Exhibit 10.11
Date: September 5, 1996
NON-QUALIFIED STOCK OPTION GRANTED
by
HIPPO, INC.
(hereinafter called the "Company")
to
Xxxxx X. Xxxxxxx, XX
(hereinafter called the "Holder")
WITNESSETH:
For valuable consideration, the receipt of which is hereby
acknowledged, the Company hereby grants to the Holder the following option:
FIRST: Subject to the terms and conditions hereinafter set forth, the
Holder is hereby given the right and option to purchase from the Company at the
option price of $.05 per share an aggregate of 264,300 shares of Common Stock of
the Company, $.01 par value, at the time and in the manner hereinafter stated.
The Holder shall have the right and option to purchase hereunder any or all of
such shares beginning on the date hereof. Except as otherwise provided herein,
such right and option to purchase shares shall terminate seven years from the
date hereof.
This option shall be exercised by the delivery of written notice to the
Company setting forth the number of shares with respect to which the option is
to be exercised, together with (a) cash, certified check, bank draft or postal
or express money order payable to the order of the Company for an amount equal
to the option price of such shares, or (b) with the consent of the Board of
Directors of the Company (the "Board"), shares of Common Stock of the Company
having a fair market value equal to the option price of such shares, or (c) with
the consent of the Board, a combination of (a) and (b), and specifying the
address to which the certificates for such shares are to be mailed. For the
purpose of the preceding sentence, the fair market value of the shares of Common
Stock so delivered to the Company shall be the fair market value thereof as
determined in good faith by the Board.
SECOND: As a condition precedent to any exercise of this option, the
Holder (or if any other individual or individuals are exercising this option,
such individual or individuals) shall deliver to the Company an investment
letter in form and substance satisfactory to the Company's
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counsel which shall contain, among other matters, a statement in writing that
the option is then being exercised only with a view to investment in, and not
with a view to the disposition of, the shares with respect to which the option
is then being exercised; that the Holder and/or his attorneys, accountants,
and/or advisors have fully investigated the Company and the business and
financial conditions concerning it and have knowledge of the Company's then
current corporate activities and financial condition; and that the Holder
believes that the nature and amount of the shares being purchased by him are
consistent with his investment objectives, abilities and resources. The
condition and restriction imposed by this paragraph and any investment
representation made pursuant to this paragraph shall be inoperative at any time
when there shall be an effective registration statement under the Securities Act
of 1933 covering the stock subject to this option or acquired through the
exercise of this option.
THIRD: As promptly as practicable after receipt of the written notice
and payment described in paragraph FIRST and, if required as a condition to
exercise, the investment letter described in paragraph SECOND, the Company shall
deliver or cause to be delivered to the Holder (or if any other individual or
individuals are exercising this option, to such individual or individuals) at
the address specified pursuant to paragraph FIRST hereof a certificate or
certificates for the number of shares with respect to which the option is then
being exercised, registered in the name or names of the individual or
individuals exercising the option, either alone or jointly with another person
or persons with rights of survivorship, as the individual or individuals
exercising the option shall prescribe in writing to the Company at or prior to
such purchase; provided, however, that such delivery shall be deemed effected
for all purposes when the Company or a stock transfer agent shall have deposited
such certificate or certificates in the United States mail, addressed to the
Holder (or such individual or individuals) at the address so specified; and
provided further that if any law or regulation or order of the Securities and
Exchange Commission or other body having jurisdiction in the premises shall
require the Company or the Holder (or the individual or individuals exercising
this option) to take any action in connection with the shares then being
purchased, the date for the delivery of the certificates for such shares shall
be extended until such action shall be taken and completed, it being understood
that the Company shall have no obligation to take and complete any such action.
The Holder acknowledges that he has been advised to consult his tax
adviser with respect to the tax consequences of the grant and exercise of this
option. If federal, state or local law shall require that the Company withhold
or pay in connection with exercise of this option any taxes or other charges,
then the Company shall be entitled either (a) as an additional condition
precedent to any exercise of this option, to require that the Holder pay to the
Company in cash at the time of exercise an amount equal to the amount of any
such taxes or charges or (b) to deduct such amount from payments of any kind
otherwise due to the Holder.
FOURTH: The existence of this option shall not affect in any way the
right or power of the Company or its stockholders to make or authorize, without
limitation, any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of Common Stock, or any
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issue of bonds, debentures, preferred or prior preference stock or other capital
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of the Common Stock outstanding, without
receiving compensation therefor in money, services or property, then the number,
class, and price per share of stock subject to this option shall be
appropriately adjusted in such a manner as to entitle the Holder to receive upon
exercise of this option, for the same aggregate consideration, the same total
number and class of shares as the Holder would have received as a result of the
event requiring the adjustment had the Holder exercised this option in full
immediately prior to such event.
After a merger of one or more corporations with or into the Company, or
after a consolidation of the Company and one or more corporations in which the
stockholders of the Company immediately prior to such merger or consolidation
own after such merger or consolidation shares representing at least fifty
percent (50%) of the voting power of the Company or the surviving or resulting
corporation, as the case may be, the Holder shall, at no additional cost, be
entitled upon exercise of this option to receive in lieu of the shares of Common
Stock as to which this option was exercisable immediately prior to such event,
the number and class of shares of stock or other securities, cash or property
(including, without limitation, shares of stock or other securities of another
corporation or Common Stock) to which the Holder would have been entitled
pursuant to the terms of the merger or consolidation if, immediately prior to
such merger or consolidation, the Holder had been the holder of record of a
number of shares of Common Stock equal to the number of shares as to which this
option shall be so exercised.
If the Company is merged with or into or consolidated with another
corporation under circumstances where stockholders of the Company immediately
prior to such merger or consolidation do not own after such merger or
consolidation shares representing at least fifty percent (50%) of the voting
power of the Company or the surviving or resulting corporation, as the case may
be, or if shares representing fifty percent (50%) or more of the voting power of
the Company are transferred to an Unrelated Third Party, as hereinafter defined,
or if the Company is liquidated, or sells or otherwise disposes of substantially
all its assets while this option remains outstanding, after the effective date
of such merger, consolidation, liquidation, sale or disposition, as the case may
be (the "Transaction"), the Holder of this option shall at no extra cost be
entitled, upon exercise of this option, to receive, in lieu of the shares of
Common Stock as to which this option was exercisable immediately prior to the
Transaction, the number and class of shares of stock or other securities, cash
or property (including, without limitation, shares of stock or other securities
of another corporation or Common Stock) to which the Holder would have been
entitled pursuant to the terms of the transaction if, immediately prior to such
event, the
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Holder had been the holder of record of a number of shares of Common Stock equal
to the number of such shares as to which this option shall be so exercised.
"Unrelated Third Party" shall mean any person who is not, as of the
date of grant of this option, a holder of stock of any class or preference or
any stock option of the Company.
Except as hereinbefore expressly provided, the issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock then
subject to this option.
Notwithstanding the foregoing provisions of this paragraph FOURTH, in
no event shall the exercise price of this option be less than the par value per
share of the Common Stock or other stock for which this option is exercisable.
If any adjustment or right specified in this paragraph by its terms would permit
the Holder on exercise of this option to purchase any share of Common Stock or
any other stock for less than the par value thereof, the Holder shall
nevertheless be required to pay such par value as the exercise price under this
option.
FIFTH: No person shall, by virtue of the granting of this option to the
Holder, be deemed to be a holder of any shares purchasable under this option or
to be entitled to the rights or privileges of a holder of such shares unless and
until this option has been exercised with respect to such shares and they have
been issued pursuant to that exercise of this option.
The granting or exercise of this option shall not impose upon the
Company any obligation to employ or to continue to employ the Holder or to have
or continue the Holder in any other position at the Company, and the right of
the Company to terminate the employment of the Holder or to remove the Holder
from any other position at the Company shall not be diminished or affected by
reason of the fact that this option has been granted to, or exercised by, the
Holder.
The Company shall, at all times while any portion of this option is
outstanding, reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its Common
Stock to satisfy the requirements of this option; shall comply with the terms of
this option promptly upon exercise of the option rights; and shall pay all fees
or expenses necessarily incurred by the Company in connection with the issuance
and delivery of shares pursuant to the exercise of this option.
SIXTH: This option is not transferable by the Holder otherwise than by
will or the laws of descent and distribution, and is exercisable, during the
Holder's lifetime, only by the Holder.
In the event of the death of the Holder and before the expiration date
of this option, this option shall terminate on the earlier of its expiration
date and a date one hundred eighty (180)
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days after the Holder's death. After the death of the Holder, the Holder's
executors, administrators or any person or persons to whom this option may be
transferred by will or by the laws of descent and distribution shall have the
right, at any time prior termination, to exercise such option to the extent the
Holder was entitled to exercise such option immediately prior to the Holder's
death.
SEVENTH: Any notice to be given to the Company hereunder shall be
deemed sufficient if addressed to the Company and delivered by hand or by mail
to the President of the Company, 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000 or such other address as the Company may hereafter
designate.
Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder at the Holder's
address furnished to the Company or when deposited in the mail, postage prepaid,
addressed to the Holder at such address.
EIGHTH: This option is subject to all laws, regulations and orders of
any governmental authority which may be applicable thereto and, notwithstanding
any of the provisions hereof, the Holder agrees that the Holder will not
exercise the option granted hereby nor will the Company be obligated to issue or
sell any shares of stock hereunder if the exercise thereof or the issuance or
sale of such shares, as the case may be, would constitute a violation by the
Holder or the Company of any such law, regulation or order or any provision
thereof. The Company shall not be obligated to take any action in order to cause
the exercise of this option or the issuance of shares pursuant hereto to comply
with any such law, regulation, order or provision.
NINTH: By exercising this option, the Holder shall be deemed to agree
to the following procedure with respect to the Company's shares obtained through
such exercise: Upon request of the Company or the underwriters managing any
underwritten offering of the Company's securities, the Holder shall agree in
writing that for a period of time (not to exceed 180 days) from the effective
date of any registration of securities of the Company the Holder will not sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any shares issued pursuant to the exercise of this option, without
the prior written consent of the Company or such underwriters, as the case may
be.
TENTH: This option shall be governed by, and construed and enforced in
accordance with, the substantive laws of the State of Delaware.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date first above written.
HIPPO, INC.
By: /s/ Xxxx Xxxxxx
-------------------------
Chairman of the Board
ATTEST
/s/ Xxx Xxxxxxx
-------------------
Secretary
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