Exhibit 10.70(g)
NO. __________
INTERLAND, INC.
2001 EQUITY INCENTIVE PLAN
NOTICE OF GRANT
This Notice of Xxxxx (the "AGREEMENT") is made and entered into as of
the date of grant set forth below (the "DATE OF GRANT") by and between
Interland, Inc., a Minnesota corporation ("INTERLAND"), and the participant
named below (the "PARTICIPANT"). Capitalized terms not defined herein shall have
the meaning ascribed to them in Interland, Inc. 2001 Equity Incentive Plan.
PARTICIPANT: _______________________________________________
TOTAL OPTION SHARES: _______________________________________________
EXERCISE PRICE PER SHARE: _______________________________________________
DATE OF GRANT: _______________________________________________
FIRST VESTING DATE: _______________________________________________
EXPIRATION DATE: _______________________________________________
(unless earlier terminated under Section 3 below or
Section 5.6 of the Plan)
TYPE OF STOCK OPTION: NONQUALIFIED STOCK OPTION
IN WITNESS WHEREOF, Interland, Inc. has caused this Agreement to be
executed in duplicate by its duly authorized representative and Participant has
executed this Agreement in duplicate, effective as of the Date of Grant.
INTERLAND, INC. PARTICIPANT
By: ____________________________ ________________________________
(Signature)
________________________________ ________________________________
(Please print name) (Please print name)
________________________________
(Please print title)
TERMS AND CONDITIONS
OF NOTICE OF XXXXX
1. GRANT OF OPTION. Interland hereby grants to Participant an option
(this "OPTION") to purchase the total number of shares of Common Stock, .01 par
value, of Interland set forth above as Total Option Shares (the "SHARES") at the
Exercise Price Per Share set forth above (the "EXERCISE PRICE"), subject to all
of the terms and conditions of this Agreement and the Plan.
2. EXERCISE PERIOD.
2.1 Exercise Period of Option. Provided Participant continues
to provide services to Interland or a Subsidiary, the Option will become vested
and exercisable as to portions of the Shares as follows: (i) this Option shall
not vest nor be exercisable with respect to any of the Shares until the First
Vesting Date set forth on the first page of this Agreement (the "FIRST VESTING
DATE"); (ii) on the First Vesting Date the Option will become vested and
exercisable as to twenty-five percent (25%) of the Shares; and (iii) thereafter
at the end of each full succeeding month the Option will become vested and
exercisable as to 2.08333% of the Shares until the Shares are vested with
respect to one hundred percent (100%) of the Shares. If application of the
vesting percentage causes a fractional share, such share shall be rounded down
to the nearest whole share for each month except for the last month in such
vesting period, at the end of which last month this Option shall become
exercisable for the full remainder of the Shares.
2.2 Vesting of Options. Shares that are vested pursuant to the
schedule set forth in Section 2.1 are "VESTED SHARES." Shares that are not
vested pursuant to the schedule set forth in Section 2.1 are "UNVESTED SHARES."
2.3 Expiration. The Option shall expire on the Expiration Date
set forth above or earlier as provided in Section 3 below or pursuant to Section
5.6 of the Plan.
3. TERMINATION.
3.1 Termination for Any Reason Except Death, Disability or
Cause. If Participant is Terminated for any reason other than death, Disability
or for Cause, then the Participant may exercise such Participant's Options only
to the extent that such Options are exercisable upon the Termination Date or as
otherwise determined by the Committee. Such Options must be exercised by the
Participant, if at all, as to all or some of the Vested Shares calculated as of
the Termination Date or such other date determined by the Committee, within
thirty (30) days after the Termination Date but in any event, no later than the
expiration date of the Options.
3.2 Termination Because of Death or Disability. If Participant
is Terminated because of Participant's death or Disability (or the Participant
dies within thirty (30) days after a Termination other than for Cause), then
Participant's Options may be exercised only to the extent that such Options are
exercisable by Participant on the Termination Date or as otherwise determined by
the Committee. Such options must be exercised by Participant (or Participant's
legal representative or authorized assignee), if at all, as to all or some of
the Vested Shares calculated as of the Termination Date or such other date
determined by the Committee, within twelve (12) months after the Termination
Date but in any event no later than the expiration date of the Options.
3.3 Termination for Cause. If Participant is terminated for
Cause, then Participant's Options shall expire on such Participant's Termination
Date, or at such later time and on such conditions as are determined by the
Committee.
3.4 No Obligation to Employ. Nothing in the Plan or this
Agreement shall confer on Participant any right to continue in the employ of, or
other relationship with, Interland or a Subsidiary or limit in any way the right
of Interland or a Subsidiary to terminate Participant's employment or other
relationship at any time, with or without Cause.
3.5 Confidentiality. Participant agrees that information
regarding this Option, including, but not limited to, the issuance of the Option
to Participant and the number of Shares subject to the Option, is Interland
confidential information, and is subject to Participant's obligations to
maintain such information in confidence. Participant agrees not to disclose such
information to any third party, except to his or her immediate family members,
accountants, financial advisors and attorneys (each of whom shall be informed of
the confidential nature of the information and agree not to disclose the
information to any third party), or as required by law. Participant agrees that
the Committee may, at its discretion, immediately terminate all or part of this
Option if Participant violates this Section 3.5.
4. MANNER OF EXERCISE.
4.1 Stock Option Exercise Agreement. To exercise this Option,
Participant (or in the case of exercise after Participant's death or incapacity,
Participant's executor, administrator, heir or legatee, as the case may be) must
deliver to Interland an executed stock option exercise agreement in such form as
may be approved by the Committee from time to time (the "EXERCISE AGREEMENT"),
which shall set forth, inter alia, (i) Participant's election to exercise the
Option, (ii) the number of Shares being purchased, (iii) any restrictions
imposed on the Shares and (iv) any representations, warranties and agreements
regarding Participant's investment intent and access to information as may be
required by Interland to comply with applicable securities laws. If someone
other than Participant exercises the Option, then such person must submit
documentation reasonably acceptable to Interland verifying that such person has
the legal right to exercise the Option and such person shall be subject to all
of the restrictions contained herein as if such person were the Participant.
4.2 Limitations on Exercise. The Option may not be exercised
unless such exercise is in compliance with all applicable federal and state
securities laws, as they are in effect on the date of exercise. The Option may
not be exercised as to fewer than one hundred (100) Shares unless it is
exercised as to all Shares as to which the Option is then exercisable.
4.3 Payment. The Exercise Agreement shall be accompanied by
full payment of the Exercise Price for the shares being purchased in cash (by
check), or where permitted by law:
(a) by cancellation of indebtedness of Interland or a
Subsidiary to the Participant;
(b) by surrender of shares of Interland's Common Stock that
(i) either (A) have been owned by Participant for more
than six (6) months and have been paid for within the
meaning of SEC Rule 144 (and, if such shares were
purchased from Interland by use of a promissory note, such
note has been fully paid with respect to such shares); or
(B) were obtained by Participant in the open public
market; and (ii) are clear of all liens, claims,
encumbrances or security interests;
(c) by waiver of compensation due or accrued to Participant
from Interland or a Subsidiary for services rendered;
(d) provided that a public market for Interland's stock
exists: (i) through a "same day sale" commitment from
Participant and a broker-dealer that is a member of the
National Association of Securities Dealers (an "NASD
DEALER") whereby Participant irrevocably elects to
exercise the Option and to sell a portion of the Shares so
purchased sufficient to pay for the total Exercise Price
and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the total Exercise Price
directly to Interland, or (ii) through a "margin"
commitment from Participant and an NASD Dealer whereby
Participant irrevocably elects to exercise the Option and
to pledge the Shares so purchased to the NASD Dealer in a
margin account as security for a loan from the NASD Dealer
in the amount of the total Exercise Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such
Shares to forward the total Exercise Price directly to
Interland; or
(e) any other form of consideration approved by the Committee;
or
(f) by any combination of the foregoing.
4.4 Tax Withholding. Prior to the issuance of the Shares upon
exercise of the Option, Participant must pay or provide for any applicable
federal, state and local withholding obligations of Interland or any Subsidiary.
If the Committee permits, Participant may provide for payment of withholding
taxes upon exercise of the Option by requesting that Interland retain the
minimum number of Shares with a Fair Market Value equal to the minimum amount of
taxes required to be withheld; but in no event will Interland withhold Shares if
such withholding would result in adverse accounting consequences to Interland or
any Subsidiary. In such case, Interland shall issue the net number of Shares to
the Participant by deducting the Shares retained from the Shares issuable upon
exercise.
4.5 Issuance of Shares. Provided that the Exercise Agreement
and payment are in form and substance satisfactory to counsel for Interland,
Interland shall issue the Shares registered in the name of Participant,
Participant's authorized assignee, or Participant's legal representative, and
shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.
5. CORPORATE TRANSACTIONS.
5.1 Assumption or Replacement of Options by Successor. In the
event of (i) a dissolution or liquidation of Interland, (ii) a merger or
consolidation in which Interland is not the surviving corporation (other than a
merger or consolidation with a wholly-owned subsidiary, a reincorporation of
Interland in a different jurisdiction, or other transaction in which there is no
substantial change in the stockholders of Interland or their relative stock
holdings and the Options granted under the Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), or (iii) a merger in which Interland is the surviving corporation
but after which the stockholders of Interland immediately prior to such merger
(other than any stockholder that merges, or which owns or controls another
corporation that merges, with Interland in such merger) cease to own their
shares or other equity interest in Interland (each, a "CORPORATE TRANSACTION"),
any or all outstanding Options may be assumed, converted or replaced by the
successor or acquiring corporation (if any), which assumption, conversion or
replacement will be binding on all Participants. In the alternative, the
successor or acquiring corporation may substitute equivalent Options or provide
substantially similar consideration to Participants as was provided to
shareholders (after taking into account the existing provisions of the Options).
The successor or acquiring corporation may also issue, in place of outstanding
unvested Shares of Interland held by the Participants, substantially similar
shares or other property subject to repurchase restrictions no less favorable to
the Participant.
In the event such successor or acquiring corporation (if any)
refuses to assume or substitute Options, as provided above, pursuant to a
Corporate Transaction described in this Subsection 5.1, then notwithstanding any
other provision in the Plan or Notice of Grant to the contrary, the vesting of
such Options will accelerate and the Options will become exercisable in full
prior to the consummation of such event at such times and on such conditions as
the Committee determines, and if such Options are not exercised prior to the
consummation of the Corporate Transaction, they shall terminate in accordance
with the provisions of the Plan. Notwithstanding anything in the Plan or the
Notice of Xxxxx to the contrary, the Committee may, in its sole discretion,
provide that the vesting of any or all Options granted pursuant to the Plan will
accelerate upon a Corporate Transaction described in this Section 5. If the
Committee exercises such discretion with respect to Options, such Options will
become exercisable in full prior to the consummation of such event at such time
and on such conditions as the Committee determines, and if such Options are not
exercised prior to the consummation of the Corporate Transaction, they shall
terminate at such time as determined by the Committee.
5.2 Other Treatment of Options. Subject to any greater rights
granted to Participants under the foregoing provisions of this Section 5, in the
event of the occurrence of any transaction described in Section 5.1 hereof, any
outstanding Options will be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation or sale of assets.
6. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of the Option
and the issuance and transfer of Shares shall be subject to compliance by
Interland and Participant with
all applicable requirements of federal and state securities laws and with all
applicable requirements of any stock exchange on which Interland's Common Stock
may be listed at the time of such issuance or transfer. Participant understands
that neither Interland nor any Subsidiary is under any obligation to register or
qualify the Shares with the SEC, any state securities commission or any stock
exchange to effect such compliance.
7. NONTRANSFERABILITY OF OPTION. The Option may not be transferred
in any manner other than by will or by the laws of descent and distribution or
as determined by the Committee. The terms of the Option shall be binding upon
the executors, administrators, successors and assigns of Participant. Unless
otherwise restricted by the Committee, the Option shall be exercisable: (i)
during the Participant's lifetime only by (A) the Participant, (B) the
Participant's guardian or legal representative, (C) a Family Member of the
Participant who has acquired the Option by "permitted transfer;" and (ii) after
Participant's death, by the legal representative of the Participant's heirs or
legatees. "Permitted transfer" means, as authorized by this Plan and the
Committee in an Option, any transfer effected by the Participant during the
Participant's lifetime of an interest in such Option but only such transfers
which are by gift or domestic relations order. A permitted transfer does not
include any transfer for value and neither of the following are transfers for
value: (a) a transfer of under a domestic relations order in settlement of
marital property rights or (b) a transfer to an entity in which more than fifty
percent of the voting interests are owned by Family Members or the Participant
in exchange for an interest in that entity.
8. TAX CONSEQUENCES. Set forth below is a brief summary as of the
Effective Date of the Plan of some of the tax consequences of exercise of
the Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE
SHARES.
8.1 Exercise of Nonqualified Stock Option. There may be a
regular federal and state income tax liability upon the exercise of the Option.
Participant will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the Fair Market Value
of the Shares on the date of exercise over the Exercise Price. If Participant is
a current or former employee of Interland or a Subsidiary, Interland may be
required to withhold from Participant's compensation or collect from Participant
and pay to the applicable taxing authorities an amount equal to a percentage of
this compensation income at the time of exercise.
8.2 Disposition of Shares. The following tax consequences may
apply upon disposition of the Shares. If the Shares are held for more than
twelve (12) months after the date of purchase of the Shares pursuant to the
exercise of an Option, any gain realized on disposition of the Shares will be
treated as long term capital gain. If the Shares are disposed of within this
twelve (12) month period, any gain realized on such disposition will be treated
as compensation income. Interland may be required to withhold from the
Participant's compensation or collect from the Participant and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income.
9. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of
the rights of a stockholder with respect to any Shares until the Shares are
issued to Participant.
10. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by Participant or Interland to the Committee for
review. The resolution of such a dispute by the Committee shall be final and
binding on Interland and Participant.
11. ENTIRE AGREEMENT. The Plan is incorporated herein by reference.
This Agreement and the Plan constitute the entire agreement of the parties and
supersede all prior undertakings and agreements with respect to the subject
matter hereof.
12. NOTICES. Any notice required to be given or delivered to
Interland under the terms of this Agreement shall be in writing and addressed to
the Corporate Secretary of Interland at its principal corporate offices. Any
notice required to be given or delivered to Participant shall be in writing and
addressed to Participant at the address indicated above or to such other address
as such party may designate in writing from time to time to Interland. All
notices shall be deemed to have been given or delivered upon: (i) personal
delivery; (ii) three (3) days after deposit in the United States mail by
certified or registered mail (return receipt requested); (iii) one (1) business
day after deposit with any return receipt express courier (prepaid); or (iv) one
(1) business day after transmission by facsimile, rapifax or telecopier.
13. SUCCESSORS AND ASSIGNS. Interland may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of Interland. Subject to the restrictions
on transfer set forth herein, this Agreement shall be binding upon Participant
and Participant's heirs, executors, administrators, legal representatives,
successors and assigns.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota. If any provision of this
Agreement is determined by a court of law to be illegal or unenforceable, then
such provision will be enforced to the maximum extent possible and the other
provisions will remain fully effective and enforceable.
15. ACCEPTANCE. Participant hereby acknowledges receipt of a copy of
the Plan and this Agreement. Participant has read and understands the terms and
provisions thereof, and accepts the Option subject to all the terms and
conditions of the Plan and this Agreement. Participant acknowledges that there
may be adverse tax consequences upon exercise of the Option or disposition of
the Shares and that Participant should consult a tax adviser prior to such
exercise or disposition.
