Exhibit 10.2
[FORM OF OPTION GRANT FOR EMPLOYEES]
XXXX.XXX INC.
Memorandum of Agreement Evidencing Granting of Non-Qualified Stock Option
Stock Option Agreement dated as of December 5, 1999 between Xxxx.xxx Inc.,
a Delaware corporation (the "Company"), and [___________] (the "Grantee").
1) The Company hereby grants to the Grantee, as of the date set forth above,
in consideration of the Grantee's continued employment with the Company or
a direct or indirect subsidiary of the Company, an option (the "Option") to
purchase an aggregate of [__________] shares of the Common Stock of the
Company, US$.001 par value per share, at an exercise price of US$[_______]
per share, subject to the vesting, exercise provisions and other terms and
conditions set forth below.
2) The shares subject to the Option shall vest (a) as to 25% of the shares
subject to the Option, on the first anniversary of the date of grant of the
Option; and (b) as to the remaining 75% of the shares subject to the
Option, in 12 equal quarterly installments beginning one calendar quarter
after the date of such anniversary.
3) If the Grantee ceases for any reason to be an employee of the Company, or
any direct or indirect subsidiary of the Company, any part of the Option
not then vested will be cancelled and will be of no further force or
effect. If the Grantee ceases for any reason, other than death or
Disability (as defined below), to be an employee of the Company, or any
direct or indirect subsidiary of the Company, any part of the Option then
vested and not exercised within ninety (90) days after the date of the
termination of his employment will be cancelled and will be of no further
force or effect, provided that such 90-day period may be extended by the
Company's Board of Directors in its sole discretion.
4) If the Grantee dies while in the employ of the Company, or any direct or
indirect subsidiary of the Company, the Option may be exercised, to the
extent of the number of shares with respect to which the Grantee could have
exercised it on the date of his death, by his estate, personal
representative or beneficiary, at any time within 180 days after the date
of death. If the Grantee ceases to be employed by the Company, or a direct
or indirect subsidiary of the Company, by reason of his Disability, the
Option may be exercised, to the extent of the number of shares with respect
to which he could have exercised it on the date of the termination of his
employment, at any time within one (1) year after such termination. At the
expiration of such 180-day or one year period, whichever is the earlier,
the Option shall terminate and the only rights hereunder shall be those as
to which the Option was properly exercised before such termination.
"Disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, or any
successor statute.
5) If the Company determines in good faith that the Grantee has violated any
obligation of confidentiality, non-competition or non-solicitation of
employees, customers or suppliers owed to the Company, then, in the sole
discretion of the Company's Board of Directors,
-1-
(1) any part of the Option not yet exercised will be cancelled and will be
of no further force or effect, effective upon written notice from the
Company to the Grantee and (2) any shares of the capital stock of the
Company held by the Grantee which were purchased by the Grantee through
exercise of the Option or any part of the Option will be repurchased by the
Company at a price equal to the exercise price paid by the Grantee,
effective upon written notice from the Company to the Grantee accompanied
by the Company's tender of the price for such repurchase, and will cease to
be held by the Grantee. The Company may, in the sole discretion of the
Company's Board of Directors, exercise either, both or neither of the
foregoing remedies, and such remedies shall be in addition to all other
remedies available to the Company for violations of any such obligation.
6) The Option is exercisable, in whole or in part, with respect to any then
vested shares only from and after the first to occur of the following
events: (a) the closing of an underwritten public offering of shares of
Common Stock of the Company; or (b) any liquidation, dissolution or winding
up of the Company or any consolidation or merger of the Company with or
into any other corporation or corporations in which the stockholders of the
Company immediately prior to such transaction own 50% or less of the voting
power of the surviving entity immediately following such transaction, or a
sale, conveyance or disposition of all or substantially all of the assets
of the Company, or the effectuation by the Company of a transaction or
series of related transactions in which more than 50% of the voting power
of the Corporation is disposed of.
7) The Option (or any part or installment thereof) may be exercised by the
Grantee's delivering to the Company a duly executed Notice of Exercise of
Option as described below, together with provision for payment of the full
purchase price in accordance with this Agreement for the shares as to which
the Option is being exercised, and upon compliance with any other
conditions set forth in this Agreement. Such written notice must be signed
by the Grantee, state the number of shares with respect to which the Option
is being exercised and contain any representations required by this
Agreement. Payment of the purchase price for the shares as to which the
Option is being exercised may be made (i) in United States dollars in cash
or by check, or (ii) at the discretion of the Company's Board of Directors,
by any other means, including a promissory note of the Grantee, which the
Board of Directors determines to be acceptable.
8) The Option granted herein is subject to the following additional terms and
provisions:
a) The Option is not transferable by the Grantee otherwise than by will
or laws of descent and distribution to the Grantee's spouse and lineal
descendants, and is exercisable, during the Grantee's lifetime, only
by him or her.
b) The Option may be exercised in whole or in part from time to time,
provided that the Option may not be exercised as to less than one
hundred (100) shares at any one time, unless it is being exercised in
full and the balance of shares subject to the Option is less than one
hundred.
-2-
c) The shares of Common Stock underlying the Option and the exercise
price therefor and the minimum number of shares that may be purchased
at any one time will be appropriately adjusted from time to time for
stock splits, reverse stock splits, stock dividends and
reclassifications of shares.
d) If the Company is to be consolidated with or acquired by another
entity in a merger, or in the event of a sale of all or substantially
all of the Company's assets (an "Acquisition"), the Company may take
such action with respect to the Option as the Company's Board of
Directors may deem to be equitable and in the best interests of the
Company and its stockholders under the circumstances, including,
without limitation, (i) making appropriate provision for the
continuation of the Option by substituting on an equitable basis for
the shares then subject to the Option either the consideration payable
with respect to the outstanding shares of Common Stock in connection
with the Acquisition or securities of any successor or acquiring
entity or (ii) giving the Grantee reasonable advance notice of the
pendency of the Acquisition and canceling the Option effective upon
the Acquisition if it is not exercised prior to the Acquisition.
Nothing contained herein will be deemed to require the Company to
take, or refrain from taking, any one or more of the foregoing
actions.
e) The Grantee will not have any rights as a stockholder with respect to
any shares of Common Stock covered by the Option except after due
exercise of the Option and tender of the full purchase price for the
shares being purchased pursuant to such exercise and registration of
the shares in the Company's share register in the name of the Grantee.
f) Unless the offering and sale of the shares to be issued upon the
exercise of the Option has been registered under the Securities Act
and any applicable State "Blue Sky" laws, the Company will be under no
obligation to issue the shares covered by such exercise unless
i) the person who exercises the Option represents and warrants to
the Company at the time of such exercise that such person is
acquiring such shares for his or her own account for investment
and not with a view to, or for sale in connection with, the
distribution of any such shares and
ii) the Company has received an opinion of its counsel that the
shares may be issued upon such exercise in compliance with the
Securities Act and any applicable State Blue Sky laws without
registration thereunder.
g) Each certificate representing shares of Common Stock issued upon
exercise of the Option (except to the extent that the restrictions
described in any such legend are no longer applicable) will be bear
legends in substantially the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
-3-
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
LOCK-UP RESTRICTION OF UP TO 180 DAYS FOLLOWING THE INITIAL
UNDERWRITTEN PUBLIC OFFERING OF THE COMPANY'S SECURITIES.
h) In connection with the initial underwritten public offering of the
Company's Common Stock, the Grantee will not, without the prior
written consent of the Company, sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of or
transfer his or her economic risk with respect to any shares of Common
Stock for a period of 180 days after the date of the final prospectus
used in connection with such offering. The Grantee will execute and
deliver such documents as the Company may request confirming the
foregoing.
9) At any time when the Grantee wishes to exercise the Option, in whole or in
part, the Grantee will submit to the Company, a duly executed Notice of
Exercise of Option in the form attached hereto as Exhibit A. Copies of such
---------
notice are available from the Secretary or an Assistant Secretary of the
Company.
10) All notices made pursuant to this Agreement shall be in writing and shall
be conclusively deemed to have been duly given (a) when hand delivered to
the other party (b) when received, if sent by an overnight delivery
service, postage prepaid, addressed, if to the Grantee, as set forth below,
and if to the Company, to the Company's principal offices.
-4-
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its
name by its President or a Vice President or its Secretary or an Assistant
Secretary and the Grantee has hereunto set his or her hand as of the date first
above written.
XXXX.XXX INC.
By:______________________________
Name:
Title:
_________________________________
(signature)
[___________________]
(printed name)
_________________________________
(address)
_________________________________
-5-
EXHIBIT A
Xxxx.xxx Inc.
7 Jianguomen Nei Avenue
Bright China Xxxxx Xx Xxxxxxxx
Xxxxx 0 Xxxx 000
Xxxxxxx, Xxxxx 000000
Ladies and Gentlemen:
I hereby elect to exercise the stock option granted to me on ___________
___, 20__, by Xxxx.xxx Inc., a Delaware corporation ("Sohu"), with respect to
______________ shares (the "Shares") of common stock, par value $.001 per share
("Common Stock"), at the option price of $___________ per share for a total
purchase price of $__________.
I understand that the stock option that I am electing to exercise is not
qualified as an "incentive stock option" under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Internal Revenue Code of 1986.
I wish to make payment of the exercise price for the Shares as indicated
below (check one or more boxes):
______ Cash, my check in the amount of $__________ is enclosed
herewith.
______ Already owned Common Stock; _____ such Common Stock
with a total value of $______ enclosed herewith, duly
endorsed for transfer to the Company. I understand that
this method of payment may be rejected by Sohu's Board
of Directors of or a duly authorized Compensation
Committee of the Board of Directors in its sole
discretion.
Signature: _________________________
Print Name: _________________________
Address: _________________________
_________________________
_________________________
Dated:________________
-1-
