EXHIBIT 10.5
OPTION AGREEMENT
This Stock Option Agreement (this "Option Agreement") is entered into as of
July 28, 2005 between INTERLAND, INC., a Minnesota corporation (the "Company" or
"Interland") and XXXXX XXXXXXXXX ("Executive").
Interland, Executive and the Company are parties to an employment agreement
dated of even date herewith (the "Employment Agreement").
In accordance with paragraph 4(c) of the Employment Agreement, in
connection with Executive's entering into employment with the Company, Executive
is to receive a stock option grant with respect to TWO HUNDRED THOUSAND
(200,000) shares of the common stock, no par value per share, of Interland (the
"Common Stock").
Therefore, the parties agree as follows:
1. Grant of Non-Qualified Stock Option. Interland hereby grants to
Executive the right and option to purchase from Interland, on the terms and
subject to the conditions set forth in this Option Agreement, 200,000 shares of
Common Stock (such shares, the "Option Shares"; such option, the "Option"). The
date of grant of the Option (the "Grant Date") is July 28, 2005. THE OPTION IS
NOT TO CONSTITUTE AN INCENTIVE STOCK OPTION WITHIN THE MEANING OF SECTION 422 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
2. Exercise Price of the Option. The exercise price for the Option Shares
is $2.29 per share, the closing price of the Common Stock on the NASDAQ National
Market on the Grant Date as reported by Nasdaq National Market System (the
"Exercise Price").
3. Vesting of the Option. Subject to the earlier expiration or termination
of this Option in accordance with its terms, the Option Shares granted under
this Option Agreement will be exercisable as follows:
(a) Time-Vested Option Shares. Subject to subparagraph 3(c), the Option
Shares will vest and become exercisable at the rate of 5,555 shares per month,
commencing August 28, 2005. On the three-year anniversary of the Grant Date, all
unvested shares shall vest and become exercisable
(b) Discretionary Acceleration of Exercisability. The Compensation
Committee of the Board of Directors of Interland (the "Compensation Committee")
may, in its sole discretion except as provided in subparagraph 3(c), accelerate
the exercisability of all or a portion of Option Shares without regard to
whether the requirements for exercisability thereof in this Section 3 have been
met.
(c) Mandatory Acceleration of Exercisability. Upon termination of
Executive's employment pursuant to Section 5.3 of the Employment Agreement, all
shares subject to the Option will vest and automatically become exercisable.
4. Method of Exercise of Option.
(a) To the extent then exercisable, Executive may exercise the Option in
whole or in part; except that no single exercise of the Option is to be for less
than 100 Option Shares, unless at the time of the exercise, the maximum number
of Option Shares available for purchase under the Option is less than 100 Option
Shares. In no event is the Option to be exercised for a fractional share of
Common Stock.
(b) To exercise the Option, Executive shall give written notice to
Interland stating the number of shares for which the Option is being exercised
and the intended manner of payment. The date of this notice shall be the
exercise date. The notice must be accompanied by payment in full of the
aggregate Exercise Price, either by cash, check, note or any other instrument
acceptable to the Compensation Committee. Payment in full or in part may also be
made in the form of shares of Common Stock already owned by Executive based, in
each case, on the Market Price of the shares of Common Stock on the date the
Option is exercised; except that in no event is payment in full or in part for
the exercise of an Option to be made with any Option Shares that, as of the date
of exercise of the Option, have been owned by Executive less than six months. If
the payment is in the form of shares of Common Stock, then the certificate or
certificates representing the those shares must be duly executed in blank by
Executive or must be accompanied by a stock power duly executed in blank
suitable for purposes of transferring those shares to Interland. Fractional
shares of Common Stock will not be accepted in payment of the purchase price of
Option Shares. Interland shall not issue Option Shares until full payment for
them has been made.
(c) As soon as practicable upon Interland's receipt of Executive's notice
of exercise and payment, Interland shall direct the due issuance of the shares
so purchased.
(d) As a further condition precedent to the exercise of this Option in
whole or in part, Executive shall comply with all regulations and the
requirements of any regulatory authority having control of, or supervision over,
the issuance of the shares of Common Stock and accordingly shall execute any
documents that the Board of Directors of Interland (the "Interland Board"), in
its sole discretion, deems necessary or advisable to effect such compliance.
(e) In the case of Executive's death, the Option, to the extent
exercisable, may be exercised by the executor or administrator of Executive's
estate or by any person or persons who have acquired the Option directly from
Executive by bequest or inheritance.
5. Non-Transferability of Options. Executive shall not assign or transfer
the Option, other than by will or the laws of descent and distribution. During
Executive's lifetime, only Executive (or, in the event of legal incapacity or
incompetency, Executive's guardian or legal representative) may exercise the
Option. Notwithstanding the foregoing, however, Executive, with the approval of
the Compensation Committee, may transfer the Option for no consideration to or
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for the benefit of Executive's Immediate Family (including, without limitation,
to a trust for the benefit of Executive's Immediate Family or to a partnership
or limited liability company for one or more members of Executive's Immediate
Family, subject to such limits as the Compensation Committee may establish, and
the transferee(s) shall remain subject to all the terms and conditions
applicable to the Option prior to transfer. The term "Immediate Family" means
Executive's spouse, parents, children, stepchildren, adoptive relationships,
sisters, brothers and grandchildren (and, for this purpose, shall also include
Executive).
6. Termination of Option.
(a) Unless vested pursuant to Section 5 (d) above, the portion of the
Option that is not exercisable pursuant to paragraph 3 as of the date of
termination of Executive's employment by the Company will terminate
automatically as of that date.
(b) This Option Agreement and any portion of the Option not either
terminated pursuant to subparagraph 6(a) or already exercised will terminate
automatically and without further notice at the close of business on the
earliest of the following dates: (i) immediately upon termination of Executive's
employment if such termination is pursuant to Section 5.1 of the Employment
Agreement; (ii) on the first anniversary of termination of Executive's
employment, if such termination is pursuant to Sections 5.2 or 5.4 of the
Employment Agreement; (iii) one (1) year following the termination of
Executive's employment if termination is pursuant to Section 5.3 of the
Employment Agreement; or (iv) in any event, the eighth (8th) anniversary of the
Grant Date.
(c) In no event may the Option be exercised, in whole or in part, after
termination pursuant to subparagraphs 6(a) and 6(b).
7. Investment Representations. Interland may require Executive, as a
condition of exercising the Option, to give written assurances in substance and
form satisfactory to Interland to the effect that Executive is acquiring the
Option Shares for Executive's own account for investment and not with any
present intention of selling or otherwise distributing them, and to such other
effect as Interland deems necessary or appropriate in order to comply with
applicable federal and state securities laws.
8. Registration of Option and Option Shares. As soon as practicable after
the date hereof, Interland shall file a registration statement on Form S-8 under
the Securities Act of 1934, as amended, to register the resale of the Option
Shares.
9. Compliance with Law. The Option is subject to the requirement that, if
at any time counsel to Interland determines that the listing, registration or
qualification of the Option Shares upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental or
regulatory body, is necessary as a condition of, or in connection with, the
issuance or purchase of the Option Shares, then the Option may not to be
exercised, in whole or in part, unless the listing, registration, qualification,
consent or approval has been effected or obtained on conditions acceptable to
the Compensation Committee. Nothing in this Option Agreement will be deemed to
require Interland to apply for or to obtain the listing, registration,
qualification, consent or approval.
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10. Recapitalization. If the outstanding shares of Common Stock are changed
into or exchanged for a different number or kind of shares or other securities
of Interland by reason of any recapitalization, reclassification, stock split,
stock dividend, combination, subdivision or similar transaction, then, subject
to any required action by Interland's shareholders, the number and kind of
Option Shares and the Exercise Price for the Option Shares are to be
proportionately adjusted; except that no fractional Option Shares are to be
issued or made subject to the Option in making the foregoing adjustments. All
adjustments made by the Compensation Committee under this paragraph 10 will be
final, conclusive and binding upon Executive.
11. Reorganization. If, while all or any portion of the Option remains
exercisable, Interland proposes to merge or consolidate with another
corporation, whether or not Interland is to be the surviving corporation, or if
Interland proposes to liquidate or sell or otherwise dispose of substantially
all of its assets or substantially all of the outstanding shares of Common Stock
are to be sold, then the Compensation Committee may, in its sole discretion,
either (i) make appropriate provision for the protection of the Option by the
substitution on an equitable basis of (A) appropriate stock of the surviving
corporation or its parent in the merger or consolidation, or other reorganized
corporation that will be issuable in respect to the Option Shares then
exercisable, or (B) any alternative consideration as the Compensation Committee,
in good faith, may determine to be equitable in the circumstances; and, in
either case, require in connection therewith the surrender of the Option so
replaced; or (ii) upon written notice to Executive, provide that the unexercised
(but exercisable) portion of the Option must be exercised within a specified
number of days of the date of such notice or it will be terminated. In any such
case, the Compensation Committee may, in its discretion, accelerate the date on
which the Option, in whole or in part, becomes exercisable.
12. Rights as Shareholder. Neither Executive nor any executor,
administrator, distributee or legatee of Executive's estate will have any of the
rights or privileges of, a shareholder of Interland in respect of any of the
Option Shares unless and until those Option Shares have been fully paid and
certificates representing those Option Shares have been endorsed, transferred
and delivered, and the name of Executive (or of Executive's personal
representative, administrator, distributee or legatee of Executive's estate) has
been entered as the shareholder of record on Interland's books.
13. Withholding of Taxes. Interland's obligation to deliver Options Shares
upon exercise of the Option is subject to Executive's satisfaction of any
applicable federal, state and local income and employment tax and withholding
requirements in a manner and form satisfactory to Interland.
14. No Special Employment Rights. No provision in this Option Agreement
will be deemed to grant to Executive any right with respect to Executive's
continued employment with, or other engagement by, the Company or any
subsidiary, parent or affiliate or interfere in any way with the ability of the
Company or any subsidiary, parent or affiliate at any time to terminate
Executive's employment or other engagement or to increase or decrease
Executive's compensation from the rate in existence at the Grant Date.
15. Other Employee Benefits. The amount of any compensation deemed to be
received by Executive as a result of the exercise of the Option or the sale of
Option Shares received upon the exercise will not constitute "earnings" with
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respect to which any other benefits of Executive are determined, including,
without limitation, benefits under any pension, profit sharing, life insurance
or salary continuation plan.
16. Interpretation of this Option Agreement. All decisions and
interpretations made by the Interland Board or the Compensation Committee with
regard to any question arising under this Option Agreement will be binding and
conclusive on Interland and Executive and any other person entitled to exercise
the Option as provided for in this Option Agreement.
17. Choice of Law. This Option Agreement is to be governed by the internal
law, and not the laws of conflicts, of the State of Georgia.
18. Successors and Assigns. Subject to paragraph 5, this Option Agreement
is to bind and inure to the benefit of and be enforceable by Executive,
Interland and their respective heirs, executors, personal representatives,
successors and assigns.
19. Notices. Any notice provided for in this Option Agreement must be in
writing and is to be either personally delivered, sent by reputable overnight
carrier or mailed by first class mail, return receipt requested, to the
recipient at the address indicated as follows:
Notices to Executive:
Xxxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Notices to Interland:
Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
or any other address or to the attention of any other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Option Agreement will be deemed to have been given when so
delivered, sent or mailed.
20. Severability. Whenever possible, each provision of this Option
Agreement is to be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Option Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any particular jurisdiction, that invalidity, illegality or
unenforceability is not to affect any other provision or any other jurisdiction,
and this Option Agreement shall be reformed, construed and enforced in the
particular jurisdiction as if the invalid, illegal or unenforceable provision
had never been contained herein.
21. Complete Agreement. This Option Agreement embodies the complete
agreement and understanding between the parties with respect to the subject
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matter hereof and effective as of its date supersedes and preempts any prior
understandings, agreements or representations by or between the parties, written
or oral, that may have related to the subject matter hereof in any way.
22. Amendment and Waiver. Subject to the next sentence, the provisions of
this Option Agreement may be amended or waived only with the prior written
consent of Interland and Executive, and no course of conduct or failure or delay
in enforcing the provisions of this Option Agreement is to affect the validity,
binding effect or enforceability of this Option Agreement. Interland
unilaterally may waive any provision of this Option Agreement in writing to the
extent that the waiver does not adversely affect the interests of Executive
under this Option Agreement, but the waiver is not to operate as or be construed
to be a subsequent waiver of the same provision or a waiver of any other
provision of this Option Agreement.
[ SIGNATURE PAGE TO FOLLOW ]
The parties are signing this Option Agreement as of the date stated in the
introductory clause.
INTERLAND, INC.
By:
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Name:
Title:
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Xxxxx Xxxxxxxxx
[ Signature Page to Option Agreement ]
