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EXHIBIT 10.3
XXXXXXXXXX.XXX INTERNATIONAL, INC
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of this
1st day of September, 1999, by and between XxxxxxXxxx.xxx International, Inc., a
Delaware corporation (the "Company"), and Xxxxx Xxxx, a resident of the State of
Utah (the "Employee"), collectively referred to hereinafter as the "Parties" or
individually as a "Party."
In consideration of the foregoing and of the promises and mutual
covenants contained herein, the Parties hereto agree as follows:
1. Employment; Location
The Company hereby employs Employee and Employee hereby accepts such
employment in Salt Lake and Summit Counties, State of Utah, or in such other
location or locations as may be mutually agreed between the Parties.
2. Term
Employee's employment hereunder has no specified term or length and,
Subject to Section 6 below, either the Company or Employee can terminate the
employment at any time, with or without Cause (as defined herein) and with or
without prior notice.
3. Duties
Employee's employment hereunder shall be in the capacity of the Chief
Financial Officer of the Company. Employee hereby agrees to faithfully execute,
to the best of his ability, such duties in connection with such office and to
otherwise devote his full time, skills, and best efforts to such duties.
Employee shall perform such duties subject to the general supervision and
control of the Company's Chief Executive Officer and Board of Directors.
Employee agrees that during the period of his employment, he shall not carry on
outside work of any nature (including, without limitation, charitable work,
civic activities, consulting work, or directorships) that is reasonably
determined by the Board of Directors to substantially interfere with Employee's
duties and responsibilities hereunder.
4. Compensation and Benefits
During the Employment Term, the Company shall pay Employee, and Employee
accepts as full compensation for all services to be rendered to the Company, the
following compensation and benefits:
4.1 Salary. The Company shall pay Employee a base salary equal to One
Hundred Five Thousand ($105,000) per year ("Base Salary") plus such annual
additional compensation or performance bonus as may be determined by the Chief
Executive Officer at the end of each fiscal year. Such compensation shall be
paid to Employee in accordance with the Company's payroll practices in effect
from time to time during the Employment Term.
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4.2 Grant of Option. Effective at the commencement of the Employment
Term, the Company hereby grants to Employee an option ("Option") to acquire
200,000 shares of its common stock at an exercise price of $2.25 per share.
Effective with the commencement of the Employment Term, the Option shall vest
immediately with respect to 50,000 shares. The remainder of the Option shall
vest in three (3) successive annual installments of 50,000 shares each, with the
first installment vesting one (1) year from the date of this Agreement.
Notwithstanding the foregoing, if Employee's employment is terminated by the
Company without Cause (as defined below), the Option shall immediately vest and
become exercisable with respect to those shares that would have become vested in
the year of termination. The Option or any portion thereof shall expire if not
exercised within five (5) years from the date hereof. The Option shall be
governed by and shall be subject to the provisions of the Company's 1999 Stock
Option Plan. The Company shall prepare and deliver to Employee a separate grant
of the Option in accordance with the Plan in the form attached hereto as Exhibit
"A."
4.3 Vehicle Allowance. The Company shall reimburse Employee for up to
$500 per month for expenses incurred from the operation and maintenance of a
vehicle to be used in connection with Employee's duties herein. Employee hereby
agrees to provide such evidence of expenses as may reasonably be required by the
Company.
4.4 Continuing Education and Accountancy Association Membership. The
Company shall pay all expenses for Employee to attend such continuing education
seminars as are necessary for Employee to maintain Employee's professional
licenses and to become proficient in such areas as are reasonably determined by
the Chief Executive Officer to be necessary to the performance of Employee's
duties hereunder. The Company shall also pay any and all fees necessary to
maintain Employee's membership in the UACPA and the AICPA.
4.5 Additional Benefits. Employee shall be eligible to participate in
the Company's employee benefit plans for employees, including any such benefits
made available to similarly situated executives of the Company, if and when any
such plans may be adopted. Such benefit plans may include, without limitation,
the following: bonus plans, pension or profit sharing plans, incentive stock
plans and those plans covering life, disability, health, and dental insurance in
accordance with the rules established in the discretion of the Board of
Directors for individual participation in any such plans as may be in effect
from time to time.
4.6 Vacation, Sick Leave, and Holidays. During the Employment Term,
Employee shall be entitled to vacation and sick leave at full pay for a minimum
of the (3) weeks per year, or such other period as established by the Board of
Directors, in addition to the usual and customary holidays as established by
Company from time to time.
4.7 Deductions. During the Employment Term, the Company shall have the
right to deduct from Employee's Base Salary and other compensation due to
Employee hereunder any and all sums required for social security and withholding
taxes and for any other federal, state, or local tax or charge which may be
hereafter enacted or required by law as a charge on any such
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amounts paid to Employee.
5. Business Expenses
The Company shall promptly reimburse Employee for all reasonable
out-of-pocket business expenses incurred in fulfilling Employee's duties
hereunder, in accordance with the general policy of the Company in effect from
time to time, provided that Employee furnishes to the Company adequate records
and other documentary evidence required by all federal and state statutes and
regulations issued by the appropriate taxing authorities for the substantiation
of each such business expense as a deduction on the federal or state income tax
returns of the Company.
6. Termination
6.1 Generally. During the Employment Term, either the Company or
Employee may terminate Employee's employment with the Company hereunder at any
time, without or without Cause or Good Reason, in its or his sole discretion,
upon thirty (30) days prior written notice. Without limiting the foregoing,
Employee may immediately terminate his employment with the Company at any time
for Good Reason, and the Company may immediately terminate Employee's employment
for Cause. In the event Employee's employment is terminated hereunder, all
obligations of the Company and all obligations of Employee shall cease except as
provided in this Section 6 and in Sections 7-18 below. For purposes of this
Agreement:
(a) "Cause" shall mean (i) Employee's material breach of any of
the terms, covenants, representations, or warranties contained in this Agreement
which continues following not less than two (2) weeks written notice from the
Company of such breach; (ii) the Executive being guilty of willful misconduct on
the Company's premises or elsewhere, whether during the performance of his
duties or not, which materially and negatively affects the business or
reputation of the Company; (iii) Employee's being found guilty or entering a
plea of guilty or nolo contendre in a criminal court of a felony; or (iv)
Employee's willful breach of duty or habitual neglect of duty, or refusal to
comply with any reasonable or proper direction given by on behalf of the
President, Chief Executive Officer, or Board of Directors.
(b) "Good Reason" shall mean the termination of employment by
Employee as a result of (i) a material breach of this Agreement by the Company,
or (ii) a relocation of Employee outside Utah, Salt Lake, and Summit Counties.
(c) "Termination Date" shall mean (i) if this Agreement is
terminated on account of death, the date of death; (ii) if this Agreement is
terminated for Disability (as defined below), the date on which a notice of
termination due to Disability is delivered to the Employee (or such later date
as may be set forth in such notice); (iii) if this Agreement is terminated by
the Company, the date on which a notice of termination is delivered to the
Employee (or such later date as may be set forth in such notice); (iv) if the
Agreement is terminated by the Employee, the earlier of (x) the date on which
the Employee delivers the notice of termination (or such later date as may be
set forth in such
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notice) to the Company and (y) the date he ceases work; or (v) if this Agreement
expires by its terms, on the last day of the term of this Agreement.
(d) "Disability" shall mean the Employee is unable to perform the
essential functions of his job and render services of the character previously
performed in the ordinary course and that such inability continues for a period
of at least three (3) consecutive months (or for shorter periods totaling more
than four (4) months during any period of twelve (12) consecutive months).
6.2 Severance Pay.
(a) If (i) the Company terminates the employment of the Employee
without Cause, or (ii) the Employee terminates his employment for Good Reason,
the Employee shall be entitled to receive Base Salary until six (6) months
following the Termination Date, or until such time as the Employee has obtained
new employment at an annual salary equal to or greater than ninety percent (90%)
of Employee's Base Salary hereunder, whichever comes first (such payment after
the Termination Date is referred to as "Severance Pay"). During this time, the
Employee agrees to make a good faith effort to find new employment. The
Severance Pay outlined above shall be paid in accordance with the Company's
regular payroll schedule in effect at the time that Severance Pay is due.
(b) If (i) the Employee voluntarily terminates his employment
other than for Good Reason, or (ii) the Employee is terminated by the Company
for Cause, then the Employee shall be entitled to receive Base Salary (excluding
any accrued vacation) through the Termination Date only, and no other
compensation shall be payable.
(c) If the Employee's employment is terminated due to death or
Disability, the Employee shall be entitled to receive Base Salary and accrued
vacation through the Termination Date only, and no other compensation shall be
payable.
(d) In addition to the provisions of Section 6.2(a) and 6.2(b)
hereof, to the extent COBRA shall be applicable to the Company, the Employee
shall be entitled to continuation of group health plan benefits for such period
as may then be required by law if the Employee satisfies all applicable
conditions to the receipt of such continuation of benefits, including any
required elections or payments.
(e) Employee acknowledges that, upon termination of his
employment, he is entitled to no other compensation, severance or other benefits
other than those specifically set forth in this Agreement.
(f) The provisions of this Section 6.2 are intended to be and are
exclusive and in lieu of any other rights or remedies to which the Employee or
the Company may otherwise be entitled, either at law, tort or contract, in
equity, or under this Agreement, as a result of any termination of the
Employee's employment. The Employee shall be entitled to no benefits,
compensation or other payments or rights upon termination of employment other
than those benefits expressly set forth in this
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Section 6.2.
6.3 Option to Retain as Consultant. Upon termination of Employee's
employment, other than for reason of Employee's death, the Company shall have an
option to retain the services of Employee as a consultant for a period of one
year from the Termination Date. The Company shall exercise such option by giving
written notice thereof to Employee within ten (10) days after the Termination
Date, and the obligations of Employee as a consultant upon such exercise shall
be effective from the Termination Date. If the Company elects to exercise such
option, Employee shall make himself available to the Company during the period
of consultancy at least 2 hours during any one-month period. Employee agrees to
accept as consideration for such services as a consultant a fee of $100 per
hour. In addition, the Company shall reimburse Employee for any reasonable
expenses paid or incurred by Employee in connection with the performance of
duties as a consultant of the Company. Employee shall be entitled to no
compensation as a consultant other than the above fees and expenses. Employee
acknowledges and agrees to be bound by the obligation not to compete with the
Company as set forth in Section 7 below during the period for which Employee is
a consultant for the Company.
7. Confidential Information
Employee acknowledges that during Employee's employment or consultancy
with the Company, Employee will develop, discovery, have access to, and become
acquainted with technical, financial, marketing, personnel, and other
information relating to the present or contemplated products, services
(including prices, costs, sales, or content), or the conduct of business of the
Company or an Affiliate, computer programs, computer systems, operations,
processes, knowledge of the organization or the industry, research and
development operations, future business plans, customers (including identities
of customers and prospective customers, identities of individual contracts at
business entities which are customers or potential customers), business
relationships, or other information, which is of a confidential and proprietary
nature ("Confidential Information"). Employee agrees that all files, data,
records, reports, documents, and the like relating to such Confidential
Information, whether prepared by him or otherwise coming into Employee's
possession, shall remain the exclusive property of the Company (or its
Affiliates as the case may be), and Employee hereby agrees to promptly disclose
such Confidential Information to the Company upon request and hereby assigns to
the Company any rights which Employee may acquire in any Confidential
Information. Employee further agrees not to disclose or use any Confidential
Information and to use Employee's best efforts to prevent the disclosure or use
of any Confidential Information either during the term of employment or
consultancy or at any time thereafter, except as may be necessary in the
ordinary course of performing Employee's duties under this Agreement. Upon
termination of Employee's employment or consultancy with the Company for any
reason, Employee shall promptly deliver to the Company all materials, documents,
data, equipment, and other physical property of any nature containing or
pertaining to any Confidential Information, and Employee shall not take from the
Company's premises any such material or equipment or any reproduction thereof.
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8. Invention Assignment
8.1 Disclosure of Inventions. Employee hereby agrees that if he
conceives, learns, makes, or first reduces to practice, either alone or jointly
with others, any inventions, improvements, original works of authorship,
formulas, processes, computer programs, sales or marketing techniques, know-how,
or data (hereinafter referred to as "Inventions") relating to the business
and/or technology of the Company while he is employed by the Company, he will
promptly disclose such Inventions to the Company or to any person designated by
the Company.
8.2 Ownership, Assignment, Assistance, and Power of Attorney. All
Inventions relating to the Company's business, operations, or research and
development which result from work performed by Employee for the Company shall
be the sole and exclusive property of the Company, and the Company shall have
the right to use and to apply for patents, copyrights, or other statutory or
common law protections for such Inventions in any country. Employee hereby
assigns to the Company any rights which Employee has acquired or which Employee
may acquire in such Inventions. Furthermore, Employee agrees to assist the
Company in every proper way at the Company's expense to obtain patents,
copyrights, and other statutory or common law protections for such Inventions in
any country and to enforce such rights from time to time. Specifically, Employee
agrees to execute all documents as the Company may use in applying for and in
obtaining or enforcing such patents, copyrights, and other statutory or common
law protections, together with any assignments thereof to the Company or to any
person designated by the Company. Employee's obligations under this paragraph
shall continue beyond the termination of his employment with the Company, but
the Company shall compensate Employee at a reasonable rate after such
termination for the time which Employee actually spends at the Company's request
in rendering such assistance. In the event the Company is unable for any reason
whatsoever to secure Employee's signature to any lawful document required to
apply for or to enforce any patent, copyright, or other statutory or common law
protections for such Inventions, Employee hereby irrevocably and severally
designates and appoints the Company and its duly authorized officers and agents
as Employee's agents and attorneys-in-fact to act in Employee's stead to execute
such documents and to do such other lawful and necessary acts to further the
issuance or prosecution of such patents, copyrights, and other statutory or
common law protections, and Employee hereby declares that such documents or such
acts shall have the same legal force and effect as if such documents were
executed by Employee or such acts were done by Employee.
8.3 Exclusion of Prior Inventions. Employee has identified on Exhibit B
attached hereto a complete list of all Inventions which Employee has conceived,
learned, made or first reduced to practice, either alone or jointly with others,
prior to Employee's employment with the Company and which Employee desires to
exclude from the operation of this Agreement. If no Inventions are listed on
this Exhibit B, Employee represents that he has made no such Inventions at the
time of signing this Agreement.
9. No Conflicts
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Employee hereby represents that, to the best of Employee's knowledge,
Employee's performance of all the terms of this Agreement and work as an
employee or consultant of the Company does not breach any oral or written
agreement which Employee has made prior to employment with the Company
hereunder.
10. Equitable Remedies
Employee acknowledges that Employee's obligations hereunder are special,
unique, and extraordinary, and that a breach by Employee of certain provisions
of this Agreement, including without limitation Sections 7 and 8 above, would
cause irreparable harm to the Company for which damages at law would be an
inadequate remedy. Accordingly, Employee hereby agrees that in any such instance
the Company shall be entitled to seek injunctive or other equitable relief in
addition to any other remedy to which it may be entitled. All of the rights of
the Company from whatever source derived, shall be cumulative and not
alternative.
11. Assignment
This Agreement is for the unique personal services of Employee and is
not assignable or delegable in whole or in part by Employee without the consent
of the Board of Directors of the Company. This Agreement may be assigned or
delegated in whole or in part by the Company and, in such case, the terms of
this Agreement shall inure to the benefit of, be assumed by, and be binding upon
the entity to which this Agreement is assigned.
12. Waiver or Modification
Any waiver, modification, or amendment of any provision of this
Agreement shall be effective only if in writing in a document that specifically
refers to this Agreement and such document is signed by the Parties hereto.
13. Resolution of Disputes
The Parties hereby agree that all disputes concerning this Agreement
shall be subject to binding arbitration by an independent arbitrator to be
jointly selected and agreed upon by the Parties hereto. In the event that the
Parties cannot agree upon an independent arbitrator, the Parties hereby consent
to subject any such dispute to binding arbitration in accordance with the rules
of the American Arbitration Association. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The Parties
agree that the Company and Employee shall equally bear the costs of any such
arbitration under this Section 14.
14. Entire Agreement
This Agreement constitutes the full and complete understanding and
agreement of the Parties hereto with respect to the subject matter covered
herein and supersedes all prior oral or written understandings and agreements
with respect thereto.
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15. Employee Acknowledgment.
Employee acknowledges that (i) he was consulted with or has had the
opportunity to consult with independent counsel of his own choice concerning
this Agreement, and has been advised to do so by the Company, and (ii) that he
has read and understands the Agreement, is fully aware of its legal effect, and
has entered into it freely based upon his own judgment.
16. Severability
If any provision of this Agreement is found to be unenforceable by a
court of competent jurisdiction, the remaining provisions shall nevertheless
remain in full force and effect.
17. Notices
Any notice required hereunder to be given by either party shall be in
writing and shall be delivered personally or sent by certified or registered
mail, postage prepaid, or by private courier, with written verification of
delivery, or by facsimile transmission to the other party to the address or
telephone number set forth below or to such other address or telephone number as
either party may designate from time to time according to this provision. A
notice delivered personally shall be effective upon receipt. A notice sent by
facsimile transmission shall be effective twenty-four hours after the dispatch
thereof. A notice delivered by mail or by private courier shall be effective on
the third day after the day of mailing.
(a) To Employee at: Xxxxx X. Xxxx
0000 Xxxx, Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
(b) To the Company at: XxxxxxXxxx.xxx International, Inc.
00000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
18. Governing Law; Venue
This Agreement shall be governed by and construed in accordance with the
laws of the State of Utah without regard to the conflict of laws. The Parties
further agree that proper venue and jurisdiction for any dispute under this
agreement shall be the courts in the State of Utah.
IN WITNESS WHEREOF, Employee has signed this Agreement personally and
the Company has caused this Agreement to be executed by its duly authorized
representative to be effective as of the date first given above.
XXXXXXXXXX.XXX INTERNATIONAL, INC. EMPLOYEE
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxx
--------------------------------- ---------------------------------
Xxxxxxx Xxxxx Xxxxx Xxxx
Executive Vice President
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EXHIBIT "A"
XXXXXXXXXX.XXX INTERNATIONAL, INC.
1999 STOCK OPTION PLAN
ARTICLE 1.
GENERAL PROVISIONS
1.1 PURPOSE OF THE PLAN
This 1999 Stock Option Plan (the "Plan") is intended to promote the
interests of XXXXXXXXXX.XXX INTERNATIONAL, INC., a Delaware corporation, (the
"Corporation") by providing eligible persons with the opportunity to acquire or
increase their proprietary interest in the Corporation as an incentive for them
to remain in the Service of the Corporation.
Capitalized terms shall have the meanings assigned to such terms in the
attached Appendix.
1.2 ADMINISTRATION OF THE PLAN
a. Prior to the Section 12(g) Registration Date, the Plan shall be
administered by the Board or a committee of the Board.
b. Beginning with the Section 12(g) Registration Date, the Primary
Committee shall have sole and exclusive authority to administer the Plan with
respect to Section 16 Insiders. Administration of the Plan with respect to all
other persons eligible under the Plan may, at the Board's discretion, be vested
in the Primary Committee or a Secondary Committee, or the Board may retain the
power to administer the Plan with respect to all such persons.
c. Members of the Primary Committee or any Secondary Committee shall
serve for such period of time as the Board may determine and may be removed by
the Board at any time. The Board may also terminate the functions of any
Secondary Committee at any time and reassume all powers and authority previously
delegated to such committee.
d. Each Plan Administrator shall, within the scope of its administrative
functions under the Plan, have full power and authority to establish such rules
and regulations as it may deem appropriate for proper administration of the Plan
and to make such determinations under, and issue such interpretations of, the
provisions of the Plan and any outstanding options thereunder as it may deem
necessary or advisable. Decisions of the Plan Administrator within the scope of
its administrative functions under the Plan shall be final and binding on all
parties who have an interest in the Plan under its jurisdiction or any option
thereunder.
e. Service on the Primary Committee or the Secondary Committee
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shall constitute service as a Board member, and members of each such committee
shall accordingly be entitled to full indemnification and reimbursement as Board
members for their service on such committee. No member of the Primary Committee
or the Secondary Committee shall be liable for any act or omission made in good
faith with respect to the Plan or any option grants under the Plan.
f. Each Plan Administrator shall, within the scope of its administrative
jurisdiction under the Plan, have full authority (subject to the provisions of
the Plan) to determine which eligible persons are to receive option grants, the
time or times when such option grants are to be made, the number of shares to be
covered by each such grant, the status of the granted option as either an
Incentive Option or a Non-Statutory Option, the time or times at which each
option is to become exercisable, the vesting schedule (if any) applicable to the
option shares, the acceleration of such vesting schedule, the maximum term for
which the option is to remain outstanding, whether the option shares shall be
subject to rights of repurchase and/or rights of first refusal, and all other
terms and conditions of the option grants.
1.3 ELIGIBILITY
The following persons shall be eligible to participate in the
Plan:
a. Employees,
b. non-employee members of the Board or the board of directors of
any Parent or Subsidiary, and
c. consultants and other independent advisors who provide
Services to the Corporation or any Parent or Subsidiary.
1.4 STOCK SUBJECT TO THE PLAN
a. The stock issuable under the Plan shall be shares of
authorized but unissued Common Stock, including shares repurchased by the
Corporation on the open market. The maximum number of shares of Common Stock
which may be issued over the term of the Plan shall not exceed twenty million
(20,000,000) shares, which number of shares may be changed from time to time in
accordance with Section 3.4 below.
b. Shares of Common Stock subject to outstanding options shall be
available for subsequent issuance under the Plan to the extent (i) the options
expire or terminate for any reason prior to exercise in full or (ii) the options
are cancelled in accordance with the cancellation-regrant provisions of Article
2. However, should the Exercise Price be paid with shares of Common Stock or
should shares of Common Stock otherwise issuable under the Plan be withheld by
the Corporation in satisfaction of the withholding taxes incurred in connection
with the exercise of an option under the Plan, then the number of shares of
Common Stock available for issuance under the Plan shall be reduced by the gross
number of shares for which the option is exercised, and not by the net number of
shares of Common Stock issued to the holder
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of such option.
c. Should any change be made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the maximum number and/or class of securities issuable
under the Plan, (ii) the number and/or class of securities for which any one
person may be granted options per calendar year, and (iii) the number and/or
class of securities and the Exercise Price in effect under each outstanding
option in order to prevent the dilution or enlargement of benefits thereunder.
The adjustments determined by the Plan Administrator shall be final, binding,
and conclusive.
ARTICLE 2.
OPTION GRANT PROGRAM
2.1 OPTION TERMS
Each option shall be evidenced by one or more documents in the
form approved by the Plan Administrator; provided, however, that each such
document shall comply with the terms specified below. Each document evidencing
an Incentive Option shall, in addition, be subject to the provisions of Section
2.2 of the Plan, below.
a. Exercise Price
(1) The Exercise Price shall be fixed by the Plan
Administrator but shall not be less than one hundred percent (100%) of the Fair
Market Value per share of Common Stock on the Grant Date.
(2) The Exercise Price shall become immediately due upon
exercise of the option and shall, subject to the provisions of Article 3.1, and
the documents evidencing the option, be payable in one or more of the forms
specified below:
(a) cash or check made payable to the Corporation,
(b) shares of Common Stock held for the requisite
period necessary to avoid a charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on the Exercise Date, or
(c) to the extent the option is exercised for vested
shares, through a special sale and remittance procedure pursuant to which the
Optionee shall concurrently provide irrevocable written instructions to (a) a
Corporation-designated brokerage firm to effect the immediate sale of the
Purchased Shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate
Exercise Price payable for the Purchased Shares plus all applicable federal,
state and local income and employment taxes required to be withheld by the
Corporation by reason of such exercise and (b) the Corporation to deliver the
certificates for the Purchased Shares
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directly to such brokerage firm in order to complete the sale.
Except to the extent the sale and remittance procedure is
utilized, payment of the Exercise Price for the Purchased Shares must be made on
the Exercise Date.
b. Exercise and Term of Options. Each option shall be exercisable
at such time or times, during such period and for such number of shares as shall
be determined by the Plan Administrator and set forth in the documents
evidencing the option. However, no option shall have a term in excess of ten
(10) years measured from the Grant Date.
c. Effect of Termination of Service
(1) The following provisions shall govern the exercise of
any options held by the Optionee at the time of cessation of Service:
(a) Any option outstanding at the time of the
Optionee's cessation of Service for any reason except death, Permanent
Disability or Misconduct shall remain exercisable for a three (3) month period
thereafter, provided no option shall be exercisable after the Expiration Date.
(b) Any option outstanding at the time of the
Optionee's cessation of Service due to death or Permanent Disability shall
remain exercisable for a twelve (12) month period thereafter, provided no option
shall be exercisable after the Expiration Date. Subject to the foregoing, any
option exercisable in whole or in part by the Optionee at the time of death may
be exercised subsequently by the personal representative of the Optionee's
estate or by the person or persons to whom the option is transferred pursuant to
the Optionee's will or in accordance with the laws of descent and distribution.
(c) Should the Optionee's Service be terminated for
Misconduct, then all outstanding options held by the Optionee shall terminate
immediately and cease to be outstanding.
(d) During the applicable post-Service exercise
period, the option may not be exercised in the aggregate for more than the
number of shares for which the option is exercisable on the date of the
Optionee's cessation of Service; the option shall, immediately upon the
Optionee's cessation of Service, terminate and cease to be outstanding to the
extent the option is not otherwise at that time exercisable. Upon the expiration
of the applicable exercise period or (if earlier) upon the Expiration Date, the
option shall terminate and cease to be outstanding for any shares for which the
option has not been exercised.
(2) The Plan Administrator shall have the discretion,
exercisable either at the time an option is granted or at any time while the
option remains outstanding, to:
(a) extend the period of time for which the option is
to remain exercisable following the Optionee's cessation of Service from the
period otherwise in effect for that option to such greater period of
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time as the Plan Administrator shall deem appropriate, but in no event beyond
the Expiration Date, and/or
(b) permit the option to be exercised, during the
applicable post-Service exercise period, not only with respect to the number of
shares of Common Stock for which such option is exercisable at the time of the
Optionee's cessation of Service but also with respect to one or more additional
shares that would have vested under the option had the Optionee continued in
Service.
d. Stockholder Rights. The holder of an option shall have no
stockholder rights with respect to the shares subject to the option until such
person shall have exercised the option, paid the Exercise Price, and become a
holder of record of the Purchased Shares.
e. Limited Transferability of Options. During the lifetime of the
Optionee, Incentive Options may be exercised only by the Optionee, and shall not
be assignable or transferable except by will or the laws of descent and
distribution following the Optionee's death. Non-Statutory Options may be
assigned or transferred in whole or in part only (i) during the Optionee's
lifetime if in connection with the Optionee's estate plan to one or more members
of the Optionee's immediate family (spouse and children) or to a trust
established exclusively for the benefit of one or more such immediate family
members, or (ii) by will or the laws of descent and distribution following the
Optionee's death. The assigned portion may only be exercised by the person or
persons who acquire a proprietary interest in the option pursuant to the
assignment. The terms applicable to the assigned portion shall be the same as
those in effect for the option immediately prior to such assignment and shall be
set forth in such documents issued to the assignee as the Plan Administrator may
deem appropriate.
2.3 INCENTIVE OPTIONS
The terms specified below shall apply to all Incentive Options.
Except as modified by the provisions of this Section 2.2, all the provisions of
this Plan shall apply to Incentive Options. Options specifically designated as
Non-Statutory Options when issued under the Plan shall not be subject to the
terms of this Section 2.2.
a. Eligibility. Incentive Options may only be granted to
Employees.
b. Exercise Price. The Exercise Price shall not be less than one
hundred percent (100%) of the Fair Market Value per share of Common Stock on the
Grant Date.
c. Dollar Limitation. The aggregate Fair Market Value of the
shares of Common Stock (determined as of the respective date or dates of grant)
for which one or more options granted to any Employee under the Plan (or any
other option plan of the Corporation or any Parent or Subsidiary) may for the
first time become exercisable as Incentive Options during any one (1) calendar
year shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the
extent the Employee holds two (2) or
14
more such options which become exercisable for the first time in the same
calendar year, the foregoing limitation on the exercisability of such options as
Incentive Options shall be applied in the order in which such options are
granted.
d. 10% Stockholder. If an Employee to whom an Incentive Option is
granted is a 10% Stockholder, then the Exercise Price shall not be less than one
hundred ten percent (110%) of the Fair Market Value per share of Common Stock on
the Grant Date, and the option term shall not exceed five (5) years measured
from the Grant Date.
e. Holding Period. Shares purchased pursuant to an option shall
cease to qualify for favorable tax treatment as Incentive Option Shares if and
to the extent Optionee disposes of such shares within two (2) years of the Grant
Date or within one (1) year of Optionee's purchase of said shares.
2.3 CORPORATE TRANSACTION/CHANGE IN CONTROL
a. In the event of any Corporate Transaction, the Board of
Directors shall have the sole discretion to elect that each outstanding option
shall automatically accelerate so that each such option shall, immediately prior
to the effective date of the Corporate Transaction, become fully exercisable for
all of the shares of Common Stock at the time subject to such option and may be
exercised for any or all of those shares as fully-vested shares of Common Stock.
The Board may exercise its discretion to accelerate the vesting of options
whether or not (i) such option is, in connection with the Corporate Transaction,
either to be assumed by the successor corporation or Parent thereof or to be
replaced with a comparable option to purchase shares of the capital stock of the
successor corporation or Parent thereof, (ii) such option is to be replaced with
a cash incentive program of the successor corporation which preserves the spread
existing on the unvested option shares at the time of the Corporate Transaction
and provides for subsequent payout in accordance with the same vesting schedule
applicable to such option, except to the extent that the acceleration of such
option is subject to other limitations imposed by the Plan Administrator at the
time of the option grant. The determination of option comparability under clause
(i) above shall be made by the Plan Administrator, whose determination shall be
final, binding and conclusive.
b. In the event of any Corporate Transaction, the Board of
Directors shall have sole discretion to elect that all outstanding repurchase
rights may also be terminated automatically whether or not those repurchase
rights are to be assigned to the successor corporation (or Parent thereof) in
connection with such Corporate Transaction.
c. The Plan Administrator's discretion under Sections 2.3.a. and
b. above shall be exercisable either at the time the option is granted or at any
time while the option remains outstanding, whether or not those options are to
be assumed or replaced (or those repurchase rights are to be assigned) in the
Corporate Transaction. The Plan Administrator shall also have the discretion to
grant options which do not accelerate whether or not such options are assumed
(and to provide for repurchase rights that do not terminate whether or not such
rights are
15
assigned) in connection with a Corporate Transaction.
d. If the Board of Directors elects the automatic acceleration of
some or all of the outstanding options upon the occurrence of a Corporate
Transaction, all such outstanding options shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or
parent thereof) immediately following the consummation of the Corporate
Transaction.
e. Each option which is assumed in connection with a Corporate
Transaction shall be appropriately adjusted, immediately after such Corporate
Transaction, to apply to the number and class of securities that would have been
issuable to the Optionee in consummation of such Corporate Transaction had the
option been exercised immediately prior to such Corporate Transaction.
Appropriate adjustments shall also be made to (i) the number and class of
securities available for issuance under the Plan following the consummation of
such Corporate Transaction, (ii) the exercise price payable per share under each
outstanding option, provided the aggregate exercise price payable for such
securities shall remain the same and (iii) the maximum number of securities
and/or class of securities for which any one person may be granted stock
options.
f. The Plan Administrator shall have the discretion, exercisable
at the time the option is granted or at any time while the option remains
outstanding, to provide for the automatic acceleration of any options assumed or
replaced in a Corporate Transaction that do not otherwise accelerate at that
time (and the termination of any of the Corporation's outstanding repurchase
rights that do not otherwise terminate at the time of the Corporate Transaction)
in the event the Optionee's Service should subsequently terminate by reason of
an Involuntary Termination within eighteen (18) months following the effective
date of such Corporate Transaction. Any options so accelerated shall remain
exercisable for shares until the earlier of (i) the expiration of the option
term or (ii) the expiration of the one (1)-year period measured from the
effective date of the Involuntary Termination.
g. The Plan Administrator shall have the discretion, exercisable
either at the time the option is granted or at any time while the option remains
outstanding, to (i) provide for the automatic acceleration of one or more
outstanding options (and the automatic termination of one or more outstanding
repurchase rights) upon the occurrence of a Change in Control or (ii) condition
any such option acceleration (and the termination of any outstanding repurchase
rights) upon the subsequent Involuntary Termination of the Optionee's Service
within a specified period (not to exceed eighteen (18) months) following the
effective date of such Change in Control. Any options accelerated in connection
with a Change in Control shall remain fully exercisable until the expiration or
sooner termination of the option term.
h. The portion of any Incentive Option accelerated in connection
with a Corporate Transaction or Change in Control shall remain exercisable as an
Incentive Option only to the extent the applicable One Hundred Thousand Dollar
($100,000) limitation is not exceeded. To the extent such dollar limitation is
exceeded, the accelerated portion of such
16
option shall be exercisable as a Non-Statutory Option under the federal tax
laws.
i. The grant of options under the Plan shall in no way affect the
right of the Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
2.4 CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any
time and from time to time, with the consent of the affected option holders, the
cancellation of any or all outstanding options under the Plan and to grant in
substitution new options covering the same or different number of shares of
Common Stock but with an Exercise Price based on the Fair Market Value per share
of Common Stock on the new Grant Date.
ARTICLE 3.
MISCELLANEOUS
3.1 FINANCING
a. The Plan Administrator may permit any Optionee to pay the
option Exercise Price by delivering a promissory note payable in one or more
installments. The terms of any such promissory note (including the interest rate
and the terms of repayment) shall be established by the Plan Administrator in
its sole discretion. Promissory notes may be authorized with or without security
or collateral. In all events, the maximum credit available to the Optionee may
not exceed the sum of (i) the aggregate option Exercise Price payable for the
Purchased Shares plus (ii) the amount of any federal, state and local income and
employment tax liability incurred by the Optionee in connection with the option
exercise.
b. The Plan Administrator may, in its discretion, determine that
one or more such promissory notes shall be subject to forgiveness by the
Corporation in whole or in part upon such terms as the Plan Administrator may
deem appropriate.
3.2 TAX WITHHOLDING
a. The Corporation's obligation to deliver shares of Common Stock
upon the exercise of options under the Plan shall be subject to the satisfaction
of all applicable federal, state and local income and employment tax withholding
requirements.
b. The Plan Administrator may, in its discretion, provide any or
all holders of Non-Statutory Options under the Plan with the right to use shares
of Common Stock in satisfaction of all or part of the Taxes incurred by such
holders in connection with the exercise of their options. Such right may be
provided to any such holder in either or both of the following formats:
(1) Stock Withholding: The election to have the
17
Corporation withhold, from the shares of Common Stock otherwise issuable upon
the exercise of such Non-Statutory Option, a portion of those shares with an
aggregate Fair Market Value equal to the percentage of the Taxes (not to exceed
one hundred percent (100%)) designated by the holder.
(2) Stock Delivery: The election to deliver to the
Corporation, at the time the Non-Statutory Option is exercised, one or more
shares of Common Stock previously acquired by such holder (other than in
connection with the option exercise triggering the Taxes) with an aggregate Fair
Market Value equal to the percentage of the Taxes (not to exceed one hundred
percent (100%)) designated by the holder.
3.3 EFFECTIVE DATE AND TERM OF THE PLAN
a. The Plan shall become effective on the Plan Effective Date.
However, no shares shall be issued under the Plan pursuant to Incentive Options
until the Plan is approved by the Corporation's stockholders. If such
stockholder approval is not obtained within twelve (12) months after the Plan
Effective Date, then all Incentive Options previously granted under this Plan
shall automatically convert into Non-Statutory Options.
b. The Plan shall terminate upon the earliest of (i) June 30,
2008, (ii) the date on which all shares available for issuance under the Plan
shall have been issued, or (iii) the termination of all outstanding options in
connection with a Corporate Transaction. Upon such Plan termination, all
outstanding options shall continue to have force and effect in accordance with
the provisions of the documents evidencing such options.
3.4 AMENDMENT OF THE PLAN
a. The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects. However, no such
amendment or modification shall adversely affect any rights and obligations with
respect to options at the time outstanding under the Plan unless each affected
Optionee consents to such amendment or modification. In addition, amendments to
the Plan shall be subject to approval of the Corporation's stockholders to the
extent required by applicable laws or regulations.
a. Options to purchase shares of Common Stock may be granted
under the Plan that are in each instance in excess of the number of shares then
available for issuance under the Plan, provided any excess shares actually
issued are held in escrow until there is obtained Board approval (and
shareholder approval if required by applicable laws or regulations) of an
amendment sufficiently increasing the number of shares of Common Stock available
for issuance under the Plan.
3.5 USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of
shares of Common Stock under the Plan shall be used for general corporate
purposes.
18
3.6 REGULATORY APPROVALS
a. The implementation of the Plan, the granting of any option
under the Plan, and the issuance of any shares of Common Stock upon the exercise
of any option shall be subject to the Corporation's obtaining all approvals and
permits required by regulatory authorities having jurisdiction over the Plan and
the options granted under it, and the shares of Common Stock issued pursuant to
the Plan.
b. No shares of Common Stock shall be issued or delivered under
the Plan unless and until there shall have been compliance with all applicable
requirements of federal and state securities laws and all applicable listing
requirements of any stock exchange (or the Nasdaq market, if applicable) on
which Common Stock is then listed for trading.
3.7 EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee any right to
continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation (or any Parent or
Subsidiary employing or retaining such person) or of the Optionee, which rights
are hereby expressly reserved by each, to terminate such person's Service at any
time for any reason, with or without cause.
APPENDIX
The following definitions shall be in effect under the Plan and the Plan
Documents:
1. Board shall mean the Corporation's Board of Directors.
2. Change in Control shall mean a change in ownership or control of the
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or related
group of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation), of beneficial ownership (within the meaning of Rule 13d-3 of the
0000 Xxx) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders, which
the Board does not recommend such stockholders to accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (A) who were still in office
at the time the Board approved such election or nomination.
3. Code shall mean the Internal Revenue Code of 1986, as amended.
4. Common Stock shall mean the Corporation's common stock.
19
5. Corporate Transaction shall mean either of the following
stockholder-approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different from the
persons holding those securities immediately prior to such transaction; or
(ii) the sale, transfer or other disposition of all or substantially all
of the Corporation's assets in complete liquidation or dissolution of the
Corporation.
6. Eligible Director shall mean a non-employee Board member eligible to
participate in the Plan.
7. Employee shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
8. Exercise Date shall mean the date on which the Corporation shall have
received written notice of the option exercise.
9. Exercise Price shall mean the exercise price per share as specified in
the Stock Option Grant.
10 Expiration Date shall mean the date on which the option expires as
specified in the Stock Option Grant.
11. Fair Market Value per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:
(i) If the Common Stock is traded at the time on the Nasdaq National
Market, then the Fair Market Value shall be the closing selling price per share
of Common Stock on the date in question, as such price is reported by the
National Association of Securities Dealers on the Nasdaq National Market or any
successor system. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock Exchange,
then the Fair Market Value shall be the closing selling price per share of
Common Stock on the date in question on the Stock Exchange determined by the
Plan Administrator to be the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such exchange. If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(iii) If the Common Stock is not listed on any Stock Exchange nor traded
on the Nasdaq National Market, then the Fair Market Value shall be determined by
the Plan Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate.
(iv) For purposes of any option grants made on the Underwriting Date,
the Fair Market Value shall be deemed to be equal to the price per share at
which the Common Stock is sold in the initial public offering pursuant to the
Underwriting Agreement.
12. First Refusal Right shall mean the right granted to the Corporation in
Section E of the Stock Option Exercise Notice and Purchase Agreement.
20
13. Grant Date shall mean the date on which the option is granted to
Optionee as specified in the Stock Option Grant.
14. Incentive Option shall mean an option which satisfies the requirements
of Code Section 422.
15. Involuntary Termination shall mean the termination of the Service of any
individual which occurs by reason of:
(i) such individual's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
(ii) such individual's voluntary resignation following (A) a change in
his or her position with the Corporation which materially reduces his or her
level of responsibility, (B) a reduction in his or her level of compensation
(including base salary, fringe benefits and participation in
corporate-performance based bonus or incentive programs) by more than fifteen
percent (15%) or (C) a relocation of such individual's place of employment by
more than fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without the individual's consent.
16. Market Stand Off shall mean the market stand off restriction on
disposition of the Purchased Shares as specified in Section F of the Stock
Option Exercise Notice and Purchase Agreement.
17. Misconduct shall mean the commission of any act of fraud, embezzlement
or dishonesty by the Optionee, any unauthorized use or disclosure by such person
of confidential information or trade secrets of the Corporation (or any Parent
or Subsidiary), or any other intentional misconduct by such person adversely
affecting the business or affairs of the Corporation (or any Parent or
Subsidiary) in a material manner. The foregoing definition shall not be deemed
to be inclusive of all the acts or omissions which the Corporation (or any
Parent or Subsidiary) may consider as grounds for the dismissal or discharge of
any Optionee or other person in the Service of the Corporation (or any Parent or
Subsidiary).
18. 1933 Act shall mean the Securities Act of 1933, as amended.
19. 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
20. Non-Statutory Option shall mean an option not intended to satisfy the
requirements of Code Section 422.
21. Optionee shall mean any person to whom an option is granted under Plan.
22. Option Shares shall mean the number of shares of Common Stock subject to
the option as specified in the Stock Option Grant.
23. Owner shall mean Option and all subsequent holders of the Purchased
Shares who derive their chain of ownership through a Permitted Transfer from
Optionee.
24. Parent shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one or the other corporations
in such chain.
25. Permanent Disability or Permanently Disabled shall mean the inability of
the Optionee to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment
21
expected to result in death or to be of continuous duration of twelve (12)
months or more.
26. Permitted Transfer shall mean (i) a gratuitous transfer of the Purchased
Shares, provided and only if Optionee obtains the Corporation's prior written
consent to such transfer, (ii) a transfer of title to the Purchased Shares
effected pursuant to Optionee's will or the laws of intestate succession
following Optionee's death, or (iii) a transfer to the Corporation in pledge as
security for any purchase-money indebtedness incurred by Optionee in connection
with the acquisition of the Purchased Shares.
27. Plan Administrator shall mean the particular entity, whether the Board
or a committee of the Board, which is authorized to administer the Plan with
respect to one or more classes of eligible persons, to the extent such entity is
carrying out its administrative functions under the Plan with respect to the
persons under its jurisdiction.
28. Plan Documents shall mean the Plan, the Stock Option Grant, and Stock
Option Exercise Notice and Purchase Agreement, collectively.
29. Plan Effective Date shall mean July 1, 1998, the date as of which the
Plan was adopted by the Board.
30. Primary Committee shall mean the committee of two (2) or more
non-employee Board members (as defined in the regulations to Section 16 of the
0000 Xxx) appointed by the Board to administer the Plan with respect to Section
16 Insiders.
31. Purchased Shares shall mean the shares purchased upon exercise of the
Option.
32. Recapitalization shall mean any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other charge
affecting the Corporation's outstanding Common Stock as a class without the
Corporation's receipt of consideration.
33. Reorganization shall mean any of the following transactions:
(i) a merger or consolidation in which the Corporation is not the
surviving entity;
(ii) a sale, transfer, or other disposition of all or substantially all
of the Corporation's assets;
(iii) a reverse merger in which the Corporation is the surviving entity
but in which the Corporation's outstanding voting securities are transferred in
whole or in part to a person or persons different from the persons holding those
securities immediately prior to the merger; or
(iv) any transaction effected primarily to change the state in which the
Corporation is incorporated or to create a holding company structure.
34. Repurchase Right shall mean the Corporation's right to repurchase
Purchased Shares as set forth in Section D of the Stock Option Exercise Notice
and Repurchase Agreement.
35. SEC shall mean the Securities Exchange Commission.
36. Secondary Committee shall mean a committee of two (2) or more Board
members appointed by the Board to administer the Plan with respect to eligible
persons other than Section 16 Insiders.
37 Section 12(g) Registration Date shall mean the date on which the Common
Stock is first registered under Section 12(g) of the 1934 Act.
22
38. Section 16 Insider shall mean an officer or director of the Corporation
subject to the short-swing profit liabilities of Section 16 of the 1934 Act.
39. Service shall mean the performance of services to the Corporation (or
any Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor, except to the extent otherwise specifically provided in the documents
evidencing the option grant.
40. Stock Exchange shall mean either the American Stock Exchange, the New
York Stock Exchange, or another regional stock exchange.
41. Stock Option Exercise Notice and Purchase Agreement shall mean the
agreement of said title in substantially the form of Exhibit A to the Stock
Option Grant, pursuant to which Optionee gives notice of his intent to exercise
the option and purchase Shares.
42. Stock Option Grant shall mean the Stock Option Grant document, pursuant
to which Optionee has been informed of the basic terms of the option granted
under the Plan.
43. Subsidiary shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided each
corporation (other than the last corporation) in the unbroken chain owns, at the
time of the determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
44. Taxes shall mean the Federal, state and local income and employment tax
liabilities incurred by the holder of Non-Statutory Options in connection with
the exercise of those options.
45. 10% Stockholder shall mean the owner of stock (as determined under Code
Section 424(d)) possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Corporation (or any Parent or
Subsidiary).
