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EXHIBIT 10.101
XXXXXX.XXX, INC.
2000 EQUITY PARTICIPATION PLAN
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the xxxxxx.xxx, Inc. 2000
Equity Participation Plan (the "Plan") shall have the same defined meanings in
this Amended and Restated Stock Option Agreement. This Amended and Restated
Stock Option Agreement amends and restates in its entirety the Stock Option
Agreement dated April 10, 2001 previously entered into by the parties that
contained certain clerical errors.
I. NOTICE OF STOCK ADDITIONAL OPTION GRANT
Xxxx Xxxxxx
You ("Optionee") have been granted an additional option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Stock Option Agreement. The terms of your grant are set forth below:
Date of Grant: April 11, 2001
Vesting Commencement Date: December 1, 2000
Exercise Price per Share: $0.13 per share
Total Number of Shares Granted: 255,000
Total Exercise Price: $33,150.00
Type of Option: Non-Qualified Stock Option
Term/Expiration Date: April 10, 2008 (Seventh anniversary
of Date of Grant)
Exercise and Vesting Schedule:
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This Option shall vest and become exercisable according to the following
schedule:
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Subject to the following paragraphs, this Option shall vest and become
exercisable with respect to thirty-three and one-third percent (33 1/3%) of the
shares of the Company's Common Stock subject to the Option (the "Shares") on the
one-year anniversary of the Option's Vesting Commencement Date, and thereafter,
with respect to thirty-three and one-third percent (33 1/3%) of the Shares on
each successive twelve-month anniversary following the one-year anniversary of
the Option's Vesting Commencement Date (each, a "Vesting Date"), commencing with
the first such anniversary, such that this Option shall be vested and
exercisable with respect to one hundred percent (100%) of the Shares on the
third anniversary of the Option's Vesting Commencement Date; provided, however,
that Optionee has remained in Continuous Status as an Employee or Consultant as
of each Vesting Date.
Notwithstanding the foregoing, this Option shall vest and become
exercisable with respect to one hundred percent (100%) of the Shares subject to
the Option immediately prior to the earlier of (i) Optionee's termination of
employment with the Company for Good Reason or by the Company for any reason
other than Cause, death or Disability (each such term as defined in that certain
Employment Agreement between the Company and Optionee, dated as of August 22,
2000, as may be amended from time to time), (ii) in addition to the conditions
upon which the Option may automatically accelerate and become exercisable in
accordance with the Plan, upon the consummation of the following: (a) any sale,
merger, consolidation, tender offer or similar acquisition of shares, or other
transaction or series of related transactions (each a "Transaction") as a result
of which at least a majority of the voting power of the Company is not held,
directly or indirectly, by the persons or entities who held the Company's
securities with voting power before such Transaction; (b) a sale or other
disposition of all or substantially all of the Company's assets, whether in one
transaction or a series of related transactions; or (c) individuals who on the
date hereof constitute the Board of Directors and any new Director (other than a
Director designated by a person or entity who has entered into an agreement to
effect a transaction described in clause (a) or (b) above) whose nomination
and/or election to the Board of Directors was approved by a vote of at least a
majority of the Directors then still in office who either were Directors on the
date hereof or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board of
Directors.
Termination Period:
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This Option may be exercised, to the extent vested, for three (3) months
after Optionee ceases to be a Service Provider, or for twelve (12) months
following the death or disability of Optionee as provided in the Plan, but in no
event later than the Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Option. The Company hereby grants to the Optionee an Option
to purchase the number of Shares set forth in the Notice of Stock Option Grant
(the "Notice of Grant"), at the exercise price per share set forth in the Notice
of Grant (the "Exercise Price"). Notwithstanding anything to the contrary
anywhere else in this Stock Option Agreement, this grant of an Option is subject
to the terms, definitions and provisions of the Plan adopted by the Company,
which is incorporated herein by reference. This Option is not intended to, and
does
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not, qualify as an Incentive Stock Option as defined in Section 422 of the Code.
2. Exercise of Option. This Option is exercisable as follows:
(a) Right to Exercise.
(i) This Option shall be exercisable cumulatively according
to the vesting schedule set out in the Notice of Grant. For purposes of this
Stock Option Agreement, Shares subject to this Option shall vest based on
Optionee's Continuous Status as an Employee or Consultant.
(ii) This Option may not be exercised for a fraction of a
Share.
(iii) In the event of Optionee's termination of Continuous
Status as an Employee or Consultant, the exercisability of the Option is
governed by Section 5 below.
(iv) In no event may this Option be exercised after the date
of expiration of the term of this Option as set forth in the Notice of Grant.
(b) Method of Exercise. This Option shall be exercisable by
written Notice (in the form attached as Exhibit A). The Notice must state the
number of Shares for which the Option is being exercised, and such other
representations and agreements with respect to such shares of Common Stock as
may be required by the Company pursuant to the provisions of the Plan or as may
be necessary in order for the Company to comply with Applicable Laws. The Notice
must be signed by the Optionee and shall be delivered in person or by certified
mail to the Secretary of the Company. The Notice must be accompanied by payment
of the Exercise Price, including payment of any applicable withholding tax. This
Option shall be deemed to be exercised upon receipt by the Company of such
written Notice accompanied by the Exercise Price and payment of any applicable
withholding tax.
No Shares shall be issued pursuant to the exercise of an Option
unless such issuance and such exercise comply with Applicable Laws and the
requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
3. Method of Payment. Payment of the Exercise Price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
(c) with the consent of the Administrator, other shares of Common
Stock that (i) in the case of shares acquired upon exercise of an option granted
by the Company either have been owned by the Optionee for more than six months
on the date of surrender or were not acquired, directly or indirectly, from the
Company, and (y) have a Fair Market Value on the date
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of surrender equal to the aggregate exercise price of the shares as to which
said Option shall be exercised;
(d) with the consent of the Administrator in its sole and absolute
discretion, authorization from the Company to retain from the total number of
shares as to which the Option is exercised that number of shares having a Fair
Market Value on the date of exercise equal to the exercise price for the total
number of shares as to which the Option is exercised;
(e) with the consent of the Administrator, delivery of a properly
executed exercise notice together with irrevocable instructions to a broker to
deliver promptly to the Company the amount of sale or loan proceeds required to
pay the exercise price;
(f) with the consent of the Administrator, a combination of any of
the foregoing methods of payment;
(g) with the consent of the Administrator, a combination of any of
the foregoing methods of payment at least equal in value to the stated capital
represented by the Shares to be issued, plus a promissory note for the balance
of the exercise price; or
(h) with the consent of the Administrator, such other
consideration and method of payment for the issuance of Shares to the extent
permitted under Applicable Laws.
4. Restrictions on Exercise. If the issuance of Shares upon such
exercise or if the method of payment for such shares would constitute a
violation of any applicable federal or state securities or other law or
regulation, then the Option may also not be exercised. The Company may require
Optionee to make any representation and warranty to the Company as may be
required by any applicable law or regulation before allowing the Option to be
exercised.
5. Termination of Relationship. If Optionee terminates Continuous
Status as an Employee or Consultant for any reason, Optionee may exercise this
Option during the Termination Period set out in the Notice of Grant, to the
extent the Option was vested at the date of such termination. To the extent that
Optionee was not vested in this Option at the date on which Optionee terminates
Continuous Status as an Employee or Consultant, or if Optionee does not exercise
this Option within the time specified herein, the Option shall terminate.
6. Non-Transferability of Option. This Option may not be transferred in
any manner except by will or by the laws of descent or distribution . It may be
exercised during the lifetime of Optionee only by Optionee. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
7. Term of Option. This Option may be exercised only within the term
set out in the Notice of Grant.
[SIGNATURE PAGE FOLLOWS]
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This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which shall constitute one document.
XXXXXX.XXX, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Chief Executive Officer
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
THE OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT
AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING
GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE
COMPANY'S 2000 EQUITY PARTICIPATION PLAN WHICH IS INCORPORATED HEREIN BY
REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO
CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL IT
INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he
is familiar with the terms and provisions thereof. Optionee hereby accepts this
Option subject to all of the terms and provisions hereof. Optionee has reviewed
the Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option and fully understands all
provisions of the Option. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator upon
any questions arising under the Plan or this Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
Dated: April 11, 2001
/s/ XXXX XXXXXX
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XXXX XXXXXX
Residence Address:
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