbitrator's fees, administrative fees, travel expenses, out-of-pocket
expenses and reasonable attorneys' fees. Unless otherwise agreed by the parties,
the place of any arbitration proceedings shall be Hennepin County, Minnesota.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CIPRICO INC.
By:________________________________________
Its:____________________________________
___________________________________________
Optionee