Standard Form Time/Performance Options
SERENA SOFTWARE, INC.
STOCK OPTION GRANT NOTICE
2006 STOCKINCENTIVE PLAN
Serena Software, Inc. (Company), pursuant to its 2006 Stock Incentive Plan (Plan), herebygrants to the Optionholder identified below an Option (also referred to from time to time as a Time/Performance Option) to purchase the number of shares of the Companys Common Stock (Shares) set forth below.This Option is subject to all of the terms and conditions as set forth herein and in the Stock Option Agreement, the Plan and the Notice of Exercise, all of which are attached hereto and incorporated herein in their entirety.
Date of Grant:
Number of SharesSubject to Option:
Exercise Price (Per Share): $
Total Exercise Price: $
|Type of Grant [check one]:||¨ Incentive Stock Option1||¨ Nonstatutory Stock Option|
|Exercise Schedule:||Same as Vesting Schedule.|
|Vesting Schedule:||As set forth in Schedule A attached hereto.|
|Payment:||By cash or check (unless otherwise permitted by the Board)|
Additional Terms/Acknowledgements: The undersigned Optionholder acknowledges receipt of, and understandsand agrees to, this Grant Notice, the Stock Option Agreement and the Plan. Optionholder further acknowledges that as of the Date of Grant, this Grant Notice, the Stock Option Agreement and the Plan set forth the entire understanding betweenOptionholder and the Company regarding the acquisition of stock in the Company and supersede all prior oral and written agreements on that subject with the exception of (i) options previously granted and delivered to Optionholder under thePlan, and (ii) the agreements, if any, listed below:
|SERENA SOFTWARE, INC.||OPTIONHOLDER|
Attachments: Stock Option Agreement, 2006 Stock Incentive Plan, and Notice ofExercise
|1||If this is an incentive stock option, it (plus Optionholders other outstanding incentive stock options) cannot be first exercisable for more than$100,000 in any calendar year. Any excess over $100,000 is a nonstatutory stock option.|
SERENA SOFTWARE, INC.
2006 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
(TIME/PERFORMANCE BASED STOCK OPTION)
Pursuant to your Stock Option Grant Notice (Grant Notice) and this Stock Option Agreement, Serena Software, Inc. (the Company) has granted you a stock option under its 2006 Stock Incentive Plan (the Plan)to purchase the number of shares of the Companys Common Stock indicated in your Grant Notice at the exercise price indicated in your Grant Notice. Capitalized terms not defined in this Stock Option Agreement or in the Grant Notice but definedin the Plan shall have the same definitions as in the Plan. For the avoidance of doubt, the terms and conditions of the Grant Notice are a part of the Stock Option Agreement, unless otherwise specified.
The details and terms and conditions of this Stock Option Agreement shall govern your Option, notwithstanding any less favorable terms and conditions onthe same matter set forth in the Plan (subject, however, to Section 15 hereof):
(a) Subject to the limitations contained herein, your Option will vest as set forth in your Grant Notice, provided that vesting will cease uponthe termination of your Continuous Service.
(b) Notwithstanding any provision of this Stock Option Agreement to the contrary, inthe event of a Change in Control, subject to the conditions set forth in this Section 1(b), the Option shall, to the extent not then vested and not previously cancelled, become vested and exercisable, or cancelled, as the case may be, inaccordance with the terms of this Section 1(b):
(i) the unvested portion of your Time/Performance Option willvest and become exercisable immediately prior to a Change in Control if, upon consummation of such Change in Control, SLP and its Affiliates have received Aggregate Proceeds (as defined in Section 1(c) below) in respect of the SLP InitialShares (as defined in Section 1(c) below) in an amount equal to greater than 3 times the aggregate cash purchase price paid by SLP and its Affiliates to acquire the shares of common stock of Spyglass Merger Corp. that were converted into SLPInitial Shares at the Closing;
(ii) that percentage of your Time/Performance Option that previously failed to vestat the rate of 20% per each completed fiscal year prior to such Change in Control will vest and become exercisable immediately prior to such Change in Control if, upon consummation of such Change in Control, SLP and its Affiliates have receivedAggregate Proceeds in respect of the SLP Initial Shares in an amount equal to at least 2 times the aggregate cash purchase price paid by SLP and its Affiliates to acquire the shares of common stock of Spyglass Merger Corp. that were converted intoSLP Initial Shares at the Closing. For the avoidance of doubt (A) Time/Performance Options
subject to vesting upon the achievement of performance objectives for fiscal years commencing after theChange in Control will not vest or become exercisable as a result of the Change in Control, and (B) Time/Performance Options subject to vesting upon the achievement of performance objectives for the fiscal year in which the Change in Controloccurs will vest on a pro-rata basis based upon the number of full weeks which have elapsed during such fiscal year prior to the Change in Control and without regard to actual financial performance during such fiscal year (based on an assumedmaximum vesting percentage of 20% for such fiscal year); and
(iii) No additional portion of your Time/Performance Optionwill vest upon a Change in Control if, upon consummation of such Change in Control, SLP and its Affiliates have not received Aggregate Proceeds in respect of the SLP Initial Shares in an amount equal to at least 2 times the aggregate cash purchaseprice paid by SLP and its Affiliates to acquire the shares of common stock of Spyglass Merger Corp. that were converted into SLP Initial Shares at the Closing. For the avoidance of doubt, any portion of your Time/Performance Option that has notvested prior to a Change in Control and does not vest as a result of the Change in Control shall terminate upon a Change in Control.
(c) For purposes of Section 1(b) only:
(i) Aggregate Proceeds means the sum of all cashproceeds and the fair value of all marketable securities and other property received by SLP and its Affiliates (in each case net of any commissions, fees or other expenses payable by SLP or its Affiliates in connection with the sale or othertransaction resulting in the receipt of such cash, marketable securities or other property) in respect of (A) all sales of SLP Initial Shares (except a sale to a SLP Affiliated Fund), including any cash, marketable securities or other propertyreceived by SLP and its Affiliates in any merger, consolidation or similar transaction resulting in a Change of Control and (B) all dividends or other distributions paid or made to SLP and its Affiliates in respect of the SLP Initial Shares.For purposes of the foregoing definition, (x) marketable securities shall be securities that are listed on the New York Stock Exchange, the Nasdaq National Market or another national securities exchange or market and the fair value ofmarketable securities will be the closing sales price for such marketable securities (or the closing bid, if no sales were reported) as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in suchmarketable securities) on the last market trading day prior to the day of determination, as reported in The Wall Street Journal or such other source as the Board deems reliable, and (y) the fair value of any other property shall bedetermined in good faith by the Board, subject in either of the foregoing clauses (x) and (y) to adjustment by the Board in good faith to take into account any restrictions on transferability, liquidity or saleability of such marketablesecurities or other property. In addition, in evaluating the amount of Aggregate Proceeds received in connection with any sale of SLP Initial Shares (except a sale to a SLP Affiliated Fund), (x) the Board may take into consideration amountspaid into escrow and contingent payments made in connection with any transaction and (y) such Aggregate Proceeds will be reduced by any indemnity or similar payments made by SLP and its Affiliates to the extent the amounts of such payments werenot previously deducted when calculating the Aggregate Proceeds.
(ii) Post-Closing Syndication means the transfer of up to an aggregate16,384,000 (as adjusted for any stock split, reverse stock split, combination, recapitalization or reclassification) shares of Common Stock no later than 6 months after the Closing for a cash price of no more than $5.00 per share (as adjusted forany stock split, reverse stock split, combination, recapitalization or reclassification), which transfer or transfers may be to an Affiliate of SLP.
(iii) SLP Affiliated Fund means any investment fund that is an Affiliate of SLP.
(iv) SLP Initial Shares means the Common Stock received by SLP and its Affiliates at the Closing (excluding any shares of Common Stock transferred after Closing in a Post-Closing Syndication) and any consideration (other thancash or marketable securities) received by SLP and its Affiliates in connection with any sale of SLP Initial Shares or as a dividend or other distribution on SLP Initial Shares.
2. Number of Shares and Exercise Price. The number of shares of Common Stock subject to your Option and your exercise price per sharereferenced in your Grant Notice may be adjusted from time to time for various adjustments in the Companys equity capital structure, as provided in the Plan.
3. Method of Payment.
(a) Payment of the exercise price is due in full upon exerciseof all or any part of your Option. You may elect to make payment of the exercise price in cash or by check. Alternatively, provided that at the time of exercise there is a public market for the shares of Common Stock, your exercise may beimplemented pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of irrevocableinstructions to pay the aggregate exercise price to the Company from the sales proceeds. Notwithstanding the terms of the previous sentence, you may not be permitted to exercise your Option pursuant to a program developed under Regulation T aspromulgated by the Federal Reserve Board if such exercise would violate the provisions of Section 402 of the Sarbanes-Oxley Act of 2002.
(b) You may elect to make payment of the exercise price, in whole or in part, in shares of Common Stock having a Fair Market Value equal to the amount of the aggregate exercise price or such portion thereof, as applicable; provided,however, that you must satisfy all such requirements as may be imposed by the Board including without limitation that you have held such shares for not less than six months (or such other period as established from time to time by the Board in orderto avoid a supplemental charge to earnings for financial accounting purposes).
(c) Where you elect to pay the exercise price of anOption and/or taxes relating to the exercise of an Option by delivering shares of Common Stock, you may, subject to procedures satisfactory to the Board, satisfy such delivery requirement by presenting proof that you are the Beneficial Owner of suchshares of Common Stock, in which case the Company shall treat the Option as exercised without further payment and shall withhold such number of shares from the Shares acquired by the exercise of the Option.
(d) The Company may permit you to make payment of the exercise price in any other form of legalconsideration that may be acceptable to the Board in its sole discretion.
4. Whole Shares. You may exercise your Option onlyfor whole shares of Common Stock.
(a) Securities Law Compliance. Notwithstanding anything to the contrary contained herein, you may not exercise your Option unless theShares of Common Stock issuable upon such exercise are then registered under the Securities Act or, if such Shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registrationrequirements of the Securities Act. The exercise of your Option must also comply with other applicable laws and regulations governing your Option, and you may not exercise your Option if the Company determines that such exercise would not be inmaterial compliance with such laws and regulations.
(b) Plan Compliance. Notwithstanding anything to the contrary containedherein, you may not exercise your Option if the terms of the Plan do not permit the exercise of Options, or if the Company exercises its rights under the Plan to suspend, delay or restrict the exercise of Options.
6. Term. You may not exercise your Option before the commencement of its term on the Date of Grant or after its term expires. Subject tothe provisions of the Plan and this Stock Option Agreement, you may exercise all or any part of the vested portion of the Option at any time prior to the earliest to occur of:
(a) the date on which your Continuous Service is terminated for Cause;
(b) three (3) months after you terminate your Continuous Service by resigning without Good Reason;
(c) twelve (12) months after the termination of your Continuous Service without Cause or after you terminate your ContinuousService by resigning for Good Reason;
(d) twelve (12) months after the termination of your Continuous Servicedue to your Disability;
(e) twelve (12) months after the termination of your Continuous Service due to yourdeath; or
(f) the Expiration Date indicated in the Grant Notice.
Notwithstanding the foregoing, if the exercise of your Option is prevented within the applicable time periods set forth in Sections 6(b), (c) or (d) for anyreason, your Option shall not expire before the date that is thirty (30) days after the date that you are notified by the Company that the Option is again exercisable, but in any event no later than the Expiration Date indicated in your
Grant Notice; provided, however, that if the Grant Notice designates your Option as an Incentive Stock Option, and if anysuch extension causes the term of your Option to exceed the maximum term allowable for Incentive Stock Options, your Option shall cease to be treated as an Incentive Stock Option and instead shall be treated thereafter as a Nonstatutory StockOption.
7. Exercise Procedures.
(a) Subject to Section 5 above and other relevant terms and conditions of the Plan and this Stock Option Agreement, you may exercise the vested portion of your Option during its term by delivering a Noticeof Exercise (in a form designated by the Company) together with the exercise price to the Companys Chief Financial Officer, or to such other person as the Company may designate, during regular business hours, together with such additionaldocuments as the Company may then reasonably require.
(b) By exercising your Option you agree that, as a condition to any exerciseof your Option, the Company may require you to enter into an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company (including any Affiliate) arising by reason of (1) the exercise of yourOption, or (2) other applicable events.
(c) By exercising your Option you agree that, as a condition to any exercise of yourOption, you and your spouse, if requested by the Company, contemporaneously with the exercise of your Option and prior to the issuance of any certificate representing the Shares of Common Stock purchased upon the exercise of your Option, shallexecute the Management Stockholders Agreement, including any and all amendments to such agreement in effect at the time of such exercise.
(d) By exercising your Option you agree that the Company (or a representative of the underwriter(s)) may, in connection with the first underwritten registration of the offering of any equity securities of the Company under theSecurities Act (or any underwritten registration of any securities of the Company prior to that time), require that for a specified period of time, you not sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, orenter into any hedging or similar transaction with the same economic effect as a sale, any shares of Common Stock or other securities of the Company held by you. You further agree to execute and deliver such other agreements as may be reasonablyrequested by the Company and/or the underwriter(s) that are consistent with the foregoing or that are necessary to give further effect thereto. In order to enforce the foregoing covenant, the Company may impose stop transfer instructions withrespect to your shares of Common Stock until the end of such period. The underwriters of the Companys stock are intended third party beneficiaries of this Section 7(d) and shall have the right, power and authority to enforce theprovisions hereof as though they were a party hereto.
(e) As a condition of any exercise of your Option, you and your spouse, ifany, agree that prior to the effectiveness of the first underwritten registration of the Companys equity securities under the Securities Act, you shall not transfer any or all of the shares of Common Stock purchased upon exercise of yourOption unless permitted to do so under the terms of the Plan or the Management Stockholders Agreement.
8. Documents Governing Issued Common Stock. Shares of Common Stock that you acquire uponexercise of your Option are subject to the terms of the Plan, the Companys bylaws, the Companys certificate of incorporation, any agreement relating to such shares of Common Stock to which you become a party, or any other similardocument. You should ensure that you understand your rights and obligations as a stockholder of the Company prior to the time that you exercise your Option.
9. Limitations on Transfer of Options. Your Option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding theforegoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise your Option.
10. Rights Upon Exercise. You will not have any rights to dividends or other rights of a stockholder with respect to the Shares subject tothe Option until you have given written notice of the exercise of the Option, paid in full for such Shares and, if applicable, satisfied any other conditions imposed by the Board pursuant to the Plan.
11. Option Not a Service Contract. Your Option is not an employment contract, and nothing in your Option shall be deemed to create in anyway whatsoever any obligation on your part to continue in the employ or service of the Company or any of its Affiliates, or of the Company or any of its Affiliates to continue your employment. In addition, nothing in your Option shall obligate theCompany or any of its Affiliates, their respective stockholders, Boards of Directors, officers or employees to continue any relationship that you might have as a Director or Consultant or otherwise for the Company or any of its Affiliates.
12. Withholding Obligations and Notice Requirement.
(a) At the time you exercise your Option, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorizewithholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for (including by means of a same day sale program developed under Regulation T as promulgated by the Federal Reserve Board tothe extent permitted by the Company and applicable law, including, but not limited to, Section 402 of the Sarbanes-Oxley Act of 2002) any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Companyor any of its Affiliates, which arise in connection with your Option.
(b) You may not exercise your Option unless the taxwithholding obligations of the Company and/or any Affiliate are satisfied or appropriate arrangements (acceptable to the Company) are made therefor.
(c) You agree to promptly notify the Company of any disposition of Shares issued pursuant to the exercise of an Incentive Stock Options that results in a disqualifying disposition for purposes ofSection 421 of the Code.
13. Notices. Any notices provided for in your Option or the Plan shall be given in writing andshall be deemed effectively given upon receipt, or in the case of notices delivered by mail to you, five (5) days after deposit in the United States mail (or with another delivery service), certified or registered mail, return receiptrequested, postage prepaid, addressed to you at the last address you provided to the Company.
14. Signature in Counterparts. This Stock Option Agreement may be signed in counterparts,each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
15.Option Subject to Plan Document. By entering into this Stock Option Agreement, you agree and acknowledge that you have received and read a copy of the Plan and Management Stockholders Agreement. The Option is subject to the terms andprovisions of the Plan and the Management Stockholders Agreement and such terms and provisions are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Planor the Management Stockholders Agreement, the applicable terms and provisions of the Plan or Management Stockholders Agreement, as applicable, will govern and prevail. In the event of a conflict between any term or provision of the Plan and any termor provision of the Management Stockholders Agreement, the applicable terms and provisions of the Management Stockholders Agreement will govern and prevail.
NOTICE OF EXERCISE
Serena Software, Inc.
2755 Campus Drive, 3rd Floor
San Mateo, California94403-2538
|Date of Exercise:|
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase the number of Shares for the price set forth below.
Stock option dated:
Number of Shares as to which option is exercised:
Certificates to be issued in name of:
Total exercise price:
Consideration delivered herewith:
By this exercise, I agree (i) to execute or provide such additional documents as SerenaSoftware, Inc. (the Company) may reasonably require pursuant to the terms of this Notice of Exercise and the Companys 2006 Stock Incentive Plan (the Plan), and (ii) to provide for the payment by me to the Company(in the manner designated by the Company) of the Companys withholding obligation, if any, relating to the exercise of this Option.
Ihereby make the following certifications and representations with respect to the number of shares of Common Stock of the Company listed above (the Shares):
I am aware that my investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. I am able, without impairing my financial condition, to hold the Sharesfor an indefinite period and to suffer a complete loss of my investment in the Shares.
I represent and warrant to the Company that I amacquiring and will hold the Shares for investment for my account only, and not with a view to, or for resale in connection with, any distribution of the Shares within the meaning of the Securities Act of 1933 (the SecuritiesAct) or the similar laws of any state or foreign jurisdiction.
I understand that the Shares have not been registered under theSecurities Act, the Securities Exchange Act of 1934, or under the similar laws of any state or foreign jurisdiction
(collectively, Applicable Securities Laws) by reason of a specific exemption therefrom and that the Sharesmust be held indefinitely, unless they are subsequently registered under the Applicable Securities Laws or I obtain an opinion of counsel (in form and substance satisfactory to the Company and its counsel) that registration is not required.
I acknowledge that the Company is under no obligation to register the Shares under Applicable Securities Laws.
I am aware of the adoption of Rule 144 by the Securities and Exchange Commission under the Securities Act, which permits limited public resales ofsecurities acquired in a non-public offering, subject to the satisfaction of certain conditions. These conditions may include (without limitation) that certain current public information about the issuer is available, that the resale occurs onlyafter the holding period required by Rule 144 has been satisfied, that the sale occurs through an unsolicited brokers transaction and that the amount of securities being sold during any three-month period does not exceed specifiedlimitations. I understand that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.
I will not sell, transfer or otherwise dispose of the Shares in violation of the Plan, the agreement under which my right to acquire the Shares wasgranted, Applicable Securities Laws, or the rules promulgated thereunder, including Rule 144 under the Securities Act.
I acknowledge thatI have received and had access to such information as I consider necessary or appropriate for deciding whether to invest in the Shares and that I had an opportunity to ask questions and receive answers from the Company regarding the terms andconditions of the issuance of the Shares.
I acknowledge that the Shares will be subject to certain encumbrances, including, but notlimited to, drag along rights in favor of certain stockholders of the Company, repurchase rights in favor of the Company, limitations on transfer, and other encumbrances set forth in the Plan, Stock Option Agreement, other applicable agreementsand/or described in the Companys bylaws or certificate of incorporation in effect at such time as the Company or such other person elects to exercise its or his right.
I acknowledge that I am acquiring the Shares subject to all other terms of the Plan, the Stock Option Grant Notice, and the Stock Option Agreement.
I further agree that if required by the Company (or a representative of the underwriter(s)) in connection with the first underwrittenregistration of the offering of any equity securities of the Company under the Securities Act (or any underwritten registration of any securities of the Company prior to that time), for a specified period of time, I will not sell, dispose of,transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, any Shares or other securities of the Company held by me. I further agree to executeand deliver such other agreements as may be reasonably requested by the Company and/or the underwriter(s) that are consistent with the foregoing or that are necessary to give further effect thereto. In order to enforce the foregoing covenant, theCompany may impose stop transfer instructions with respect to my Shares until the end of such period.
I agree, and as a condition of exercise if I am married I will obtain the agreement of my spouse, thatprior to the effectiveness of the first underwritten registration of the Companys equity securities under the Securities Act, I will not transfer any or all of the Shares unless pursuant to an exception provided in the Plan or the Stock OptionAgreement.
I agree that as a condition to this exercise, the certificates evidencing the Shares shall remain in the physical custody ofthe Company or its designee at all times prior to the last to occur of (i) the date on which all contractual restrictions set forth in the Plan, the Companys Articles of Incorporation and/or bylaws, or in the documents evidencing theStock Option Agreement lapse, or (ii) the date on which all contractual requirements set forth in the Plan, the Companys Articles of Incorporation and/or bylaws, or in the documents evidencing the Stock Option Agreement are satisfied. Asa condition to this exercise I agree to execute three (3) copies of the Assignment Separate From Certificate (with date and number of Shares blank) substantially in the form attached to this Notice of Exercise as Attachment A, and two(2) copies of the Joint Escrow Instructions substantially in the form attached to this Notice of Exercise as Attachment B, and to deliver the same to the Company, along with such additional documents as the Company may require.
I further acknowledge that all certificates representing any of the Shares subject to the provisions of my Option shall have endorsed thereon appropriatelegends reflecting the foregoing limitations, as well as any legends reflecting restrictions pursuant to the Companys Certificate of Incorporation, by-laws, and/or Applicable Securities Laws.
I agree to seek the consent of my spouse to the extent required by the Company to enforce the foregoing.
|Very truly yours,|
A. Form of Assignment Separate from Certificate
B. Form of Joint Escrow Instructions
FORM OF ASSIGNMENT SEPARATE FROM CERTIFICATE
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Option Grant Notice and StockOption Agreement, hereby sells, assigns and transfers unto (Assignee) ( ) shares of the Common Stock of SerenaSoftware, Inc. (Shares), standing in the undersigneds name on the books of said corporation represented by CertificateNo. herewith and do hereby irrevocably constitute and appoint as attorney-in-fact to transfer the said stock on the books of the within named issuer with full power of substitution in the premises. This Assignment may be used only inaccordance with and subject to the terms and conditions of the Stock Option Agreement and the Plan, in connection with the reacquisition or transfer of the Shares issued to the undersigned pursuant to the Stock Option Agreement, and only to theextent that such Shares remain subject to the transferees rights to acquire the Shares and other restrictions applicable under the Stock Option Agreement and the Plan.
[INSTRUCTION: Please do not fill in any blanks other than the signatureline. The purpose of this Assignment is to enable the Company to administer its rights set forth in the Award without requiring additional signatures on your part.]
FORM OF JOINT ESCROW INSTRUCTIONS
JOINT ESCROW INSTRUCTIONS
As EscrowAgent for both Serena Software, Inc. (the Company), and the undersigned recipient of stock of the Company (Recipient), you are hereby authorized and directed to hold the documents delivered to you pursuant to the terms of thePlan and Stock Option Agreement (as referenced in the Notice of Exercise to which this document is attached), in accordance with the following instructions:
1. In the event that (i) certain stockholders of the Company exercise their drag-along rights, (ii) the Company exercises its repurchase rights,(iii) the Company exercises its rights to require that the Shares be contributed to a trust as set forth in Section 13(b) of the Plan, or (iv) the Company or any other Person exercises other contractual rights applicable to the Sharesand in effect as of the date hereof, the Company or its assignee will give to Recipient and you a written notice specifying that the Shares of stock shall be transferred as described in the Plan, the Recipients Stock Option Agreement, or otherapplicable governing documents. Recipient and the Company hereby irrevocably authorize and direct you to close the transaction contemplated by such notice in accordance with the terms of said notice.
At the closing, you are directed (a) to date any stock assignments necessary for the transfer in question, (b) to fill in the number of Sharesbeing transferred, and (c) to deliver same, together with the certificate evidencing the Shares of stock to be transferred, to the Company or other proper transferee.
2. In the event that all applicable restrictions lapse, and when certain requirements are satisfied, the Company or its assignee will give to Recipientand you a written notice specifying that the appropriate number of Shares shall be transferred to the Recipient along with any cash or in-kind dividends declared subsequent to the date hereof and which relate to such Shares. Recipient and theCompany hereby irrevocably authorize and direct you to close the transaction contemplated by such notice in accordance with the terms of said notice.
At the closing, you are directed to deliver a certificate evidencing the appropriate number of Shares, together with any cash or in-kind dividends declared subsequent to the date hereof and which relate to suchShares, to the Recipient.
3. Recipient irrevocably authorizes the Company to deposit with you any certificates evidencing Shares of stockto be held by you hereunder and any additions and substitutions to said Shares as specified in the Stock Option Grant Notice or the Stock Option Agreement. Recipient does hereby irrevocably constitute and appoint you as Recipientsattorney-in-fact and
agent for the term of this escrow to execute with respect to such securities and other property all documents ofassignment and/or transfer and all stock certificates necessary or appropriate to make all securities negotiable and to complete any transaction herein contemplated.
4. This escrow shall terminate upon the date on which all contractual restrictions or requirements set forth in the Plan or in the documents evidencing the restrictions applicable to the Shares lapse or are satisfiedas determined by the Company.
5. If at the time of termination of this escrow you should have in your possession any documents,securities, or other property belonging to Recipient, you shall deliver all of same to any pledgee entitled thereto or, if none, to Recipient and shall be discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying orrefraining from acting on any instrument reasonably believed by you to be genuine and to have been signed or presented by the proper party or parties or their assignees. You shall not be personally liable for any act you may do or omit to dohereunder as Escrow Agent or as attorney-in-fact for Recipient while acting in good faith and any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation,excepting only orders or process of courts of law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case you obey or comply with any such order, judgment or decree of any court, you shall notbe liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to havebeen entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity, authority or rights of theparties executing or delivering or purporting to execute or deliver the Stock Option Grant Notice or any documents or papers deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights under any statute of limitations with respect to these Joint Escrow Instructions or any documents deposited with you.
11. You shall be entitled to employ such legal counsel, including but not limited to Simpson Thacher & Bartlett LLP, and other experts as youmay deem necessary to advise you in connection with your obligations hereunder, and you may rely upon the advice of such counsel, and may pay such counsel reasonable compensation for such advice.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be [Fill in Title of Escrow Agent] of the Company or if youshall resign by written notice to each party. In the event of any such termination, the Company may appoint any officer or
assistant officer of the Company as successor Escrow Agent and Recipient hereby confirms the appointment of suchsuccessor or successors as his attorney-in-fact and agent to the full extent of your appointment.
13. If you reasonably require other orfurther instruments in connection with these Joint Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the securities, youmay (but are not obligated to) retain in your possession without liability to anyone all or any part of said securities until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order,decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but you shall be under no duty whatsoever to institute or defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit inthe United States mail (or upon deposit with another delivery service), with postage and fees prepaid, addressed to each of the other parties hereunto entitled at the following addresses, or at such other addresses as a party may designate by ten(10) days written notice to each of the other parties hereto:
|COMPANY:||Serena Software, Inc.|
2755 Campus Drive, 3rd Floor
San Mateo, California 94403-2538
|Attn: [Fill in Title]|
16. By signing these Joint Escrow Instructions you become a party hereto only for the purpose ofsaid Joint Escrow Instructions; you do not become a party to the Notice of Exercise.
17. This instrument shall be binding upon and inure to the benefit of the parties hereto, and theirrespective successors and permitted assigns. It is understood and agreed that references to you or your herein refer to the original Escrow Agent and to any and all successor Escrow Agents. It is understood and agreed thatthe Company may at any time or from time to time assign its rights under the Stock Option Agreement, the Notice of Exercise and these Joint Escrow Instructions in whole or in part.
|Very truly yours,|
|SERENA SOFTWARE, INC.|