Exhibit 4.5
OPTION AGREEMENT
THIS AGREEMENT made and entered into as of this __th day of ____ 1999, by and
between:
ZipLink, Inc., a Delaware corporation with offices at 000
Xxxxxxxxxx Xxxxxx, Tower One, Fifth Floor, Lowell
Massachusetts 01851 (the "Company"); and
____________________, an employee of the Company ("Optionee").
WITNESSETH:
WHEREAS, the Committee established to administer the ZipLink, Inc. 1999
Stock Option Plan (the "Plan") has determined that Optionee shall be granted an
Option under the Plan; and
WHEREAS, the Plan requires that the grant of an Option thereunder shall be
evidenced by a written agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, the parties hereto hereby agree as follows:
1. REFERENCE TO ZIPLINK, INC. 1999 STOCK OPTION PLAN
The Option granted to Optionee hereunder is issued under and pursuant to the
ZipLink, Inc. 1999 Stock Option Plan, the terms of which are hereby incorporated
by reference. The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof. Capitalized terms
used in this Agreement without definition shall have the respective meanings
given to them in the Plan. In the event of any inconsistencies between the Plan
and this Agreement, the Plan shall govern.
2. GRANT OF OPTION
Pursuant to the provisions of the Plan, the Company hereby grants to the
Optionee, subject to the terms and conditions of the Plan and subject further to
the terms and conditions herein set forth, an Option as provided in the
following table:
----------------------------- ----------------------------------------
Date of Grant: ___________, 1999
Date Vesting Begins: ___________, 1999
Shares subject to Option: ___________
Option Price (per share) ___________
----------------------------- ----------------------------------------
3. TYPE OF OPTION
The Option granted hereunder shall not qualify as an Incentive Stock Option.
4. VESTING OF OPTIONS
The shares subject to the Option granted hereunder may only be purchased to
the extent that Optionee is vested in the Option. Optionee shall become vested
in the Option granted hereunder in equal tranches of 20% of the shares subject
to the Option on each of the first five anniversaries of the date that vesting
begins as specified hereunder.
5. TERMINATION OF EMPLOYMENT
The rules provided in the Plan shall apply in the event of an Optionee's
termination of employment with the Company. No part of the Option shall vest
after the Termination Date.
6. DURATION OF OPTIONS
If not sooner terminated pursuant to the Plan, the Option granted hereunder
shall expire and all rights to purchase shares pursuant to the Option (or
portion thereof) shall cease as of the close of business on the last business
day preceding the date which is 10 years after the Date of Grant.
7. CANCELLATION UPON CERTAIN CONDUCT
Notwithstanding anything herein to the contrary, in the event that the
Company at any time determines, in its sole discretion, that the Optionee has
engaged, or intends to engage, in conduct which is: (i) competitive with the
Company, including becoming employed by, serving as a consultant or advisor to,
or having a significant ownership interest in any entity which competes,
directly or indirectly, with the Company, or (ii) adverse to the interests of
the Company, including, without limitation, the use or dissemination of
information which is confidential or proprietary to the Company, or the making
of disparaging comments about the Company or any of its past or present
officers, directors, shareholders or employees, its operations, products or
prospects, the Option and all rights hereunder shall be deemed to have expired
and terminated as to all shares subject to the Option on the date, as determined
by the Company, of the conduct described in clauses (i) or (ii) of this Section.
The operation of this Section shall not be affected by any notice of exercise
given by the Optionee prior to the date of such determination unless the Company
has theretofore issued shares pursuant to such notice.
8. NOTICE OF DISQUALIFYING DISPOSITION
If the Option granted to Optionee hereunder is an Incentive Stock Option,
and if Optionee sells or otherwise disposes of any of the Shares acquired
pursuant to the Incentive Stock Option on or before the later of: (i) the date
two years after the Date of Grant, or (ii) the date one year after transfer of
such Shares to Optionee upon exercise of the Incentive Stock Option, Optionee
shall notify the Company in writing within 30 days after the date of any such
disposition. Optionee agrees that Optionee may be subject to income tax
withholding by the Company on the compensation income recognized by Optionee
from the early disposition by payment in cash or out of the then current
earnings paid to Optionee.
9. MISCELLANEOUS
(a) NOTICES. Any notice, request, acknowledgment, consent, or other
communication to the Company or the Committee authorized or required by the Plan
or this Agreement shall be in writing and shall be delivered personally, sent by
registered or certified mail (postage prepaid, return receipt requested), or
sent by a recognized overnight delivery service, in any such case: (i) if to the
Company, to the President of the Company at the Company's principal executive
offices or (ii) if to Optionee, addressed to him or her at the last address
shown for him or her on the records of the Company. Any such notice shall be
deemed to have been delivered, given, and received for all purposes as of the
date so delivered.
(b) WAIVER. The failure of any party to insist in any one or more instances
upon the performance of any of the terms and conditions of this
Agreement shall not be construed as a waiver or relinquishment of any
right granted hereunder, or of the future performance of any such term
or condition.
(c) ENTIRE AGREEMENT. This Agreement, together with the Plan, sets forth
the entire understanding of the parties hereto with respect to the
subject matter hereof and supersedes any prior understandings or
agreements among the parties, whether written or oral, to the extent
related to the subject matter hereof. No party hereto has relied upon
any promise, representation, warranty, agreement, covenant, or
undertaking, express or implied, other than those expressly set forth
herein and/or in the Plan.
(d) FURTHER ACTS. Each of the parties hereto shall execute and deliver all
such additional documents or legal instruments, and shall perform or
cause to be performed all such further acts and things, as may be
necessary or desirable to carry out the purposes and intent of this
Agreement.
(e) AMENDMENT. This Agreement may not be amended, modified or altered in
any manner, except pursuant to the terms of a written instrument signed
by each of the parties hereto.
(f) INVALID PROVISION. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall thereafter be construed in all
respects as if such invalid or unenforceable provisions were omitted.
(g) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without
giving any effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or of any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than
the State of Delaware.
(h) BINDING NATURE. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors, personal
representatives, heirs, devisees, guardians and assigns.
(i) ARBITRATION. Any controversy, claim, dispute, difference, or
disagreement arising out of or relating to this Agreement, or any
breach thereof, including without limitation any dispute concerning the
scope of this arbitration provision, shall be settled by arbitration
(before a single arbitrator) administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules in
Boston, Massachusetts. There shall be no appeal from the award rendered
by the arbitrator or arbitrators and judgment thereon may be entered in
any court having jurisdiction thereof.
(j) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall for all
purposes constitute one agreement binding upon all of the parties.
(k) HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of
this Agreement.
(l) USAGE. In construing this Agreement, feminine or neuter pronouns shall
be substituted for those of the masculine form, and the plural for the
singular, and vice versa, in any case in which the context may require.
The capitalized terms used in this Agreement shall have the meaning
first applied to their first usage in this Agreement unless otherwise
indicated.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on and as of the date first above written:
ZIPLINK, INC.
By:______________________________
Its:
_________________________________
Employee:
