Exhibit 10.11
NON-QUALIFIED STOCK OPTION AGREEMENT
OF
NEXTERA ENTERPRISES, INC.
THIS AGREEMENT is made by and between Nextera Enterprises, Inc., a
Delaware corporation (the "Company"), and _________ an employee of the Company
or a Subsidiary of the Company ("Optionee"):
WHEREAS, the Company wishes to afford the Optionee the opportunity
to purchase shares of its Class A Common Stock;
WHEREAS, the Company wishes to carry out the Plan (the terms of
which are hereby incorporated by reference and made a part of this Agreement);
and
WHEREAS, the Committee, appointed to administer the Plan, has
determined effective ________ (the "Commitment Date") that it would be to the
advantage and best interest of the Company and its shareholders to grant the
Non-Qualified Option provided for herein to the Optionee for the reasons
described above and as an inducement to enter into or remain in the service of
the Company or its Subsidiaries and as an incentive for increased efforts during
such service, and has advised the Company thereof and instructed the undersigned
officers to issue said Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates. All capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Plan.
Section 1.1 - Agreement
"Agreement" shall mean this Non-Qualified Stock Option Agreement of
Nextera Enterprises, Inc.
Section 1.2 Option
"Option" shall mean the option to purchase Class A Common Stock of
the Company granted under this Agreement. This Option shall not be an incentive
stock option within the meaning of Section 422 of the Code.
Section 1.3 - Plan
"Plan" shall mean The 1998 Equity Participation Plan of Nextera
Enterprises, Inc, as amended and restated.
ARTICLE II
GRANT OF OPTION
Section 2.1 - Grant of Option
In consideration of the Optionee's agreement to remain in the employ
of the Company or its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Optionee
the option to purchase any part or all of an aggregate of _________ shares of
its Class A Common Stock upon the terms and conditions set forth in this
Agreement and the Plan. Such Option shall not be an "Incentive Stock Option"
within the meaning of Section 422 of the Code.
Section 2.2 - Purchase Price
The purchase price of the shares of stock covered by this Option
shall be equal to _________ per share without commission or other charge.
Section 2.3 - Consideration to Company
In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe. Nothing in this Agreement or in the Plan shall confer upon
the Optionee any right to continue in the employ of the Company or any
Subsidiary, or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries, which are hereby expressly reserved, to discharge
the Optionee at any time for any reason whatsoever, with or without cause.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) The Option shall become exercisable in installments as follows:
(i) The first installment shall consist of ____ percent (___%)
of the shares of Class A Common Stock covered by the Option and shall
become exercisable on the first anniversary of the Commitment Date.
(ii) The second installment shall consist of ____ percent
(___%) of the shares of Class A Common Stock covered by the Option and
shall become exercisable on the second anniversary of the Commitment Date.
(iii) The third installment shall consist of ____ percent
(___%) of the shares of Class A Common Stock covered by the Option and
shall become exercisable on the third anniversary of the Commitment Date.
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(iv) The fourth installment shall consist of ____ percent
(___%) of the shares of Class A Common Stock covered by the Option and
shall become exercisable on the fourth anniversary of the Commitment Date.
(v) The fifth installment shall consist of ____ percent (___%)
of the shares of Class A Common Stock covered b the Option and shall
become exercisable on the fifth anniversary of the Commitment Date.
(b) Subject to Section 3.4, no portion of the Option which is
unexercisable at Termination of Employment shall thereafter become exercisable.
Section 3.2 - Duration of Exercisability
The installments provided for in Section 3.1 hereof are cumulative.
Each such installment which becomes exercisable pursuant to Section 3.1 hereof
shall remain exercisable until it becomes unexercisable under Section 3.3 or as
otherwise provided under the Plan.
Section 3.3 - Expiration of Option
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the Commitment Date; or
(b) The expiration of ninety (90) days from the date of the
Optionee's Termination of Employment for any reason except death or Disability
or Termination for Cause; or
(c) The expiration of one hundred eighty (180) days from the date of
the Optionee's Termination of Employment due to the Optionee's death or
Disability; or
(d) The date of the Termination of Employment if such termination
qualifies as a Termination for Cause.
Section 3.4 - Acceleration of Exercisability
Notwithstanding Section 3.1 hereof, all Options shall become fully
exercisable immediately upon the Optionee's Termination of Employment if such
termination occurs due to the Optionee's death or Disability.
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only the Optionee may exercise
the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3 hereof or as otherwise provided under the Plan,
be exercised by the Optionee's personal representative or by any person
empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
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Section 4.2 - Partial Exercise
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3 hereof or as otherwise provided under the Plan; provided, however, that each
partial exercise shall be for not less than ten (10) shares and shall be for
whole shares only.
Section 4.3 - Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3 hereof or as otherwise provided under the Plan:
(a) A written notice complying with the applicable rules established
by the Committee stating that the Option, or a portion thereof, is exercised.
The notice shall be signed by the Optionee or other person then entitled to
exercise the Option or such portion; and
(b) (i) Full cash payment to the Secretary of the Company for the
shares with respect to which the Option or portion is exercised; or
(ii) With the consent of the Committee, shares of the
Company's Class A Common Stock which have been owned by the Optionee for a
period of more than six months, duly endorsed for transfer to the Company, with
a Fair Market Value on the date of delivery equal to the aggregate exercise
price of the Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse
promissory note bearing interest (at no less than such rate as shall then
preclude the imputation of interest under the Code or successor provision) and
payable upon such terms as may be prescribed by the Committee. The Committee may
also prescribe the form of such note and the security to be given for such note.
The Option may not be exercised, however, by delivery of a promissory note or by
a loan from the Company when or where such loan or other extension of credit is
prohibited by law; or
(iv) With the consent of the Committee, any combination of the
consideration provided in the foregoing subparagraphs (i), (ii) and (iii); and
(c) A bona fide written representation and agreement, in the form
attached hereto as Exhibit A (or, at the discretion of the Committee, such other
form which the Committee deems satisfactory), signed by the Optionee or other
person then entitled to exercise the Option or portion, stating that the shares
of stock are being acquired for his own account, for investment and without any
present intention of distributing or reselling said shares or any of them except
as may be permitted under the Securities Act and then applicable rules and
regulations thereunder, and that the Optionee or other person then entitled to
exercise the Option or portion will indemnify the Company against and hold it
free and harmless from any loss, damage, expense or liability resulting to the
Company if any sale or distribution of the shares by such person is contrary to
the representation and agreement referred to above. The Committee may, in its
absolute discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel acceptable to it to
the effect
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that any subsequent transfer of shares acquired on the Option exercise does not
violate the Securities Act, and may issue stop-transfer orders covering such
shares. Share certificates evidencing stock issued on exercise of this Option
shall bear an appropriate legend referring to the provisions of the agreements
herein. The written representation and agreement referred to in the first
sentence of this subsection (c) shall, however, not be required if the shares to
be issued pursuant to such exercise have been registered under the Securities
Act, and such registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of
all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; or with the consent of the Committee, the
consideration described in clauses (ii) and (iii) of Section 4.3(b) above equal
to the sums required to be withheld, may be used to make all or part of such
payment; and; and
(e) In the event the Option or portion shall be exercised pursuant
to Section 4.1 hereof by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the Option.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges
on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The receipt by the Company of full payment for such shares,
including payment of all amounts which, under federal, state or local tax law,
the Company (or other employer corporation) is required to withhold upon
exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
Section 4.5 - Rights as Shareholder
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
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ARTICLE V
OTHER PROVISIONS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret, amend or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Optionee, the Company and all other interested persons. No member of
the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. In its
absolute discretion, the Board may at any time and from time to time exercise
any and all rights and duties of the Committee under the Plan and this Agreement
except with respect to matters which under Rule 16b-3 or Section 162(m) of the
Code, or any regulations or rules issued thereunder, are required to be
determined in the sole discretion of the Committee.
Section 5.2 - Option Not Transferable
Neither the Option nor any interest or right therein or part thereof
shall be sold, pledged, assigned, or transferred in any manner other than by
will or the laws of descent and distribution, unless and until the Option has
been exercised (and, in such event, solely in accordance with the terms and
conditions of this Agreement and the Plan), or the shares underlying the Option
have been issued, and all restrictions applicable to such shares have lapsed.
Neither the Option nor any interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his successors
in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect, except to the extent that such disposition is permitted
by the preceding sentence.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of Class A Common Stock as will be
sufficient to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. All such notices
and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back if
telexed; when receipt acknowledged, if telecopied; and the next business day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
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Section 5.5 - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
Section 5.6 - Construction
This Agreement shall be administered, interpreted and enforced under
the internal laws of the State of Delaware without regard to conflicts of laws
thereof.
Section 5.7 - Conformity to Securities Laws
The Optionee acknowledges that the Plan is intended to conform to
the extent necessary with all provisions of the Securities Act and the Exchange
Act and any and all regulations and rules promulgated by the Securities and
Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Option is granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and this Agreement shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.
Section 5.8 - Amendments
This Agreement and the Plan may be amended without the consent of
the Optionee provided that such amendment would not impair any rights of the
Optionee under this Agreement. No amendment of this Agreement shall, without the
consent of the Optionee, impair any rights of the Optionee under this Agreement.
Section 5.9 - Incorporation of Plan
This Agreement is made pursuant to the provisions of the Plan which
is incorporated by reference herein. Terms used herein shall have the meaning
employed by the Plan, unless the context clearly requires otherwise. In the
event of a conflict between the provisions of the Plan and the provisions of
this Agreement, the provisions of the Plan shall govern.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
Dated: ________
NEXTERA ENTERPRISES, INC.,
a Delaware corporation
By ____________________________
Name:
Title:
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______________________________
[EMPLOYEE NAME]
Optionee
______________________________
______________________________
Address
Optionee's Taxpayer
Identification Number:
______________________________
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Exhibit A
NEXTERA ENTERPRISES, INC.
NOTICE OF EXERCISE OF OPTION
Name:
___________________________________________________________________________
Social Security Number:
_______________________________________________________________
I hereby give notice of the exercise of the following shares:
Type of Date Number of Option Payment
Option Granted Shares Price Due
------- --------------- ---------- --------- ---------
___________ _______________ __________ X _________ = __________
Method of
Payment: ____ Personal Check ____ Wire Transfer ____ Previously Owned Shares
In the case of an exercise using previously-owned shares, I hereby certify
ownership of sufficient number of shares of Class A Common Stock for a period of
at least six months to effect such exercise.
Tax Withholding
Method: ____ Personal Check ____ Wire Transfer
Address to be used for Stockholder Mailings:
________________________________________________________________________________
________________________________________________________________________
Address where Certificate should be mailed:
________________________________________________________________________________
________________________________________________________________________________
________________ ________________________________________________________
Date Optionee's Signature
XXXXXXX XXXXXXX (SECTION 10b-5) REMINDERS Both the federal securities laws and
Company policy prohibit transactions in the Company's Common Stock at a time
when you may be in possession of material information about the Company which
has not been publicly disclosed. This also applies to
members of your household, anyone receiving information regarding the Company
from you, as well as all others whose transactions may be attributable to you.
Material information, in short, is any information which could affect the stock
price. Either positive or negative information may be material.
YOU MAY BE SUBJECT TO ADDITIONAL LEGAL RESTRICTIONS AND REQUIREMENTS. CONTACT
THE COMPANY'S LEGAL COUNSEL WITH ANY QUESTIONS.
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