PEERLESS SYSTEMS CORPORATION STOCK OPTION GRANT NOTICE AND STOCK OPTION AGREEMENT
Exhibit 10.2
PEERLESS SYSTEMS CORPORATION
2005 INCENTIVE AWARD PLAN
STOCK OPTION GRANT NOTICE AND
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
Peerless Systems Corporation, a Delaware corporation (the “Company”), pursuant to its 2005
Incentive Award Plan (the “Plan”), hereby grants to the holder listed below (“Participant”), an
option to purchase the number of shares of the Company’s common stock, par value $0.001 (“Stock”),
set forth below (the “Option”). This Option is subject to all of the terms and conditions set
forth herein and in the Stock Option Agreement attached hereto as Exhibit A (the “Stock
Option Agreement”) and the Plan, which are incorporated herein by reference. Unless otherwise
defined herein, the terms defined in the Plan shall have the same defined meanings in this Grant
Notice and the Stock Option Agreement.
Participant: |
Xxxxxx Xxxxxxx | |||
Grant Date: |
January 10, 2008 | |||
Exercise Price per Share: |
$2.38 | |||
Total Exercise Price: |
$476,000.00 | |||
Total Number of Shares Subject to the Option: |
200,000 shares | |||
Expiration Date: |
January 10, 2018 | |||
Type of Option:
|
þ Incentive Stock Option o Non-Qualified Stock Option | |
Vesting Schedule:
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This Option shall vest and become exercisable for the shares of Stock in a series of 4 equal installments on each anniversary of the Grant Date and, if applicable, pursuant to that certain Change in Control Severance Agreement and Employment Agreement, each among the Company, Participant and T1 Delaware Corporation. In no event, however, shall this Option vest and become exercisable for any additional shares of Stock after Participant’s Termination of Employment, Termination of Directorship or Termination of Consultancy, as applicable, except as provided herein and in each of the Change in Control Severance Agreement and Employment Agreement. |
By his or her signature, Participant agrees to be bound by the terms and conditions of the
Plan, the Stock Option Agreement and this Grant Notice. Participant has reviewed the Stock Option
Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Grant Notice and fully understands all provisions of this
Grant Notice, the Stock Option Agreement and the Plan. Participant hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Administrator of the Plan
upon any questions arising under the Plan or relating to the Option.
PEERLESS SYSTEMS CORPORATION
|
PARTICIPANT | |||||||||||||
By:
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By: | |||||||||||||
| Print Name: | Xxxxxxx X. Roll | Print Name: | Xxxxxx Xxxxxxx | |||||||||||
Title:
|
President and CEO | |||||||||||||
| Address: | 0000 Xxxxxxxxx Xxxxxx | Address: | 0000 Xxxxx 000xx Xxx | |||||||||||
| El Segundo, CA 90245 | Scottsdale, AZ, 85259 | |||||||||||||
EXHIBIT A
TO STOCK OPTION GRANT NOTICE
Pursuant to the Stock Option Grant Notice (the “Grant Notice”) to which this Stock Option
Agreement (this “Agreement”) is attached, Peerless Systems Corporation, a Delaware corporation (the
“Company”), has granted to Participant an option under the Company’s 2005 Incentive Award Plan (the
“Plan”) to purchase the number of shares of Stock indicated in the Grant Notice.
ARTICLE I
GENERAL
1.1 Defined Terms. Capitalized terms not specifically defined herein shall have the
meanings specified in the Plan and the Grant Notice.
1.2 Incorporation of Terms of Plan. The Option is subject to the terms and conditions
of the Plan which are incorporated herein by reference.
ARTICLE II
GRANT OF OPTION
2.1 Grant of Option. In consideration of Participant’s past and/or continued
employment with or service to the Company or a Parent or Subsidiary and for other good and valuable
consideration, effective as of the Grant Date set forth in the Grant Notice (the “Grant Date”), the
Company irrevocably grants to Participant the Option to purchase any part or all of an aggregate of
the number of shares of Stock set forth in the Grant Notice, upon the terms and conditions set
forth in the Plan and this Agreement. Unless designated as a Non-Qualified Stock Option in the
Grant Notice, the Option shall be an Incentive Stock Option to the maximum extent permitted by law.
2.2 Exercise Price. The exercise price of the shares of Stock subject to the Option
shall be as set forth in the Grant Notice, without commission or other charge; provided, however,
that the exercise price per share of Stock subject to the Option shall not be less than 100% of the
Fair Market Value of a share of Stock on the Grant Date. Notwithstanding the foregoing, if this
Option is designated as an Incentive Stock Option and Participant owns (within the meaning of
Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of
stock of the Company or any “subsidiary corporation” of the Company or any “parent corporation” of
the Company (each within the meaning of Section 424 of the Code), the exercise price per share of
Stock subject to the Option shall not be less than 110% of the Fair Market Value of a share of
Stock on the Grant Date.
2.3 Consideration to the Company; No Employment Rights. In consideration of the grant
of the Option by the Company, Participant agrees to render faithful and efficient services to the
Company or any Parent or Subsidiary. Nothing in the Plan or this Agreement shall confer upon
Participant any right to continue in the employ or service of the Company or any Parent or
Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Parents
and Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the
services of Participant at any time for any reason whatsoever, with or without Cause, except to the
extent expressly provided otherwise in a written agreement between the Company, a Parent or a
Subsidiary and Participant.
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ARTICLE III
PERIOD OF EXERCISABILITY
3.1 Commencement of Exercisability.
(a) Subject to Sections 3.3, 5.8 and 5.10, the Option shall become vested and exercisable in
such amounts and at such times as are set forth in the Grant Notice.
(b) No portion of the Option which has not become vested and exercisable at the date of
Participant’s Termination of Employment, Termination of Directorship or Termination of Consultancy
shall thereafter become vested and exercisable, except as may be otherwise provided by the
Administrator or as set forth in a written agreement between the Company and Participant.
3.2 Duration of Exercisability. The installments provided for in the vesting schedule
set forth in the Grant Notice are cumulative. Each such installment which becomes vested and
exercisable pursuant to the vesting schedule set forth in the Grant Notice shall remain vested and
exercisable until it becomes unexercisable under Section 3.3.
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 years from the Grant Date;
(b) If this Option is designated as an Incentive Stock Option and Participant owned (within
the meaning of Section 424(d) of the Code), at the time the Option was granted, more than 10% of
the total combined voting power of all classes of stock of the Company or any “subsidiary
corporation” of the Company or any “parent corporation” of the Company (each within the meaning of
Section 424 of the Code), the expiration of five years from the Grant Date;
(c) The expiration of three months following the date of Participant’s Termination of
Employment, Termination of Directorship or Termination of Consultancy, unless such termination
occurs by reason of Participant’s death or Disability or Participant’s discharge for Cause;
(d) The expiration of one year following the date of Participant’s Termination of Employment,
Termination of Directorship or Termination of Consultancy by reason of Participant’s death or
Disability; or
(e) The date of Participant’s Termination of Employment, Termination of Directorship or
Termination of Consultancy by the Company or any Parent or Subsidiary by reason of Participant’s
discharge for Cause.
Participant acknowledges that an Incentive Stock Option exercised more than three months after
Participant’s Termination of Employment, other than by reason of death or Disability, will be taxed
as a Non-Qualified Stock Option.
3.4 Special Tax Consequences. Participant acknowledges that, to the extent that the
aggregate Fair Market Value (determined as of the time the Option is granted) of all shares of
Stock with respect to which Incentive Stock Options, including the Option, are exercisable for the
first time by Participant in any calendar year exceeds $100,000, the Option and such other options
shall be Non-Qualified Stock Options to the extent necessary to comply with the limitations imposed
by Section 422(d)
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of the Code. Participant further acknowledges that the rule set forth in the preceding
sentence shall be applied by taking the Option and other “incentive stock options” into account in
the order in which they were granted, as determined under Section 422(d) of the Code and the
Treasury Regulations thereunder.
ARTICLE IV
EXERCISE OF OPTION
4.1 Person Eligible to Exercise. Except as provided in Sections 5.2(b) and 5.2(c),
during the lifetime of Participant, only Participant may exercise the Option or any portion
thereof. After the death of Participant, any exercisable portion of the Option may, prior to the
time when the Option becomes unexercisable under Section 3.3, be exercised by Participant’s
personal representative or by any person empowered to do so under the deceased Participant’s will
or under the then applicable laws of descent and distribution.
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.
4.3 Manner of Exercise. The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of
the following prior to the time when the Option or such portion thereof becomes unexercisable under
Section 3.3:
(a) An Exercise Notice in writing signed by Participant or any other person then entitled to
exercise the Option or portion thereof, stating that the Option or portion thereof is thereby
exercised, such notice complying with all applicable rules established by the Administrator. Such
notice shall be substantially in the form attached as Exhibit B to the Grant Notice (or
such other form as is prescribed by the Administrator);
(b) The receipt by the Company of full payment for the shares with respect to which the Option
or portion thereof is exercised, including payment of any applicable withholding tax, which may be
in one or more of the forms of consideration permitted under Section 4.4;
(c) A bona fide written representation and agreement, in such form s is prescribed by the
Administrator, signed by Participant or the other person then entitled to exercise such Option or
portion thereof, stating that the shares of Stock are being acquired for Participant’s 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 any other applicable law, and that Participant or other person then entitled to
exercise such Option or portion thereof 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 Administrator may, in its absolute discretion, take whatever additional actions it
deems appropriate to ensure 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 and any other applicable law. Without limiting the generality of the foregoing, the
Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent
transfer of shares acquired on an 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 the Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and 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
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been registered under the Securities Act, and such registration is then effective in respect
of such shares; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by
any person or persons other than Participant, appropriate proof of the right of such person or
persons to exercise the Option.
4.4 Method of Payment. Payment of the exercise price shall be by any of the
following, or a combination thereof, at the election of the Participant:
(a) cash;
(b) check;
(c) To the extent permitted under applicable laws, delivery of a notice that the Participant
has placed a market sell order with a broker with respect to shares of Stock then issuable upon
exercise of the Option, and that the broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the aggregate exercise price; provided,
that payment of such proceeds is then made to the Company upon settlement of such sale;
(d) With the consent of the Administrator, such payment may be made, in whole or in part,
through the surrender of shares of Stock then issuable upon exercise of the Option having a Fair
Market Value on the date of Option exercise equal to the aggregate exercise price of the Option or
exercised portion thereof;
(e) With the consent of the Administrator, such payment may be made, in whole or in part,
through the delivery of shares of Stock which have been owned by Participant for at least six (6)
months, duly endorsed for transfer to the Company with a Fair Market Value on the date of Option
exercise equal to the aggregate exercise price of the Option or exercised portion thereof; or
(f) With the consent of the Administrator, any combination of the consideration provided in
the foregoing paragraphs (a), (b), (c), (d) and (e).
4.5 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 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 Stock is then
listed;
(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 Administrator shall, in its absolute discretion, deem
necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its absolute discretion, determine to be necessary or
advisable;
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(d) The receipt by the Company of full payment for such shares, including payment of any
applicable withholding tax, which may be in one or more of the forms of consideration permitted
under Section 4.4; and
(e) The lapse of such reasonable period of time following the exercise of the Option as the
Administrator may from time to time establish for reasons of administrative convenience.
4.6 Rights as Stockholder. The holder of the Option shall not be, nor have any of the
rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon the
exercise of any part of the Option unless and until such shares shall have been issued by the
Company to such holder (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company). No adjustment will be made for a dividend or other
right for which the record date is prior to the date the shares are issued, except as provided in
Section 12.3 of the Plan.
ARTICLE V
OTHER PROVISIONS
5.1 Administration. The Administrator 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 Administrator in good faith shall be
final and binding upon Participant, the Company and all other interested persons. No member of the
Administrator shall be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan, this Agreement 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
Administrator under the Plan and this Agreement.
5.2 Option Not Transferable.
(a) Subject to Section 5.2(b), the Option may not be sold, pledged, assigned or transferred in
any manner other than by will or the laws of descent and distribution, unless and until 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 shall be liable for the debts, contracts or
engagements of Participant or his or her 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.
(b) Notwithstanding any other provision in this Agreement, with the consent of the
Administrator and to the extent the Option is not intended to qualify as an Incentive Stock Option,
the Option may be transferred to one or more Permitted Transferees, subject to the terms and
conditions set forth in Section 12.1(b) of the Plan.
(c) Unless transferred to a Permitted Transferee in accordance with Section 5.2(b), during the
lifetime of Participant, only Participant may exercise the Option or any portion thereof. Subject
to such conditions and procedures as the Administrator may require, a Permitted Transferee may
exercise the Option or any portion thereof during Participant’s lifetime. After the death of
Participant, any exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by Participant’s personal representative or by any
person empowered to do so under the deceased Participant’s will or under the then applicable laws
of descent and distribution.
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5.3 Restrictive Legends and Stop-Transfer Orders.
(a) The share certificate or certificates evidencing the shares of Stock purchased hereunder
shall be endorsed with any legends that may be required by state or federal securities laws.
(b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books any shares of Stock that
have been sold or otherwise transferred in violation of any of the provisions of this Agreement, or
(ii) to treat as owner of such shares of Stock or to accord the right to vote or pay dividends to
any purchaser or other transferee to whom such shares shall have been so transferred.
5.4 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 Stock as will be sufficient to satisfy
the requirements of this Agreement.
5.5 Notices. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of the Secretary of the Company at the address given
beneath the signature of the Company’s authorized officer on the Grant Notice, and any notice to be
given to Participant shall be addressed to Participant at the address given beneath Participant’s
signature on the Grant Notice. By a notice given pursuant to this Section 5.5, either party may
hereafter designate a different address for notices to be given to that party. Any notice which is
required to be given to Participant shall, if Participant is then deceased, be given to the person
entitled to exercise his or her Option pursuant to Section 4.1 by written notice under this Section
5.5. Any notice shall be deemed duly given when sent via email or when sent by certified mail
(return receipt requested) and deposited (with postage prepaid) in a post office or branch post
office regularly maintained by the United States Postal Service.
5.6 Titles. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
5.7 Stockholder Approval. The Plan will be submitted for approval by the Company’s
stockholders within twelve months after the date the Plan was initially adopted by the Board. The
Option may not be exercised to any extent by anyone prior to the time when the Plan is approved by
the stockholders, and if such approval has not been obtained by the end of said twelve month
period, the Option shall thereupon be cancelled and become null and void.
5.8 Governing Law; Severability. This Agreement shall be administered, interpreted
and enforced under the laws of the State of Delaware, without regard to the conflicts of law
principles thereof. Should any provision of this Agreement be determined by a court of law to be
illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
5.9 Conformity to Securities Laws. Participant 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, and state securities laws and regulations. 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
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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.
5.10 Amendments. This Agreement may not be modified, amended or terminated except by
an instrument in writing, signed by Participant or such other person as may be permitted to
exercise the Option pursuant to Section 4.1 and by a duly authorized representative of the Company.
5.11 Successors and Assigns. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer herein set forth in
Section 5.2, this Agreement shall be binding upon Participant and his or her heirs, executors,
administrators, successors and assigns.
5.13 Notification of Disposition. If this Option is designated as an Incentive Stock
Option, Participant shall give prompt notice to the Company of any disposition or other transfer of
any shares of Stock acquired under this Agreement if such disposition or transfer is made (a)
within two years from the Grant Date with respect to such shares or (b) within one year after the
transfer of such shares to him. Such notice shall specify the date of such disposition or other
transfer and the amount realized, in cash, other property, assumption of indebtedness or other
consideration, by Participant in such disposition or other transfer.
5.14 Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange
Act, the Plan, the Option and this Agreement shall be subject to any additional limitations set
forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any
amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such
exemptive rule. To the extent permitted by applicable law, this Agreement shall be deemed amended
to the extent necessary to conform to such applicable exemptive rule.
5.15 Entire Agreement. The Plan and this Agreement (including all Exhibits hereto)
constitute the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Participant with respect to the subject matter
hereof.
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EXHIBIT B
TO STOCK OPTION GRANT NOTICE
FORM OF EXERCISE NOTICE
Effective as of today, ___, 20 ___, the undersigned
(“Participant”) hereby elects to exercise Participant’s option to purchase the number of shares of
common stock specified below (the “Shares”) of Peerless Systems Corporation, a Delaware corporation
(the “Company”), under and pursuant to the Peerless Systems Corporation 2005 Incentive Award Plan
(the “Plan”) and the Stock Option Grant Notice and Stock Option Agreement dated as of
(the “Option Agreement”). Capitalized terms used herein without definition
shall have the meanings given in the Plan and, if not defined in the Plan, the Option Agreement.
Grant Date: |
||
Number of Shares as to which Option
is Exercised: |
||
Exercise Price per Share: |
$ | |
Total Exercise Price: |
$ | |
Certificate to be issued in name of: |
||
Payment delivered herewith: |
$ (Representing the full exercise price | |
| for the Shares, as well as any applicable withholding | ||
| tax) | ||
| Form of Payment: | ||
| (Please specify) |
Type of Option: o Incentive Stock Option o Non-Qualified Stock Option
Participant acknowledges that Participant has received, read and understood the Plan and the
Option Agreement. Participant agrees to abide by and be bound by their terms and conditions.
Participant understands that Participant may suffer adverse tax consequences as a result of
Participant’s purchase or disposition of the Shares. Participant represents that Participant has
consulted with any tax consultants Participant deems advisable in connection with the purchase or
disposition of the Shares and that Participant is not relying on the Company for any tax advice.
The Plan and Option Agreement are incorporated herein by reference. This Agreement, the Plan and
the Option Agreement constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Participant with respect to the subject
matter hereof.
| ACCEPTED BY: PEERLESS SYSTEMS CORPORATION |
SUBMITTED BY: | |||||||||||
By:
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By: | |||||||||||
| Print Name: | Print Name: | |||||||||||
| Title: | ||||||||||||
| Address: | ||||||||||||
