NON-STATUTORY STOCK OPTION AGREEMENT-#47
THIS AGREEMENT is entered into and effective as of this 19 day of
September, 1996(the "Date of Grant"), by and between Tech Squared Inc. (the
"Company") and Xxxxx Xxxxx (the "Optionee").
A. The Company has adopted the Tech Squared Inc. 1995 Stock Option Plan
(the "Plan") authorizing the Board of Directors of the Company, or a
committee as provided for in the Plan (the Board or such a committee to be
referred to as the "Committee"), to grant non-statutory stock options to
employees and non-employee consultants and independent contractors of the
Company and its Subsidiaries (as defined in the Plan).
B. The Company desires to give the Optionee an inducement to acquire a
proprietary interest in the Company and an added incentive to advance the
interests of the Company by granting to the Optionee an option to purchase
shares of common stock of the Company pursuant to the Plan.
Accordingly, the parties agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and
option (the "Option") to purchase Three Hundred Fifty One Thousand (351,000)
shares (the "Option Shares") of the Company's common stock, no par value (the
"Common Stock"), according to the terms and subject to the conditions
hereinafter set forth and as set forth in the Plan. The Option is not
intended to be an "incentive stock option," as that term is used in Section
422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise
of the Option will be $0.75 (seventy-five cents).
3. DURATION OF OPTION AND TIME OF EXERCISE.
3.1 INITIAL PERIOD OF EXERCISABILITY. The Option will become
exercisable with respect to the Option Shares in 4 installments. The
following table sets forth the initial dates of exercisability of each
installment and the number of Option Shares as to which this Option will
become exercisable on such dates:
Initial Date of Number of Option Shares
Exercisability Available for Exercise
-------------- -----------------------
August 21, 1997 117,000
August 21, 1998 117,000
August 21, 1999 117,000
The foregoing rights to exercise this Option will be cumulative with respect
to the Option Shares becoming exercisable on each such date, but in no event
will this Option be exercisable after, and this Option will become void and
expire as to all unexercised Option Shares at, 5:00 p.m. (Minneapolis,
Minnesota time) on August 21, 2003 (the "Time of Termination").
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3.2 TERMINATION OF EMPLOYMENT OR OTHER SERVICE.
(a) TERMINATION DUE TO DEATH, DISABILITY OR RETIREMENT. In the event
that the Optionee's employment or other service with the Company and all
Subsidiaries is terminated by reason of the Optionee's death, Disability (as
defined in the Plan) or Retirement (as defined in the Plan), this Option will
become immediately exercisable in full and will remain exercisable for a
period of one year after such termination (but in no event after the Time of
Termination).
(b) TERMINATION FOR REASONS OTHER THAN DEATH, DISABILITY OR RETIREMENT.
In the event the Optionee's employment or other service with the Company and
all Subsidiaries is terminated for any reason other than death, Disability or
Retirement, or the Optionee is in the employ or service of a Subsidiary and
the Subsidiary ceases to be a Subsidiary of the Company (unless the Optionee
continues in the employ or service of the Company or another Subsidiary), all
rights of the Optionee under the Plan and this Agreement will immediately
terminate without notice of any kind, and this Option will no longer be
exercisable; provided, however, that if such termination is due to any reason
other than termination by the Company or any Subsidiary for "cause," all
outstanding Options then held by such Participant will remain exercisable to
the extent exercisable as of such termination for a period of three months
after such termination (but in no event after the expiration date of any such
Option).
3.3 CHANGE IN CONTROL.
(a) IMPACT OF CHANGE IN CONTROL. If any events constituting a Change
in Control (as defined in the Plan) of the Company occur, this Option will
become immediately exercisable in full and will remain exercisable until the
Time of Termination, regardless of whether the Optionee remains in the employ
or service of the Company or any Subsidiary. In addition, if a Change in
Control of the Company occurs, the Committee, in its sole discretion and
without the consent of the Optionee, may determine that the Optionee will
receive, with respect to some or all of the Option Shares, as of the
effective date of any such Change in Control of the Company, cash in an
amount equal to the excess of the Fair Market Value (as defined in the Plan)
of such Option Shares immediately prior to the effective date of such Change
in Control of the Company over the option exercise price per share of this
Option.
(b) LIMITATION ON CHANGE IN CONTROL PAYMENTS. Notwithstanding anything
in this Section 3.3 to the contrary, if, with respect to the Optionee,
acceleration of the vesting of this Option or the payment of cash in exchange
for all or part of the Option Shares as provided above (which acceleration or
payment could be deemed a "payment" within the meaning of Section 280G(b)(2)
of the Code), together with any other payments which the Optionee has the
right to receive from the Company or any corporation which is a member of an
"affiliated group" (as defined in Section 1504(a) of the Code without regard
to Section 1504(b) of the Code) of which the Company is a member, would
constitute a "parachute payment" (as defined in Section 280G(b)(2) of the
Code), the payments to the Optionee as set forth herein will be reduced to
the largest amount as will result in no portion of such "payments" being
subject to the excise tax imposed by Section 4999 of the Code; provided,
however, that if the Optionee is subject to a separate agreement with the
Company or a Subsidiary that expressly addresses the potential application of
Sections 280G or 4999 of the Code (including, without limitation, that
"payments" under such agreement or otherwise will not be reduced or that the
Optionee will have the discretion to determine which "payments" will be
reduced), then the limitations of this Section 3.3(c) will not apply, and any
"payments" to the Optionee pursuant to this Section 3.3(c) or pursuant to
Section 9(c) or 9(d) of the Plan will be treated as "payments" arising under
such separate agreement.
3.4 ACCELERATION OF VESTING. If a Profitable Doubling of sales and
related acceleration of vesting occurs pursuant to section 3.4 of the
Incentive Stock Option Agreement #46 between Xxxxx Xxxxx and Tech Squared,
then the options granted pursuant to this agreement shall also be subject to
accelerated vesting. The vesting of these options shall accelerate upon the
occurrence of a "profitable doubling again" in net sales of Tech Squared,
Inc. "Profitable Doubling Again" of net sales is defined as an increase by
100% in any calendar quarter of 1998 net sales for Tech Squared, Inc., as
compared to the same quarter of 1997 along with a net income. Should a
Profitable Doubling Again occur then the 117,000 shares scheduled to vest on
August 21, 1999 will vest at the end of the quarter in which the Profitable
Doubling Again occurs.
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4. MANNER OF OPTION EXERCISE.
4.1 NOTICE. This Option may be exercised by the Optionee in whole or
in part from time to time, subject to the conditions contained in the Plan
and in this Agreement, by delivery, in person, by facsimile or electronic
transmission or through the mail, to the Company at its principal executive
office in Edina, Minnesota (Attention: Chief Financial Officer), of a written
notice of exercise. Such notice will be in a form satisfactory to the
Committee, will identify the Option, will specify the number of Option Shares
with respect to which the Option is being exercised, and will be signed by
the person or persons so exercising the Option. Such notice will be
accompanied by payment in full of the total purchase price of the Option
Shares purchased. In the event that the Option is being exercised, as
provided by the Plan and Section 3.2 above, by any person or persons other
than the Optionee, the notice will be accompanied by appropriate proof of
right of such person or persons to exercise the Option. As soon as
practicable after the effective exercise of the Option, the Optionee will be
recorded on the stock transfer books of the Company as the owner of the
Option Shares purchased, and the Company will deliver to the Optionee one or
more duly issued stock certificates evidencing such ownership.
4.2 PAYMENT. At the time of exercise of this Option, the Optionee will pay
the total purchase price of the Option Shares to be purchased entirely in
cash (including a check, bank draft or money order, payable to the order of
the Company); provided, however, that the Committee, in its sole discretion,
may allow such payment to be made, in whole or in part, by tender of a
promissory note (on terms acceptable to the Committee in its sole discretion)
or a Broker Exercise Notice or Previously Acquired Shares (as such terms are
defined in the Plan), or by a combination of such methods. In the event the
Optionee is permitted to pay the total purchase price of this Option in whole
or in part with Previously Acquired Shares, the value of such shares will be
equal to their Fair Market Value on the date of exercise of this Option.
5. RIGHTS OF OPTIONEE; TRANSFERABILITY.
5.1 EMPLOYMENT OR SERVICE. Nothing in this Agreement will interfere
with or limit in any way the right of the Company or any Subsidiary to
terminate the employment or service of the Optionee at any time, nor confer
upon the Optionee any right to continue in the employ or service of the
Company or any Subsidiary at any particular position or rate of pay or for
any particular period of time.
5.2 RIGHTS AS A SHAREHOLDER. The Optionee will have no rights as a
shareholder unless and until all conditions to the effective exercise of this
Option (including, without limitation, the conditions set forth in Section 4
of this Agreement and Section 11 of the Plan) have been satisfied and the
Optionee has become the holder of record of such shares. No adjustment will
be made for dividends or distributions with respect to this Option as to
which there is a record date preceding the date the Optionee becomes the
holder of record of such shares, except as may otherwise be provided in the
Plan or determined by the Committee in its sole discretion.
5.3 RESTRICTIONS ON TRANSFER. Except pursuant to testamentary will or
the laws of descent and distribution or as otherwise expressly permitted by
the Plan, no right or interest of the Optionee in this Option prior to
exercise may be assigned or transferred, or subjected to any lien, during the
lifetime of the Optionee, either voluntarily or involuntarily, directly or
indirectly, by operation of law or otherwise. The Optionee will, however, be
entitled to designate a beneficiary to receive this Option upon such
Optionee's death, and, in the event of the Optionee's death, exercise of this
Option (to the extent permitted pursuant to Section 3.2(a) of this Agreement)
may be made by the Optionee's legal representatives, heirs and legatees.
6. WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of
the Optionee (or from other amounts that may be due and owing to the Optionee
from the Company), or make other arrangements for the collection of, all
legally required amounts necessary to satisfy any federal, state or local
withholding and employment-related tax requirements attributable to the grant
or exercise of this Option or otherwise incurred with respect to this Option,
or (b) require the Optionee promptly to remit the amount of such withholding
to the Company before acting on the Optionee's notice of
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exercise of this Option. In the event that the Company is unable to withhold
such amounts, for whatever reason, the Optionee agrees to pay to the Company
an amount equal to the amount the Company would otherwise be required to
withhold under federal, state or local law.
7. ADJUSTMENTS.
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, divestiture or extraordinary dividend
(including a spin-off), or any other change in the corporate structure or
shares of the Company, the Committee (or, if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation), in order to prevent dilution or enlargement of the rights of
the Optionee, will make appropriate adjustment (which determination will be
conclusive) as to the number, kind and exercise price of securities subject
to this Option.
8. CONFIDENTIAL INFORMATION.
8.1 USE AND NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Optionee
hereby agrees that the Confidential Information will not be used by the
Optionee in any way detrimental to the Company and that all such Confidential
Information shall be kept confidential by the Optionee. Notwithstanding the
foregoing, no obligation of confidentiality shall apply to Confidential
Information which the Optionee can show: (a) is now or hereafter becomes
publicly known in published form or available through no act or failure on
the part of the Optionee; (b) is known by the Optionee on a non-confidential
basis at the time of the receipt of such Confidential Information as
established by documentary evidence in its files; (c) is hereafter furnished
to the Optionee by a third party who has rightfully obtained such
Confidential Information without restriction on disclosure.
8.2 INJUNCTIVE RELIEF. It is further agreed that any money damages
would not be sufficient to remedy any breach of this Agreement and that the
Company shall be entitled to injunctive relief, specific performance or any
other appropriate equitable remedy for any such breach, in addition to all
other remedies available by law or in equity. In addition, the Company shall
be entitled to payment of legal fees and disbursements, court costs and other
expenses of protecting its rights hereunder.
8.3 CONFIDENTIAL INFORMATION.
(a) "Confidential Information", as used in this Article 6, means
information or material which is not generally available to
or used by others, or the utility or value of which is not
generally known or recognized as standard practice, whether
or not the underlying details are in the public domain,
including:
(i) information or material relating to the Company, and its
businesses as conducted or anticipated to be conducted, business
plans, operations, past, current or anticipated software, products
or services, customers or prospective customers, or research,
engineering, development, manufacturing, purchasing, accounting,
or marketing activities;
(ii) information relating to employee compensation,
including without limitation, salaries, bonuses or stock options.
(iii) trade secrets; and
(iv) any similar information of the type described above
which the Company obtained from another party and which the
Company treats as or designates as being proprietary, private or
confidential, whether or not owned or developed by the Company.
Notwithstanding the foregoing, "Confidential Information"
does not include any information which is properly published or
in the public domain; provided, however, that information which
is published by or with the aid of the
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Optionee outside the scope of employment or contrary to the
requirements of this Agreement will not be considered to have
been properly published, and therefore will not be in the public
domain for purposes of this Agreement.
(b) The Optionee will never, either during or after his
employment by the Company, use Confidential Information for any
purpose other than the business of the Company or publish or
disclose it to any person who is not also an employee of the
Company. When the Optionee's employment with the Company ends,
the Optionee will promptly deliver to the Company all records and
any compositions, articles, devices, apparatus and other items
that disclose, describe or embody Confidential Information,
including all copies, reproductions and specimens of the
Confidential Information in the Optionee's possession, regardless
of who prepared them, and will promptly deliver any other property
of the Company in the Optionee's possession, whether or not
Confidential Information.
9. NON-COMPETITION.
During the period of the Optionee's employment with the Company and for a
further period of One (1) year after termination of employment with the Company
for any reason, Optionee will not, directly or indirectly, within the United
States, either for his own benefit or for the benefit of any other person, firm
or corporation whatsoever, other than the Company, (i) directly engage in any
commercial activity that competes with the Company's business relating to the
sales of Macintosh storage devices or the direct sales of computer graphics
devices, (ii) in any way interfere or attempt to interfere with the Company's
relationships with any of its current or potential customers, or (iii) employ
or attempt to employ any of the Company's then employees on behalf of any other
entity competing with the Company. Optionee acknowledges that if he breaches
this covenant, the Company will be irreparably and immeasurably injured.
Therefore, Optionee agrees that in addition to any other remedies available to
the Company, the Company may apply to a court of competent jurisdiction for a
temporary and/or permanent injunction and that such court may grant such
injunction to restrain and prohibit such breach by Employee. Notwithstanding
the foregoing, it is understood that the restrictions contained in this Article
7 shall cease to be applicable to any activity of the Optionee from and after
such time as the Company (a) shall have ceased all business activities for a
period of sixty (60) days or (b) shall have made a decision through the Board
of Directors not to continue, or shall have ceased for a period of sixty (60)
days, the business activities with which such activity of Optionee would be
competitive.
10. REMEDY FOR BREACH OF AGREEMENT.
In addition to all other remedies available to the Company for breach of
the terms of this Agreement, upon the breach by the Optionee of any provision
of Section 8 or 9 hereof, the Company shall have the right to (i) cancel and
terminate this Option and all rights granted hereby or under the Plan, without
notice, effective as of the date of the breach, and this Option will no longer
be exercisable and (ii) within thirty (30) days receive payment from the
Optionee of that amount of money equal to the aggregate gross sale price of any
Option Shares sold by the Optionee less the exercise price paid for such Option
Shares.
11. LIMITATION OF LIABILITY.
Nothing in this Agreement will be construed to (a) limit in any way the
right of the Company to terminate the employment or service of the Optionee at
any time, or (b) be evidence of any agreement or understanding, express or
implied, that the Company will retain the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
12. SUBJECT TO PLAN.
The Option and the Option Shares granted and issued pursuant to this
Agreement have been granted and issued under, and are subject to the terms of,
the Plan. The terms of the Plan are incorporated by reference in this
Agreement in their entirety, and the Optionee, by execution of this Agreement,
acknowledges having received a copy of the Plan. The provisions of this
Agreement will be interpreted as to be consistent with the Plan, and any
ambiguities in this Agreement will be
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interpreted by reference to the Plan. In the event that any provision of this
Agreement is inconsistent with the terms of the Plan, the terms of the Plan
will prevail.
13. MISCELLANEOUS.
13.1 BINDING EFFECT. This Agreement will be binding upon the heirs,
executors, administrators and successors of the parties to this Agreement.
13.2 GOVERNING LAW. This Agreement and all rights and obligations under
this Agreement will be construed in accordance with the Plan and governed by
the laws of the State of Minnesota, without regard to conflicts of laws
provisions. Any legal proceeding related to this Agreement will be brought in
an appropriate Minnesota court, and the parties to this Agreement consent to
the exclusive jurisdiction of the court for this purpose.
13.3 ENTIRE AGREEMENT. This Agreement and the Plan set forth the entire
agreement and understanding of the parties to this Agreement with respect to
the grant and exercise of this Option and the administration of the Plan and
supersede all prior agreements, arrangements, plans and understandings relating
to the grant and exercise of this Option and the administration of the Plan.
13.4 AMENDMENT AND WAIVER. Other than as provided in the Plan, this
Agreement may be amended, waived, modified or canceled only by a written
instrument executed by the parties to this Agreement or, in the case of a
waiver, by the party waiving compliance.
The parties to this Agreement have executed this Agreement effective the
day and year first above written.
TECH SQUARED INC.
By___________________________________
Its________________________________
By execution of this Agreement, OPTIONEE
the Optionee acknowledges having
received a copy of the Plan. _____________________________________
(Signature)
_____________________________________
_____________________________________
_____________________________________
_____________________________________
(Name and Address)
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