EXHIBIT (d)(7)
VASTERA, INC.
STOCK OPTION AGREEMENT
RECITALS
A. The Board has adopted the Plan for the purpose of retaining the
services of selected Employees, non-employee members of the Board (or the board
of directors of any Parent or Subsidiary) and consultants and other independent
advisors who provide services to the Corporation (or any Parent or Subsidiary).
B. Optionee is to render valuable services to the Corporation (or a
Parent or Subsidiary), and this Agreement is executed pursuant to, and is
intended to carry out the purposes of, the Plan in connection with the
Corporation's grant of an option to Optionee.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee, as of
the Grant Date, an option to purchase up to the number of Option Shares
specified in the Grant Notice under the terms of the Scheme. The Option Shares
shall be purchasable from time to time during the option term specified in
Paragraph 2 at the Exercise Price.
2. OPTION TERM. This option shall have a maximum term of ten (10) years
measured from the Grant Date and shall accordingly expire at the close of
business on the Expiration Date, unless sooner terminated in accordance with
Paragraph 5 or 6.
3. LIMITED TRANSFERABILITY. This option shall be neither transferable
nor assignable by Optionee other than by will or the laws of inheritance
following Optionee's death and may be exercised, during Optionee's lifetime,
only by Optionee.
4. DATES OF EXERCISE. This option shall become exercisable for the
Option Shares in one or more installments as specified in the Grant Notice. As
the option becomes exercisable for such installments, those installments shall
accumulate, and the option shall remain exercisable for the accumulated
installments until the Expiration Date or sooner termination of the option term
under Paragraph 5 or 6.
5. CESSATION OF SERVICE. The option term specified in Paragraph 2 shall
terminate (and this option shall cease to be outstanding) prior to the
Expiration Date should any of the following provisions become applicable:
(a) Should Optionee cease to remain in Service for any reason
(other than death, Permanent Disability or Misconduct) while holding this
option, then Optionee shall have a period of three (3) months (commencing with
the date of such cessation of Service) during which to exercise this option, but
in no event shall this option be exercisable at any time after the Expiration
Date.
(b) Should Optionee die while holding this option, then the
personal representative of Optionee's estate or the person or persons to whom
the option is transferred pursuant to Optionee's will or the laws of inheritance
shall have the right to exercise this option. Any such right to exercise this
option shall lapse, and this option shall cease to be outstanding, upon the
EARLIER of (i) the expiration of the twelve (12)-month period measured from the
date of Optionee's death or (ii) the Expiration Date.
(c) Should Optionee cease Service by reason of Permanent
Disability while holding this option, then Optionee shall have a period of
twelve (12) months (commencing with the date of such cessation of Service)
during which to exercise this option. In no event shall this option be
exercisable at any time after the Expiration Date.
(d) For purposes of this Agreement, Optionee's period of
Service shall not include any period of notice of termination of employment,
whether expressed or implied. Optionee's date of cessation of Service shall mean
the date upon which Optionee ceases active performance of services for the
Corporation following the provision of such notification of termination or
resignation from Service and shall be determined solely by this Agreement and
without reference to any other agreement, written or oral, including Optionee's
contract of employment.
(e) During the limited period of post-Service exercisability,
this option may not be exercised in the aggregate for more than the number of
Option Shares for which the option is exercisable at the time of Optionee's
cessation of Service. Upon the expiration of such limited exercise period or (if
earlier) upon the Expiration Date, this option shall terminate and cease to be
outstanding for any exercisable Option Shares for which the option has not been
exercised. However, this option shall, immediately upon Optionee's cessation of
Service for any reason, terminate and cease to be outstanding with respect to
any Option Shares for which this option is not otherwise at that time
exercisable.
(f) Should Optionee's Service be terminated for Misconduct or
should Optionee otherwise engage in any Misconduct while this option is
outstanding, then this option shall terminate immediately and cease to remain
outstanding.
6. SPECIAL ACCELERATION OF OPTION.
(a) This option, to the extent outstanding at the time of a
Corporate Transaction but not otherwise fully exercisable, shall automatically
accelerate so that this option shall, immediately prior to the effective date of
such Corporate Transaction, become exercisable for all of the Option Shares at
the time subject to this option and may be exercised for any or all of those
Option Shares as fully vested shares of Common Stock. However, this option shall
NOT
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become exercisable on such an accelerated basis, if and to the extent this
option is, in connection with the Corporate Transaction, to be assumed by the
successor corporation (or parent thereof).
(b) Immediately following the Corporate Transaction, this
option shall terminate and cease to be outstanding, except to the extent assumed
by the successor corporation (or parent thereof) in connection with the
Corporate Transaction.
(c) This Agreement shall not in any way affect the right of
the Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
7. ADJUSTMENT IN OPTION SHARES. Should any change be made to the Common
Stock by reason of any stock split, recapitalization or other change affecting
the outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the total number of
securities subject to this option and (ii) the Exercise Price in order to
reflect such change and thereby preclude a dilution or enlargement of benefits
hereunder.
8. STOCKHOLDER RIGHTS. The holder of this option shall not have any
stockholder rights with respect to the Option Shares until such person shall
have exercised the option, paid the Exercise Price and become a holder of record
of the purchased shares.
9. MANNER OF EXERCISING OPTION.
(a) In order to exercise this option with respect to all or
any part of the Option Shares for which this option is at the time exercisable,
Optionee (or any other person or persons exercising the option) must take the
following actions:
(i) Execute and deliver to the Corporation a Notice
of Exercise for the Option Shares for which the option is
exercised.
(ii) Pay the aggregate Exercise Price for the
purchased shares in one or more of the following forms:
(A) cash or check made payable to the
Corporation; or
(B) through a special sale and remittance
procedure pursuant to which Optionee (or any other
person or persons exercising the option) shall
concurrently provide irrevocable instructions (i) to
a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to
the Corporation, out of the sale proceeds available
on the settlement date, sufficient funds to cover the
aggregate Exercise Price payable for the purchased
shares plus all applicable Federal, state and local
income and employment taxes required to be
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withheld by the Corporation by reason of such
exercise and (ii) to the Corporation to deliver the
certificates for the purchased shares directly to
such brokerage firm in order to complete the sale.
Except to the extent the sale and remittance
procedure is utilized in connection with the option
exercise, payment of the Exercise Price must
accompany the Notice of Exercise delivered to the
Corporation in connection with the option exercise.
(iii) Furnish to the Corporation appropriate
documentation that the person or persons exercising the option
(if other than Optionee) have the right to exercise this
option.
(b) In accepting this Stock Option grant, Optionee
acknowledges and agrees that he or she shall be liable for the United Kingdom
secondary national insurance contributions required under the Social Security
Contributions and Benefits Xxx 0000 in respect of any gains made in relation to
this Option and that the liability for such secondary contributions shall be
transferred to Optionee to the fullest extent permitted by law.
Further, Optionee shall, prior to any exercise of this Stock Option,
either:
(i) authorize the UK Company or any Subsidiary
Corporation to withhold such secondary contributions from his
or her net pay in the next pay period. The UK Company will
then remit such monies to the Inland Revenue; or
(ii) make a payment equal to such secondary
contributions by cash or check to the UK Company or a
Corporation-designated brokerage firm who will remit such
monies to the UK Company which will then remit such monies to
the Inland Revenue; or
(iii) authorize a Corporation-designated brokerage
firm to withhold such secondary contributions from the net
proceeds of the sale of the shares under the corresponding
Stock Option. The broker will then forward the secondary
contributions to the UK Company which will then remit any such
monies to the Inland Revenue; or
(iv) authorize the UK Company, or other such person
acceptable to the UK Company, to withhold such secondary
contributions from the proceeds received from the assignment,
cancellation or release of the Option; or
(v) make alternative arrangements satisfactory to the
UK Company for the payment of an amount equal to such
secondary contributions to the UK Company who will remit
monies to the Inland Revenue.
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(c) As soon as practical after the Exercise Date (but in any
event within 30 days of that date), the Corporation shall issue to or on behalf
of Optionee (or any other person or persons exercising this option) a
certificate for the purchased Option Shares, with the appropriate legends
affixed thereto.
(d) In no event may this option be exercised for any
fractional shares.
10. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The exercise of this option and the issuance of the Option
Shares upon such exercise shall be subject to compliance by the Corporation and
Optionee with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock may be listed for trading at the time of
such exercise and issuance.
(b) The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be necessary
to the lawful issuance and sale of any Common Stock pursuant to this option
shall relieve the Corporation of any liability with respect to the non-issuance
or sale of the Common Stock as to which such approval shall not have been
obtained. The Corporation, however, shall use its best efforts to obtain all
such approvals.
11. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided in
Paragraphs 3 and 6, the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns, the legal representatives and legatees of
Optionee's estate.
12. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee at
the address indicated below Optionee's signature line on the Grant Notice. All
notices shall be deemed effective upon personal delivery or upon deposit in the
U.S. mail, postage prepaid and properly addressed to the party to be notified.
13. CONSTRUCTION. This Agreement and the option evidenced hereby are
made and granted pursuant to the Plan and are in all respects limited by and
subject to the terms of the Plan. All decisions of the Plan Administrator with
respect to any question or issue arising under the Plan or this Agreement shall
be conclusive and binding on all persons having an interest in this option.
14. GOVERNING LAW. The interpretation, performance and enforcement of
this Agreement shall be governed by the laws of the State of Virginia without
resort to that State's conflict-of-laws rules.
15. EXCESS SHARES. Subject to the application of rule (f) of the
Scheme, if the Option Shares covered by this Agreement exceed, as of the Grant
Date, the number of shares of
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Common Stock which may without stockholder approval be issued under the Plan and
the Scheme, then this option shall be void with respect to those excess shares,
unless stockholder approval of an amendment sufficiently increasing the number
of shares of Common Stock issuable under the Plan is obtained in accordance with
the provisions of the Plan and the Scheme.
16. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
17. AUTHORIZATION TO RELEASE NECESSARY PERSONAL INFORMATION.
(a) Optionee hereby authorizes and directs Optionee's employer
to collect, use and transfer in electronic or other form, any personal
information (the "Data") regarding Optionee's employment, the nature and amount
of Optionee's compensation and the fact and conditions of Optionee's
participation in the Plan (including, but not limited to, Optionee's name, home
address, telephone number, date of birth, social security number (or any other
social or national identification number), salary, nationality, job title,
number of shares of Common Stock held and the details of all options or any
other entitlement to shares of Common Stock awarded, cancelled, exercised,
vested, unvested or outstanding) for the purpose of implementing, administering
and managing Optionee's participation in the Plan. Optionee understands that the
Data may be transferred to the Corporation or any of its Subsidiaries, or to any
third parties assisting in the implementation, administration and management of
the Plan, including any requisite transfer to a broker or other third party
assisting with the exercise of Options under the Plan or with whom shares of
Common Stock acquired upon exercise of this option or cash from the sale of such
shares may be deposited. Optionee acknowledges that recipients of the Data may
be located in different countries, and those countries may have data privacy
laws and protections different from those in the country of Optionee's
residence. Furthermore, Optionee acknowledges and understands that the transfer
of the Data to the Corporation or any of its Subsidiaries, or to any third
parties is necessary for Optionee's participation in the Plan.
(b) Optionee may at any time withdraw the consents herein, by
contacting Optionee's local human resources representative in writing. Optionee
further acknowledges that withdrawal of consent may affect Optionee's ability to
exercise or realize benefits from the option, and Optionee's ability to
participate in the Plan.
18. NO ENTITLEMENT OR CLAIMS FOR COMPENSATION.
(a) The grant of options under the Plan is made at the
discretion of the Plan Administrator, and the Plan may be suspended or
terminated by the Corporation at any time. The grant of an option in one year or
at one time does not in any way entitle Optionee to an option grant in the
future. The Plan is wholly discretionary in nature and is not to be considered
part of Optionee's normal or expected compensation subject to severance,
resignation, redundancy or similar compensation. The value of the option is an
extraordinary item of compensation which is outside the scope of Optionee's
employment contract (if any).
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(b) Optionee shall have no rights to compensation or damages
as a result of Optionee's Cessation of Service for any reason whatsoever,
whether or not in breach of contract, insofar as those rights arise or may arise
from Optionee's ceasing to have rights under or be entitled to exercise this
option as a result of such cessation or from the loss or diminution in value of
such rights. If Optionee did acquire any such rights, Optionee is deemed to have
waived them irrevocably by accepting the option
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EXHIBIT I
NOTICE OF EXERCISE
I hereby notify Vastera, Inc. (the "Corporation") that I elect to
purchase ______________ shares of the Corporation's Common Stock (the
"Purchased Shares") at the option exercise price of $_________________ per
share (the "Exercise Price") pursuant to that certain option (the "Option")
granted to me under the Corporation's United Kingdom Stock Option Scheme on
_____________, _______.
Concurrently with the delivery of this Exercise Notice to the
Corporation, I shall hereby pay to the Corporation the Exercise Price for the
Purchased Shares in accordance with the provisions of my agreement with the
Corporation (or other documents) evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a condition
for exercise. Alternatively, I may utilize the special broker-dealer sale and
remittance procedure specified in my agreement to effect payment of the Exercise
Price.
--------------------, -------
Date
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Optionee
Address:
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Print name in exact manner it is to
appear on the stock certificate:
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Address to which certificate is to
be sent, if different from address
above:
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National Insurance Number:
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APPENDIX
The following definitions shall be in effect under the
Agreement:
A. AGREEMENT shall mean this Stock Option Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
C. COMMON STOCK shall mean shares of the Corporation's common stock.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. CORPORATE TRANSACTION shall mean either of the following
stockholder-approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately
prior to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation
or dissolution of the Corporation.
F. CORPORATION shall mean Vastera, Inc., a Delaware corporation, and
any successor corporation to all or substantially all of the assets or voting
stock of Vastera, Inc. which shall by appropriate action adopt the Plan.
G. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
H. EXERCISE DATE shall mean the date on which the option shall have
been exercised in accordance with Paragraph 9 of the Agreement.
I. EXERCISE PRICE shall mean the exercise price per Option Share as
specified in the Grant Notice.
J. EXPIRATION DATE shall mean the date on which the option expires as
specified in the Grant Notice.
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K. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be deemed equal to
the closing selling price per share of Common Stock on the date in
question, as the price is reported by the National Association of
Securities Dealers on the Nasdaq National Market and published in THE
WALL STREET JOURNAL. If there is no closing selling price for the
Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists, or
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be deemed equal to the
closing selling price per share of Common Stock on the date in question
on the Stock Exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially quoted
in the composite tape of transactions on such exchange and published in
THE WALL STREET JOURNAL. If there is no closing selling price for the
Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists.
X. XXXXX DATE shall mean the date of grant of the option as specified
in the Grant Notice.
X. XXXXX NOTICE shall mean the Notice of Grant of Stock Option
accompanying the Agreement, pursuant to which Optionee has been informed of the
basic terms of the option evidenced hereby.
N. INCENTIVE OPTION shall mean an option which satisfies the
requirements of Code Section 422.
O. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by Optionee, any unauthorized use or disclosure by
Optionee of confidential information or trade secrets of the Corporation (or any
Parent or Subsidiary), or any other intentional misconduct by Optionee adversely
affecting the business or affairs of the Corporation (or any Parent or
Subsidiary) in a material manner. The foregoing definition shall not in any way
preclude or restrict the right of the Corporation (or any Parent or Subsidiary)
to discharge or dismiss any Optionee, Participant or other person in the Service
of the Corporation (or any Parent or Subsidiary) for any other acts or
omissions, but such other acts or omissions shall not be deemed, for purposes of
the Plan or this Agreement, to constitute grounds for termination for
Misconduct.
P. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
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Q. NOTICE OF EXERCISE shall mean the notice of exercise in the form
attached hereto as Exhibit I.
R. OPTION SHARES shall mean the number of shares of Common Stock
subject to the option as specified in the Grant Notice.
S. OPTIONEE shall mean the person to whom the option is granted as
specified in the Grant Notice.
T. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
U. PERMANENT DISABILITY shall mean the inability of Optionee to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which is expected to result in death or has lasted
or can be expected to last for a continuous period of twelve (12) months or
more.
V. PLAN shall mean the Corporation's 2000 Stock Incentive Plan.
W. PLAN ADMINISTRATOR shall mean either the Board or a committee of the
Board acting in its capacity as administrator of the Plan.
X. SCHEME shall mean the Vastera, Inc. United Kingdom Stock Option
Scheme.
Y. SERVICE shall mean the Optionee's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor.
Z. STOCK EXCHANGE shall mean the American Stock Exchange or the New
York Stock Exchange.
AA. SUBSIDIARY shall have the meaning set out in section 736 of the
Companies Xxx 0000.
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