EX-10.2 3 dex102.htm STOCK OPTION AGREEMENT-BLUNDIN MICROSTRATEGY INCORPORATED Second Amended and Restated 1999 Stock Option Plan STOCK OPTION AGREEMENT FOR NON-EMPLOYEE DIRECTORS
EXHIBIT 10.2
MICROSTRATEGY INCORPORATED
Second Amended and Restated 1999 Stock Option Plan
FOR NON-EMPLOYEE DIRECTORS
Unless otherwise defined herein, the terms defined in the MicroStrategy Incorporated Second Amended and Restated 1999 Stock Option Plan, as may be amended (the “Plan”), shall have the same defined meanings in this Option Agreement.
| 1. | Grant of Option. |
| Participant: | Xxxxx X. Xxxxxxx | |
| Address: | c/o Vestmark, Inc. | |
| 000 Xxxxxxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxx, XX 00000 |
You have been granted an option to purchase shares of Class A Common Stock of MicroStrategy Incorporated, subject to the terms and conditions of the Plan and this Option Agreement, as follows:
| Grant Number: | 015463 | |
| Date of Grant: | February 8, 2003 | |
| Fair Market Value, Date of Grant (per share): | $20.69 | |
| Exercise Price per Share: | $20.69 | |
| Total Number of Shares subject to Option: | 17,000 | |
| Total Exercise Price: | $351,730.00 | |
| Type of Option: | Non-Qualified Stock Option | |
| Expiration Date: | February 8, 2013 |
Except as otherwise indicated by the context, the term “you”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
| 2. | Vesting Schedule. |
As used herein, the term “vested” shall mean that portion of this option that is exercisable. This option shall vest in accordance with the following schedule: (i) no portion of this option shall be vested prior to the first anniversary of the Date of Grant; (ii) twenty percent (20%) of this option shall be vested on the first anniversary of the Date of Grant; (iii) thereafter, an additional twenty percent (20%) of this option shall be vested on each subsequent anniversary of the Date of Grant (such that this option shall be vested in full on the fifth anniversary of the Date of Grant). The right of exercise shall be cumulative so that if you do not exercise this option to the maximum extent permissible in any period, it shall continue to be exercisable, in whole or in part, with respect to all vested shares until the earlier of the Expiration Date or the termination of this option under Section 3 below or under the Plan.
| 3. | Exercise of Option. |
(a) Form of Exercise. To exercise this option, you must sign an Exercise Notice in the form attached hereto as Exhibit A and deliver the Exercise Notice to the Company at its principal office, accompanied by a copy of this Option Agreement and payment in full for the shares in the manner provided in the Plan. You may purchase less than the number of shares covered under this Option Agreement, but may not partially exercise this option for any fractional share or for fewer than ten whole shares. This option shall be deemed to be exercised when the Company receives your fully-executed Exercise Notice, a copy of this Stock Option Agreement, and payment in full for the shares in the manner provided in the Plan. Notwithstanding the foregoing, if authorized by the Company you may exercise this option under a Company approved broker-assisted exercise program. In such case you shall be required to properly complete a notice of exercise provided by the Company under the broker-assisted exercise program, which may be in electronic form, in lieu of the Exercise Notice attached as Exhibit A and to comply with the exercise procedures established by the Company for the broker-assisted exercise program, which procedures may vary from those set forth in this subsection 3(a).
(b) Continuous Relationship with the Company Required. Except as otherwise provided in this Section 3, this option may not be exercised unless you, at the time you exercise this option, have been at all times since the Date of Grant, an employee or member of the Board of Directors of, or consultant or advisor to, the Company (an “Eligible Participant”).
(c) Termination of Relationship with the Company. If you cease to be an Eligible Participant for any reason, then except as provided in paragraphs (d), (e), and (f) below, your right to exercise this option shall terminate two (2) years from the date of such cessation, but in no event after the Expiration Date; provided that you may only exercise this option to the extent that you were entitled to do so on the date of such cessation.
(d) Exercise Period upon Death or Disability. If you die or become disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Expiration Date while you are an Eligible Participant and the Company has not terminated your relationship for “cause” as defined in paragraph (f) below, then you or your estate (as applicable) shall be entitled to exercise this option within two (2) years following the date of your death or disability. At the end of this two-year period, this option shall terminate. Notwithstanding the above, you or your estate may only exercise this option to the extent that you were entitled to do so on the date of your death or disability, and in no event shall this option be exercisable after the Expiration Date.
(e) Compliance with Agreements Required. If you violate the terms of any employment agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, non-disclosure agreement, intellectual property agreement, or any other agreement or contract between you and the Company, your right to exercise this option shall terminate immediately upon such violation.
(f) Discharge for Cause. If you are discharged by the Company for “cause” as defined below prior to the Expiration Date, your right to exercise this option shall terminate immediately on the effective date of such discharge. “Cause” shall mean willful misconduct by you or your willful failure to perform responsibilities to the Company, including your breach of any employment, consulting, advisory, non-disclosure, non-competition, or similar agreement between you and the Company, as determined by
- 2 -
the Company, which determination shall be final and conclusive. You shall be considered to have been discharged for “cause” if the Company determines, within thirty (30) days after your resignation, that discharge for cause was warranted.
| 4. | Withholding. |
No shares will be issued to you upon exercise of this option unless and until you pay to the Company, or make provision satisfactory to the Company for payment of, any federal, state, or local withholding taxes required by law to be withheld with respect to this option.
| 5. | Non-Transferability of Options. |
You shall not sell, pledge, assign or transfer this option in any manner other than by a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder (“QDRO”) or by will or the laws of descent and distribution unless and until this option has been exercised, or the shares underlying this option have been issued, and all restrictions applicable to such shares have lapsed; provided, however, you may transfer this option to a Permitted Transferee (as defined below) to the extent permitted by any applicable law or regulations and subject to the following terms and conditions:
(a) If you transfer this option to a Permitted Transferee, (i) the Permitted Transferee shall not assign or transfer the option other than by a QDRO or by will or the laws of descent and distribution and (ii) the option shall continue to be subject to all the terms and conditions of the option as applicable to you (other than the ability to further transfer the option).
(b) You and the Permitted Transferee shall execute any and all documents reasonably requested by the Company’s Board of Directors, including without limitation documents to (i) confirm the status of the transferee as a Permitted Transferee, (ii) satisfy any requirements for an exemption for the transfer under applicable federal and state securities laws and (iii) evidence the transfer.
(c) Shares of Class A Common Stock acquired by a Permitted Transferee through exercise of this option may not be transferred, nor will any assignee or transferee thereof be recognized as an owner of such shares of Class A Common Stock for any purpose, unless a registration statement under the Securities Act of 1933, as amended, and any applicable state securities act with respect to such shares shall then be in effect or unless the availability of an exemption from registration with respect to any proposed transfer or disposition of such shares shall be established to the satisfaction of counsel for the Company.
As used in this Section 5, “Permitted Transferee” shall mean (i) one or more of the following members of your family: spouse, former spouse, child (whether natural or adopted), stepchild, or any other lineal descendant of yours; (ii) a trust, partnership or other entity established and existing for the sole benefit of, or under the sole control of, you and/or one or more of the above-referenced members of your family; or (iii) any other transferee specifically approved by the Company’s Board of Directors after taking into account any state or federal tax or securities laws applicable to transferable options.
No interest or right in this option shall be liable for the debts, contracts or engagements of the holder thereof or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition of an interest or right in this
- 3 -
option shall be null and void and of no effect, except to the extent that such disposition is permitted by the preceding provisions of this Section 5. Except as specifically provided in Section 3(d) or in this Section 5, this option shall be exercised only by you.
| 6. | Provisions of the Plan. |
| This | option is subject to the provisions of the Plan. In the event of a conflict between the provisions of the Plan and this Option Agreement, the Plan shall govern. |
| 7. | Data Privacy. |
In order to administer the Plan, the Company may process personal data about you. Such data includes but is not limited to the information provided in this Option Agreement and any changes thereto, other appropriate personal and financial data about you such as home address and business addresses and other contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan. By accepting this option, you give explicit consent to the Company to process any such personal data. You also give explicit consent to the Company to transfer any such personal data outside or within the country in which you work or are employed, including, with respect to non-U.S. resident Participant, to the United States, to transferees who shall include the Company, a broker retained by you or the Company for the purpose of assisting with an exercise of options and other persons who are designated by the Company to administer or assist with the implementation, administration or management of the Plan. You may object to the collection, use, processing or transfer of such data by notifying the General Counsel of the Company in writing. You understand that such objection may impair your ability to participate in the Plan.
| 8. | Entire Agreement; Governing Law. |
The Plan, this Option Agreement, and the attached Exercise Notice constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and you with respect to the subject matter hereof. The entire agreement shall be governed by Virginia law except for that body of law pertaining to conflict of laws.
IN WITNESS HEREOF, the Company has caused this option to be executed by its duly authorized officer. This option shall take effect as a sealed instrument.
| MICROSTRATEGY INCORPORATED | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx | ||
| Title: | Chairman & CEO |
- 4 -
PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing Option Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receiving a copy of the Plan. The undersigned has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel before executing this Option Agreement and fully understands all provisions of the Plan and this Option Agreement. The undersigned hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Company upon any questions relating to the Plan and Option Agreement.
| PARTICIPANT: |
| /s/ Xxxxx Xxxxxxx |
| Signature |
| Xxxxx Xxxxxxx |
| Print Name |
CONSENT OF SPOUSE
The undersigned spouse of the Participant has read and hereby approves the terms and conditions of the Plan and this Option Agreement. In consideration of the Company’s granting his or her spouse the right to purchase shares as set forth in the Plan and this Option Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Option Agreement and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned’s spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Option Agreement.
| SPOUSE OF PARTICIPANT: |
| /s/ Xxxxx Xxxxxxx |
| Signature |
| Xxxxx Xxxxxxx |
| Print Name |
- 5 -
EXHIBIT A TO THE STOCK OPTION AGREEMENT
MICROSTRATEGY INCORPORATED
Second Amended and Restated 1999 Stock Option Plan
EXERCISE NOTICE
MicroStrategy Incorporated
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, XX 00000
Attention: Stock Option Administrator
1. Exercise of Option. Effective as of today, , 20 , I, (“Purchaser”), hereby elect to purchase shares (the “Shares”) of the Class A Common Stock of MicroStrategy Incorporated (the “Company”) under and pursuant to the MicroStrategy Incorporated Second Amended and Restated 1999 Stock Option Plan, as may be amended (the “Plan”), and the Stock Option Agreement applicable to the stock option grant referenced below (the “Option Agreement”):
| Grant Number | Date of Grant | Number of Shares Being Exercised | Exercise Price Per Share | Aggregate Exercise Price | ||||||
| $ | $ |
2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase price for the Shares.
3. Representations of Purchaser. Purchaser acknowledges that Purchaser has received, read and understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions.
4. Rights as Stockholder. Subject to the terms and conditions of the Plan, the Option Agreement, and this Exercise Notice, Purchaser shall have all of the rights of a stockholder of the Company with respect to the Shares from and after the date the stock certificate evidencing such Shares is issued, as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company.
5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse tax consequences as a result of Purchaser’s purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in connection with the purchase or disposition of the Shares and that Purchaser is not relying on the Company for any tax advice.
6. Interpretation. Any dispute regarding the interpretation of the Plan, the Option Agreement, or this Exercise Notice shall be submitted by Purchaser or by the Company forthwith to the
Company’s Board of Directors or the committee thereof that administers the Plan, which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board or committee shall be final and binding on the Company and on Purchaser.
7. Entire Agreement; Governing Law. The Plan, the Option Agreement, and this Exercise Notice constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Purchaser with respect to the subject matter hereof. The entire agreement shall be governed by Virginia law except for that body of law pertaining to conflict of laws.
| Submitted by: | Accepted by: | |||
| PURCHASER: | MicroStrategy Incorporated | |||
|
| By: |
| ||
| Signature | Xxxxxxx X. Xxxxxx | |||
|
| Title: | Chairman & CEO | ||
| Print Name | ||||
|
| Address: | |||
| Tax I.D. Number | ||||
| 0000 Xxxxxxxxxxxxx Xxxxx | ||||
|
| XxXxxx, XX 00000 | |||
| Address | ||||
|
| ||||
| City, State, Zip Country | ||||
| Brokerage Account Information (voluntary)* |
|
| * This section will also need to be completed if you would like your shares to be wired directly to your brokerage account, which generally takes a few business days. If you do not supply brokerage account information, your stock certificate will be mailed to you. Please note that it can take several weeks before you receive shares by mail. | |
| Broker Name | ||
|
| ||
| Broker DTC Number | ||
|
| ||
| Account Number |
- 2 -
MICROSTRATEGY INCORPORATED
Second Amended and Restated 1999 Stock Option Plan
Amendment to Stock Option Agreement for Non-Employee Director
This Amendment (“Amendment”) to the Stock Option Agreement for Non-Employee Director relating to that certain stock option granted by MicroStrategy Incorporated (the “Company”) to Xxxxx X. Xxxxxxx (the “Participant”) on February 8, 2003 (the “Option Agreement”), is made by the Company as of October 25, 2004 pursuant to Section 7(h) of the MicroStrategy Incorporated Second Amended and Restated 1999 Stock Option Plan, as may be amended (the “Plan”). Unless otherwise defined herein, capitalized terms used in this Amendment shall have the meanings given them in the Plan. The Option Agreement is hereby amended as follows:
1. Section 2 of the Option Agreement shall be deleted in its entirety and the following shall be inserted in lieu thereof:
| “2. | Vesting Schedule. |
As used herein, the term “vested” shall mean that portion of this option that is exercisable. This option shall vest in accordance with the following schedule: (i) no portion of this option shall be vested prior to the first anniversary of the Date of Grant; (ii) twenty percent (20%) of this option shall be vested on the first anniversary of the Date of Grant; (iii) an additional twenty percent (20%) of this option shall be vested on October 25, 2004; (iv) an additional twenty percent (20%) of this option shall be vested on the third anniversary of the Date of Grant; and (v) thereafter, an additional twenty percent (20%) of this option shall be vested on each subsequent anniversary of the Date of Grant (such that this option shall be vested in full on the fifth anniversary of the Date of Grant). The right of exercise shall be cumulative so that if you do not exercise this option to the maximum extent permissible in any period, it shall continue to be exercisable, in whole or in part, with respect to all vested shares until the earlier of the Expiration Date or the termination of this option under Section 3 below or under the Plan.”
2. Except as specifically amended hereby, the Option Agreement shall continue in full force and effect in accordance with its terms.
3. This Amendment shall be governed by Virginia law except for that body of law pertaining to conflict of laws.
[Remainder of page intentionally left blank]
IN WITNESS HEREOF, the Company has caused this Amendment to be executed by its duly authorized officer.
| MICROSTRATEGY INCORPORATED | ||
| By: | /s/ Xxxxxxxx X. Xxxxx | |
| Name: | Xxxxxxxx X. Xxxxx | |
| Title: | Vice President, Law & General Counsel |
2
