EXHIBIT 99.3
FORM OF STOCK OPTION GRANT NOTICE
Open Interface North America, Inc. (the Company), pursuant to the Open Interface North America,
Inc. 2001 Stock Option Plan (the Plan), hereby grants to (the Optionee) a
nonqualified stock option to purchase the aggregate number of shares of the Companys common stock
(Shares), subject to all of the terms and conditions set forth below and in the attached Stock
Option Agreement (the Agreement). The Option is a nonqualified stock option and is not intended
to qualify for the federal income tax benefits available to an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code). Except as
specifically provided in the Agreement, the term Company as used in this grant notice (Grant
Notice) and in the Agreement shall include any successor or any parent corporation.
Optionee:
Option Type: Nonqualified
Shares Subject to Option:
Date of Grant: December , 2007. The Option grant is made contingent upon the occurrence of the
Effective Time (as defined in that certain Agreement and Plan of Reorganization, dated as of
December , 2007 (the Merger Agreement), by and among the Company, QUALCOMM Incorporated, a
Delaware corporation (Parent), Open Interface North America, an Acquisition Corporation (Merger
Sub) and the Holders Agent defined therein).
Expiration Date: December , 2017
Exercise Price Per Share: $ per share
Vesting Schedule
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Exercisable Shares |
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Full Vesting Date |
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Expiration Date** |
«Shares_Period_1»
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«Vest_Date_Period_1»
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«Expiration_Date_Period_1» |
*«Shares_Period_2»
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«Vest_Date_Period_2»
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«Expiration_Date_Period_2» |
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* |
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These Shares vest on each monthly anniversary date after [Vesting Date 1] as to 1/60th of the
total shares granted. However, if the Date of Grant is on the 30th of the month, subsequent
monthly vesting will occur on the last day of each month after [Vesting Date 1] as to 1/60th
of the total shares granted. |
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As an administrative matter, the vested portion of this Option may be exercised only until
the close of the Nasdaq Global Select Market on the Expiration Date or the termination date
set forth under Section 2.5 of the Agreement or, if such date is not a trading day on the
Nasdaq Global Select Market, the last trading day before such date. Any later attempt to
exercise this Option will not be honored. For example, if Optionee ceases to perform services
for the Company as provided in Section 2.5(a)(vii) of the Agreement and the date thirty (30)
days after the date of termination of service is Monday, July 4 (a holiday on which the Nasdaq
Global Select Market is closed), Optionee must exercise the exercisable portion of this Option
by 4.00 p.m. U.S. Eastern Daylight Time on Friday, July 1. |
Additional Terms/Acknowledgments: Capitalized terms used but not defined in this Grant Notice and
in the Agreement shall have the meanings given thereto in the Merger Agreement. The Optionee
acknowledges receipt of this Grant Notice, the Agreement and a copy of the Plan, and represents
that the Optionee has read, understands, accepts and agrees to the terms and conditions of this
Grant Notice, the Agreement and the Plan. Optionee hereby accepts the Option subject to all of its
terms and conditions and further acknowledges that as of the Date of Grant, this Grant Notice, the
Stock Option Agreement and the Plan set forth the entire understanding between Optionee and the
Company regarding the acquisition of Shares of the Company and supersede all prior oral and written
agreements pertaining to this particular option. The Optionee also understands that the Option
will not be exercisable until the Company has received an exercise agreement or similar notice
(Notice) in the form required by the Company from the Optionee.
Note: The Optionee is solely responsible for any election to exercise the Option, and the Company
shall have no obligation whatsoever to provide notice to the Optionee of any matter, including, but
not limited to, the date the Option terminates.
Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Grant Notice and the Agreement as of the
Date of Grant set forth above.
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Open Interface North America, Inc. |
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By: |
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Name: |
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Title: |
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Optionee |
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By: |
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Name |
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Attachment: Stock Option Agreement
FORM OF
OPEN INTERFACE NORTH AMERICA, INC.
2001 STOCK OPTION PLAN
EMPLOYEE STOCK OPTION AGREEMENT
Pursuant to the Grant Notice (attached hereto) and this Stock Option Agreement, Open Interface
North America, Inc. (the Company) has granted you an Option to purchase the number of shares of
the Companys common stock (Stock) indicated in the Grant Notice at the exercise price indicated
in the Grant Notice.
The details of this Option are as follows:
1. service and Vesting.
1.1 service. Notwithstanding any other provision of this Agreement, the
Company reserves the right, in its sole discretion, to determine when your service has terminated,
including in the event of any leave of absence or part-time service.
1.2 Vesting. Except as otherwise provided in the Plan or this Agreement,
this Option will vest as provided in the Grant Notice. Notwithstanding any other provision of the
Plan or this Agreement, the Company reserves the right, in its sole discretion, to suspend vesting
of this Option in the event of any leave of absence or your part-time service.
2. Exercise of the Option.
2.1 Method of Exercise. Subject to the terms of this Agreement, you may
exercise the vested portion of this Option at any time prior to the expiration of the Option by
delivering a notice of exercise in such form as may be designated by the Company from time to time
together with the exercise price to the Secretary of the Company, or to such other person as the
Company may designate, during regular business hours and prior to the expiration of the Option,
together with such additional documents as the Company may then require.
2.2 Method Of Payment. Payment of the exercise price may be by cash (or
check), or pursuant to a program developed under Regulation T as promulgated by the Federal Reserve
Board which, prior to the issuance of Stock, results in either the receipt of cash (or check) by
the Company or the receipt of irrevocable instructions to a broker which provides for the payment
of the aggregate exercise price to the Company, or a combination of the above methods, as the
Company may designate from time to time.
2.3 Tax Withholding. By exercising this Option you agree that as a
condition to any exercise of this Option, the Company may withhold from your pay and any other
amounts payable to you, or require you to enter an arrangement providing for the payment by you to
the Company of any tax withholding obligation of the Company arising by reason of (1) the exercise
of this Option; (2) the lapse of any substantial risk of forfeiture to which the Stock is subject
at the time of exercise; or (3) the disposition of Stock acquired upon such exercise.
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2.4 Responsibility For Exercise. You are responsible for taking any and all
actions as may be required to exercise this Option in a timely manner and for properly executing
any such documents as may be required for exercise in accordance with such rules and procedures as
may be established from time to time. By signing this Agreement you acknowledge that information
regarding the procedures and requirements for this exercise of the Option is available to you on
request. The Company shall have no duty or obligation to notify you of the expiration date of this
Option.
2.5 Effect of Termination of service.
(a) Option Exercisability. Subject to earlier termination of the Option as otherwise provided
herein and unless otherwise provided by the Committee in the Grant Notice, the Option shall be
exercisable after your termination of service with the Company only during the applicable time
period determined in accordance with this Section and thereafter shall terminate.
(i) Disability. If your service with the Company terminates because of your Disability (as
defined below), the Option shall continue to vest for the period of such Disability under the terms
and conditions of the Option Agreement and may be exercised by you at any time during the period of
Disability but in any event no later than the date of expiration of the Options term set forth in
Section 4 (the Option Expiration Date).
(ii) Death. If your service with the Company terminates because of your death or because of
your Disability and such termination is subsequently followed by your death, the vesting of the
Option shall be accelerated effective upon your death, and the Option may be exercised by your
legal representative or other person who acquired the right to exercise the Option by reason of
your death at any time prior to the expiration of twelve (12) months after the date of your death,
but in any event no later than the Option Expiration Date.
(iii) Normal Retirement Age. If your service with the Company terminates on or after you have
attained age 60 and completed ten (10) years of service, the Option, to the extent unexercised and
vested on the date on which your service terminates, may be exercised by you at any time prior to
the expiration of twelve (12) months after the date on which your service terminates, but in any
event no later than the Option Expiration Date. Options that have not vested as of the date on
which your service terminates will be forfeited as of your termination date.
(iv) Termination After Layoff. If your service with the Company terminates as a result of
Layoff (as defined below), then, subject to your execution of a general release of claims
satisfactory to the Company, (A) the vesting of the Option shall be accelerated effective as of the
date on which your service terminates by ten percent (10%) of the shares which would otherwise be
unvested on such date, and (B) the Option, to the extent unexercised and vested on the date on
which your service terminated, may be exercised by you (or your guardian or legal representative)
at any time prior to the expiration of six (6) months after the date on which your service
terminated, but in any event no later than the Option Expiration Date. All other unvested Options
shall be forfeited as of your termination date. Notwithstanding the foregoing, if the Company
determines that the provisions or operation of this subsection (iv) would cause the Company to
incur a compensation expense other than that
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which is known by the Company as of the date of grant, then this subsection (iv) shall be
without force or effect, and the vesting and exercisability of each outstanding Option and any
shares acquired upon the exercise thereof shall be determined under any other applicable provision
of the Grant Notice or this Option Agreement.
(v) Termination Upon Transfer to Non-Control Affiliate. If at the request of the Company, you
transfer service to a Non-Control Affiliate and your service terminates as a result, then, subject
to your execution of a general release of claims form reasonably satisfactory to the Company, the
Option, to the extent unexercised and vested on the date on which your service terminates, may be
exercised by you (or your guardian or legal representative) at any time prior to the expiration of
twelve (12) months after the date on which your service terminated, but in any event no later than
the Option Expiration Date. Options that have not vested as of the date on which your service
terminates will be forfeited as of your termination date.
(vi) Termination After Change in Control. If your service with the Company terminates as a
result of Termination After Change in Control (as defined below), then the vesting of the Option
shall be accelerated effective as of the date on which the your service terminates, and the Option,
to the extent unexercised, may be exercised by you (or your guardian or legal representative) at
any time prior to the expiration of six (6) months after the date on which your service terminates,
but in any event no later than the Option Expiration Date.
(vii) Other Termination of Service. Except as otherwise provided in Section 2.5(a)(i) through
(vi), if your service with the Company or any Participating Company terminates for any reason then
to the extent unexercised and vested on the date on which your service terminates, the Option may
be exercised by you at any time prior to the expiration of thirty (30) days after the date on which
your service terminates, but in any event no later than the Option Expiration Date. Options that
have not vested as of the date on which your service terminates will be forfeited as of your
termination date.
(b) Extension if Exercise Prevented by Law. Notwithstanding the foregoing, other than
termination for Cause, if the exercise of the Option within the applicable time periods set forth
in Section 2.5(a) is prevented by the provisions of applicable law, the Option shall remain
exercisable until three (3) months after the date you are notified by the Company that the Option
is exercisable, but in any event no later than the Option Expiration Date.
(c) Extension if Subject to Section 16(b). Notwithstanding the foregoing, other than
termination for Cause, if a sale within the applicable time periods set forth in Section 2.5(a) of
shares acquired upon the exercise of the Option would subject you to suit under Section 16(b) of
the Exchange Act, the Option shall remain exercisable until the earliest to occur of (i) the tenth
(10th) day following the date on which a sale of such shares by you would no longer be subject to
such suit, (ii) the one hundred and ninetieth (190th) day after your termination of service, or
(iii) the Option Expiration Date.
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(d) Certain Definitions.
(i) Cause shall mean any of the following: (1) your theft, dishonesty, or falsification of
any Participating Company documents or records; (2) your improper use or disclosure of a
Participating Companys confidential or proprietary information; (3) any action by you which has a
detrimental effect on a Participating Companys reputation or business; (4) your failure or
inability to perform any reasonable assigned duties after written notice from a Participating
Company of, and a reasonable opportunity to cure, such failure or inability; (5) any material
breach by you of any employment or service agreement between you and a Participating Company, which
breach is not cured pursuant to the terms of such agreement; (6) your conviction (including any
plea of guilty or nolo contendere) of any criminal act which impairs your ability to perform your
duties with a Participating Company; or (7) violation of a material Company policy.
(ii) Disability shall mean you have been determined by the Companys long-term disability
insurer as eligible for disability benefits under the long-term disability plan of the Company or
you have been determined eligible for Supplemental Security Income benefits by the Social Security
Administration of the United States of America.
(iii) Good Reason shall mean any one or more of the following:
a) without your express written consent, the assignment to you of any duties, or any
limitation of your responsibilities, substantially inconsistent with your positions, duties,
responsibilities and status with the Company immediately prior to the date of the Change in
Control;
b) without your express written consent, the relocation of the principal place of your
employment or service to a location that is more than fifty (50) miles from your principal place of
employment or service immediately prior to the date of the Change in Control, or the imposition of
travel requirements substantially more demanding of you than such travel requirements existing
immediately prior to the date of the Change in Control;
c) any failure by the Company to pay, or any material reduction by the Company of, (A) your
base salary in effect immediately prior to the date of the Change in Control (unless reductions
comparable in amount and duration are concurrently made for all other employees of the Company with
responsibilities, organizational level and title comparable to yours), or (B) your bonus
compensation, if any, in effect immediately prior to the date of the Change in Control (subject to
applicable performance requirements with respect to the actual amount of bonus compensation earned
by you);
d) any failure by the Company to (A) continue to provide you with the opportunity to
participate, on terms no less favorable than those in effect for the benefit of any employee or
service provider group which customarily includes a person holding the employment or service
provider position or a comparable position with the Company then held by you, in any benefit or
compensation plans and programs, including, but not limited to, the Companys life, disability,
health, dental, medical, savings, profit sharing, stock purchase and retirement plans, if any, in
which you were participating immediately prior to the date of the Change in Control, or their
equivalent, or (B) provide you with all other fringe benefits (or their
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equivalent) from time to time in effect for the benefit of any employee group which
customarily includes a person holding the employment or service provider position or a comparable
position with the Company Group then held by you;
e) any breach by the Company of any material agreement between you and the Company concerning
your employment; or
f) any failure by the Company to obtain the assumption of any material agreement between you
and the Company concerning your employment by a successor or assign of the Company.
(iv) Layoff shall mean the involuntary termination of your service with the Company for
reasons other than Cause, constructive termination, death, Disability, divestiture, termination
upon transfer to a non-control Affiliate, or Termination After Change in Control.
(v) Termination After Change in Control shall mean either of the following events occurring
within twenty-four (24) months after a Change in Control:
a) termination by the Company of your service with the Company for any reason other than for
Cause; or
b) your resignation for Good Reason from all capacities in which you are then rendering
service to the Company within a reasonable period of time following the event constituting Good
Reason.
Notwithstanding any provision herein to the contrary, Termination After Change in Control
shall not include any termination of your service with the Company which (1) is for Cause; (2) is a
result of your death or Disability; (3) is a result of your voluntary termination of service other
than for Good Reason; or (4) occurs prior to the effectiveness of a Change in Control.
3. Securities Law Compliance. Notwithstanding anything to the contrary
contained herein, this Option may not be exercised unless the Stock issuable upon exercise of this
Option is then registered under the Securities Act or, if such Stock is not then so registered,
the Company has determined that such exercise and issuance would be exempt from the registration
requirements of the Securities Act.
4. Termination of the Option. The term of this Option commences on the
Date of Grant (as specified in the Grant Notice) and expires and shall no longer be exercisable
upon the earliest of:
(a) the Expiration Date indicated in the Grant Notice;
(b) the tenth (10th) anniversary of the Date of Grant;
(c) the last day for exercising the Option following termination of your service as described
in Section 2.5; or
(d) a Change of Control, to the extent provided in Section 5.
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As an administrative matter, the vested portion of this Option may be exercised only until the
close of the Nasdaq Global Select Market on the applicable date indicated in this Section 4 above
or, if such date is not a trading day on the Nasdaq Global Select Market, the last trading day
before such date. Any later attempt to exercise this Option will not be honored.
5. Change in Control. In the event of a Change in Control, the surviving,
continuing, successor, or purchasing corporation or other business entity or parent thereof, as
the case may be (the Acquiring Corporation), may, without your consent, either assume the
Companys rights and obligations under this Option or substitute for this Option a substantially
equivalent option for the Acquiring Corporations stock. In the event the Acquiring Corporation
elects not to assume or substitute for this Options in connection with a Change in Control, the
exercisability and vesting of this Option and any shares acquired upon the exercise thereof held
by you, so long as your service has not terminated prior to such date, shall be accelerated,
effective as of the date ten (10) days prior to the date of the Change in Control. The exercise
or vesting of any Option and any shares acquired upon the exercise thereof that was permissible
solely by reason of this Section shall be conditioned upon the consummation of the Change in
Control. If this Option is neither assumed or substituted for by the Acquiring Corporation in
connection with the Change in Control nor exercised as of the date of the Change in Control, it
shall terminate and cease to be outstanding effective as of the date of the Change in Control.
Notwithstanding the foregoing, shares acquired upon exercise of this Option prior to the Change in
Control and any consideration received pursuant to the Change in Control with respect to such
shares shall continue to be subject to all applicable provisions of this Option Agreement except
as otherwise provided in this Option Agreement. Furthermore, notwithstanding the foregoing, if
the corporation the stock of which is subject to this Option immediately prior to an Ownership
Change Event constituting a Change in Control is the surviving or continuing corporation and
immediately after such Ownership Change Event less than fifty percent (50%) of the total combined
voting power of its voting stock is held by another corporation or by other corporations that are
members of an affiliated group within the meaning of Section 1504(a) of the Code without regard to
the provisions of Section 1504(b) of the Code, this Option shall not terminate unless the
Committee otherwise provides in its discretion.
6. Transferability. An Incentive Stock Option shall not be transferable
except by will or by the laws of descent and distribution, and shall be exercisable during the
lifetime of the person to whom the Incentive Stock Option is granted only by such person. A
vested Nonstatutory Stock Option shall not be transferable in any manner (including without
limitation, sale, alienation, anticipation, pledge, encumbrance, or assignment) other than, (i) by
will or by the laws of descent and distribution, (ii) by written designation of a beneficiary, in
a form acceptable to the Company, with such designation taking effect upon your death, (iii) by
delivering written notice to the Company, in a form acceptable to the Company (including such
representations, warranties and indemnifications as the Company shall require you to make to
protect the Companys interests and ensure that this Nonstatutory Stock Option has been
transferred under the circumstances approved by the Company), by gift to your spouse, former
spouse, children, stepchildren, grandchildren, parent, stepparent, grandparent, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, persons having one of the foregoing types of relationship with you due to adoption,
any person sharing your household (other than a tenant or employee), a foundation in which these
persons or you control the management of assets, and any other entity in which these persons (or
you) own more than fifty percent of the voting interests. A transfer to an entity in which
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more than fifty percent of the voting interests are owned by these persons (or you) in
exchange for an interest in that entity is specifically included as a permissible type of
transfer. In addition, a transfer to a trust created solely for the benefit (i.e., you and/or any
or all of the foregoing persons hold more than 50 percent of the beneficial interest in the trust)
of you and/or any or all of the foregoing persons is also a permissible transferee, or (iv) such
other transferees as may be authorized by the Company in its sole and absolute discretion. During
your life this Nonstatutory Stock Option is exercisable only by you or a transferee satisfying the
above conditions. Except in the event of your death, upon transfer of a Nonstatutory Stock Option
to any or all of the foregoing persons, you, as the Optionee, are liable for any and all taxes due
upon exercise of those transferred Nonstatutory Stock Options. At no time will a transferee who is
considered an affiliate under Rule 144(a)(1) be able to sell any or all such Stock without
complying with Rule 144. The right of a transferee to exercise the transferred portion of this
Nonstatutory Stock Option shall terminate in accordance with your right of exercise under this
Nonstatutory Stock Option and is further subject to such representations, warranties and
indemnifications from the transferee that the Company requires the transferee to make to protect
the Companys interests and ensure that this Nonstatutory Stock Option has been transferred under
the circumstances approved by the Company. Once a portion of a Nonstatutory Stock Option is
transferred, no further transfer may be made of that portion of the Nonstatutory Stock Option.
7. Option Not a service Contract. This Option is not an employment or
service contract and nothing in this Agreement , the Grant Notice or the Plan shall be deemed to
create in any way whatsoever any obligation on your part to continue in the service of the
Company, or of the Company to continue your service with the Company. In addition, nothing in
your Option shall obligate the Company, its stockholders, board, officers or employees to continue
in the service of the Company.
8. Notices. Any notices provided for in this Stock Option Agreement, the
Grant Notice or the Plan shall be given in writing and shall be deemed effectively given upon
receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the last address you provided to the
Company.
9. Interpretation. Any dispute or claim concerning any Options granted (or
not granted) pursuant to the Grant Notice or this Agreement and any other disputes or claims
relating to or arising out of the Plan shall be submitted to the Board or the Committee
administering the Plan, which shall review such dispute in accordance with the Grant Notice, the
Agreement and the Plan. The resolution of such a dispute by the Board or the Committee shall be
final and binding on all parties.
10. Amendment. The Board may amend your Option at any time, provided no
such amendment may adversely affect the Option or any unexercised portion of your Option, without
your consent unless such amendment is necessary to comply with any applicable law or government
regulation. No amendment or addition to this Agreement shall be effective unless in writing or,
in such electronic form as may be designated by the Company.
11. Description of Electronic Delivery. The Plan documents, which may
include but do not necessarily include: the Plan, the Grant Notice, this Stock Option Agreement,
and any reports of the Company provided generally to the Companys
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shareholders, may be delivered to you electronically. In addition, if permitted by the
Company, you may deliver electronically the Grant Notice to the Company or to such third party
involved in administering the Plan as the Company may designate from time to time. Such means of
electronic delivery may include but do not necessarily include the delivery of a link to a Company
intranet or the internet site of a third party involved in administering the Plan, the delivery of
the document via electronic mail (e-mail) or such other means of electronic delivery specified
by the Company.
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