Exhibit 10.5
NEOWARE SYSTEMS, INC.
2004 EQUITY INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
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FOR OPTIONEES RESIDING IN FRANCE
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Neoware Systems, Inc. (the "Company") hereby grants to _______________
(the "Optionee") an option (the "Option") to purchase a total of ____________
shares of the Company's Common Stock, at the price and on the terms set forth
herein, and in all respects subject to the terms and provisions of the Neoware
Systems, Inc. 2004 Equity Incentive Plan, as amended (the "Plan"), applicable to
Non-Qualified Stock Options, which terms and provisions are incorporated by
reference herein. Unless otherwise defined herein, capitalized terms used but
not defined herein shall have the meanings given to them in the Plan. In the
event of any conflict between the terms and conditions of the Plan and those set
forth herein, the terms of set forth herein shall govern and be determinative.
1. NATURE OF THE OPTION. The Company intends that the Option granted
hereunder shall qualify for the favorable tax and social insurance treatment
applicable to stock options that comply with Articles L 225-177 to L 225-186 of
the French Commercial Code.
2. DATE OF GRANT. The Option is granted as of the ___________, 200_
(the "Date of Grant").
3. TERM OF OPTION. The Option shall have a term of ten years from the
Date of Grant and shall terminate at 5:00 p.m. on ______________, 200_ unless it
is terminated at an earlier date pursuant to the provisions of this Agreement or
the Plan.
4. OPTION EXERCISE PRICE. The Option exercise price is $_____ per
Share, which is equal to the greater of: (i) ninety-five percent (95%) of the
average closing price of the Common Stock during the twenty (20) trading days
preceding the Date of Grant of the Option and (ii) one hundred percent (100%) of
the Fair Market Value of the Common Stock on the Date of Grant of such Option.
5. EXERCISE OF OPTION.
5.1 VESTING. Subject to Sections 6.7.4(b) and 12 of the Plan,
and except as the Committee or the Board may accelerate the vesting of the
Option in its sole discretion, the Option shall become vested and will become
exercisable during its term only in accordance with the terms and provisions of
the Plan and this Award Agreement, over a period of four years, with the Option
becoming exercisable with respect to 25% of the shares subject to the Option on
the first, second, third and fourth anniversaries, respectively, of the Date of
Grant, until the Option is exercisable with respect to 100% of the shares;
provided that, subject to Section 6.7.4(b) of the Plan, vesting shall cease upon
the Optionee's termination of employment or other Service.
5.2 RIGHT TO EXERCISE. Subject to the vesting provisions of
Section 5.1 above and the termination provisions of Section 6.7 of the Plan, the
Option may be exercised in whole or in part at any time and from time to time
during the term of the Option. Any portion of the Option that is not vested is
not exercisable. The unvested portion of the Option may not be exercised until
it becomes vested in accordance with Section 5.1.
5.3 METHOD OF EXERCISE. The Option shall be exercisable by
written notice from the Optionee to the Company setting forth the Optionee's
election to exercise the Option and the number of shares in respect of which the
Option is being exercised. Such notice shall be signed by the Optionee,
delivered to the Company in a manner consistent with Section 13.13 of the Plan,
and accompanied by payment of the exercise price. The Option shall not be
payable pursuant to a broker assisted exercise before the fourth anniversary of
the Date of Grant of the Option. The Option will be deemed to be exercised upon
the receipt by the Company of such notice and payment of the exercise price. The
Optionee shall have no right to vote or receive dividends and shall have no
other rights as a stockholder with respect to the shares with respect to which
the Option is exercised, notwithstanding the exercise of the Option, until the
issuance by the Company (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing the shares that are being issued upon exercise of the
Option. The Company will issue (or cause to be issued) such stock certificates
promptly following the exercise of the Option. The certificate or certificates
for the shares as to which the Option shall be exercised shall be registered in
the name of the Optionee and shall contain any legend as may be required under
the Plan and/or applicable law.
Where the exercise of an Option would lead the
Company or any Subsidiary to be liable for any payment, whether due to fees,
taxes or to charges of any nature whatsoever, in place of the Optionee, such
Option shall be deemed duly exercised when (a) the full payment for the shares
with respect to which the Option is exercised is executed by the Optionee and
(b) the Optionee provides the Company with either (i) the receipt acknowledging
the Optionee's payment of any such fee, tax or charge, as above described, that
would otherwise be paid by the Company, upon exercise of the Option, in place of
the Optionee or, (ii) the full payment, under the same conditions, of any amount
to be borne by the Company due to the exercise of the Option.
5.4 RESTRICTIONS ON EXERCISE. The Option may not be exercised
if the issuance of the shares upon such exercise would constitute a violation of
any applicable securities laws or other laws or regulations. As a condition to
the exercise of the Option, the Company may require the Optionee to make any
representations and warranties to the Company as may be required by the Plan or
any applicable law or regulation.
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6. SALE OR OTHER DISPOSITION OF THE SHARES. The Optionee shall not sell
or otherwise dispose of the shares issuable upon exercise of the Option
(including pursuant to a broker assisted exercise) before the fourth anniversary
of the Date of Grant of the Option. Should the Optionee breach the selling
restriction set out in this Section 6, it shall be liable for any adverse
consequences of such breach on the Company and any Subsidiary, including the
payment of any amounts which may be due by the Company and any Subsidiary to any
person in connection with such breach.
7. NO TRANSFER OF OPTION. During the lifetime of the Optionee, the
Option shall be exercisable only by the Optionee and shall not be assignable or
transferable by the Optionee, except for a transfer of the Option by will or by
the laws of descent and distribution following the Optionee's death.
8. EXERCISE PERIOD UPON DEATH. If an Optionee dies while holding the
Option, then the Option shall remain exercisable during the six-month period
following the date of the Optionee's death. During such limited period, the
Option may be exercised by the personal representative of the Optionee's estate
or by the person or persons to whom the Option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent and distribution.
9. WITHHOLDING. The Company or any person or entity which, directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, the Company ("Affiliate")of the Company reserves the
right to withhold, in accordance with any applicable laws, from any
consideration payable to the Optionee any taxes and social charges for which the
Optionee is liable as a result of the exercise of the Option or sale or other
disposition of the shares issuable upon exercise but which may be required to be
paid by the Company or any Affiliate of the Company.
10. THE PLAN. Except to the extent that this Agreement is in conflict
with the Plan, this Award Agreement is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan as it
may be amended from time to time in accordance with the terms thereof. Pursuant
to the Plan, the Board is authorized to adopt rules and regulations not
inconsistent with the Plan and this Award Agreement as it shall deem appropriate
and proper. A copy of the Plan in its present form is attached hereto and a copy
will be available for inspection during business hours by the Optionee or the
persons entitled to exercise the Option at the Company's principal office.
11. ENTIRE AGREEMENT. This Award Agreement, together with the Plan,
represents the entire agreement between the parties.
12. GOVERNING LAW. This Award Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
any conflicts of laws.
13. AMENDMENT. Subject to the provisions of the Plan, this Award
Agreement may only be amended by a writing signed by the Company and the
Optionee.
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14. TAX ADVICE. The Optionee understands that he or she may suffer
adverse tax consequences as a result of the exercise of the Option or sale or
other disposition of the shares issuable upon exercise. The Optionee represents
that he or she has consulted or will consult in due course with such tax
consultants as he or she has deemed or will deem advisable in connection
therewith. The Optionee is not relying on the Company or any Subsidiary for any
tax advice.
IN WITNESS WHEREOF, this Award Agreement has been executed by
the parties on this __________, 200_.
NEOWARE SYSTEMS, INC.
By:
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Name:
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Title:
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CERTIFICATION AND ACKNOWLEDGMENT
OF STOCK OPTION GRANT
UNDER
NEOWARE SYSTEMS, INC. 2004 EQUITY PLAN
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The Optionee hereby acknowledges receipt of the Stock Option Award Agreement
dated _____________, 200_ ("Agreement"), and the Neoware Systems, Inc. 2004
Equity Plan ("Plan"), a copy of which is attached to the Agreement, and
certifies and represents that he or she has read and is familiar with the terms
and provisions of the Agreement and Plan, and hereby accepts the Option subject
to all of the terms and provisions of the Agreement and the Plan, to the extent
that terms and provisions in the Plan do not conflict with those in the
Agreement. The Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Board or the Committee concerning the
Plan.
Signature:
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Name:
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Date: _______________
Please return this certification to the Company within 10 days of receipt.
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