DILIGENT BOARD MEMBER SERVICES, INC. Stock Option Agreement
EXHIBIT
10.12
2007
STOCK OPTION AND INCENTIVE PLAN
1. Grant of
Option. Diligent Board Member Services, Inc., a Delaware
corporation (the “Company”), hereby grants as of
October 9, 2009 (the “Grant
Date”) to the Optionee named in the Certificate of Stock Option Grant
attached as Exhibit
A (the “Certificate”), an option to
purchase (the “Option”)
the total number of shares subject to the Option (the “Shares”) set forth in the
Certificate at the Xxxxx Xxxxx per share set forth in the Certificate subject to
the terms and provisions of this Stock Option Agreement (the “Agreement”) and of the
Certificate and the Diligent Board Member Services, Inc. 2007 Stock Option and
Incentive Plan (the “Plan”), which are incorporated
herein by reference. Unless otherwise defined herein, the terms defined in the
Plan shall have the same defined meanings in this Agreement. By accepting
the Option, the Optionee (and any person to whom the Option is transferred)
acknowledges that the Plan has been made available to him or her.
If
designated in the Certificate as an Incentive Stock Option, the Option is
intended to qualify as an Incentive Stock Option as defined in Code Section 422.
Nevertheless, to the extent the Option causes the aggregate fair market value of
stock with respect to which incentive stock options are exercisable for the
first time by the Optionee to exceed $100,000 (such value to be determined as of
the Grant Date and such determination to be made in accordance with the rule
described in Code Section 422(d) and as provided in Paragraph (C) of Article V
of the Plan), then the Option shall be treated as a Non-Qualified Stock Option
with respect to the Shares whose value exceeds such $100,000
limit.] If designated in the Certificate as a Non-Qualified Stock
Option, the Option is not intended to qualify as an Incentive Stock Option under
Code Section 422.
The
Company seeks to provide a means by which the Company, through the grant of the
Option to the Optionee, may retain the Optionee’s services and motivate the
Optionee to exert his or her best efforts on behalf of the Company and any
Affiliate.
2. Terms
and Conditions.
(a) Grant Expiration
Date. The Option shall expire on the Grant Expiration Date set
forth in the Certificate (hereinafter the “Grant Expiration
Date”). The Optionee is responsible for taking any and all actions as
may be required to exercise the Option in a timely manner, and for properly
executing any documents as may be required for the exercise of the Option in
accordance with such rules and procedures established from time to time under
the Plan. The Company has no duty to notify the Optionee (or any
person to whom the Option is transferred) of the expiration of the
Option. By accepting the Option, the Optionee (and any person to whom
the Option is transferred) acknowledges that the information regarding the
procedures and requirements for the exercise of the Option has been made
available to him or her.
(b) Exercise of Option During Continuous
Employment. Subject to the provisions of this Agreement, the
Option may be exercised by the Optionee in installments as provided in the
Certificate, rounded to the next lowest integer in the case of any fractional
share.
When the
right to exercise any installment accrues, the Shares included in that
installment may be purchased at that time. To the extent not
exercised, an installment shall accumulate and be exercisable, in whole or in
part, in any subsequent period but not later than the Grant Expiration
Date.
An
exercise of any part of the Option shall be accompanied by a written notice to
the Company as provided in Section 5 of this Agreement and specifying the number
of Shares as to which the Option is being exercised. Such notice must
be received prior to the Grant Expiration Date.
(c) Exercise Upon
Termination of Employment.
Death. In the event
that the Optionee’s Continuous Status as an Employee terminates due to his or
her death, the Option may be exercised by the Optionee’s estate or by any other
person who acquired the Option by reason of the death of the Optionee within the
12 months immediately following his or her death and to the extent that the
Optionee was entitled to exercise the Option at the date of his or her death;
provided, however, that the Option may not be exercised after the Grant
Expiration Date.
Disability. If the
Optionee’s Continuous Status as an Employee terminates due to his or her
disability (as defined in Code Section 22(e)(3)), the Option may be exercised by
the Optionee within the 12 months immediately following such termination and to
the extent that the Optionee was entitled to exercise the Option at the date of
his or her termination due to his or her disability; provided, however, that the
Option may not be exercised after the Grant Expiration Date.
Other Termination of
Relationship. If the Optionee’s Continuous Status as an Employee
terminates other than by death or due to disability or other than involuntarily
for cause, the Optionee’s right to exercise the Option may be exercised within
the three month period immediately following such termination and to the extent
that the Optionee was entitled to exercise the Option at the date of his or her
termination; provided, however, that the Option may not be exercised after the
Grant Expiration Date.
If the
Optionee’s Continuous Status as an Employee is involuntarily terminated for
cause, the Optionee’s right to exercise the Option shall immediately terminate
and any then unexercised portion of the Option shall be immediately
canceled.
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For
purposes of this Agreement, the term “cause” shall mean, with respect to any
Optionee, (a) cause as defined in the employment agreement with the Company
or any subsidiary thereof to which the Optionee is a party or, if none, (b) the
occurrence of any of the following events:
(i) the
willful and continued failure by the Optionee to substantially perform his or
her duties with the Company or any subsidiary thereof on a full-time basis
(other than any such failure resulting from total or partial incapacity due to
physical or mental illness) after a written demand for substantial performance
is delivered to the Optionee by the Board, which demand identifies the manner in
which the Board believes that he or she has not substantially performed such
duties;
(ii) the
willful engaging by the Optionee in conduct which is significantly injurious to
the Company or to any subsidiary of the Company, monetarily or otherwise, after
a written demand for cessation of such conduct is delivered to the Optionee by
the Board, which demand specifically identifies the manner in which the Board
believes that the Optionee has engaged in such conduct and the injury to the
Company or to a subsidiary of the Company resulting therefrom;
(iii) the
commission by the Optionee of an act or acts constituting a crime involving
moral turpitude;
(iv) the
breach by the Optionee of one or more covenants, if any, in an agreement to
which the Optionee and the Company are parties;
(v) violation
by the Optionee of Company policy; or
(vi) the
commission by the Optionee of a significant act of dishonesty, deceit or breach
of fiduciary duty in the performance of the Optionee’s duties with the Company
or with any subsidiary of the Company.
For
purposes of clauses (i) and (ii) of this definition, no act, or failure to act,
on the part of an Optionee shall be deemed to be willful unless knowingly done,
or omitted to be done, by the Optionee not in good faith and without a
reasonable belief that such action or omission was in the best interests of the
Company or of a subsidiary of the Company.
(d) Payment of Xxxxx Xxxxx Upon
Exercise. At the time of any purchase of Shares under the Option,
the Xxxxx Xxxxx for such Shares as set forth in the Certificate shall be paid by
the Optionee in full to the Company. The Optionee may pay the Xxxxx Xxxxx
in whole or in part in cash or by check made payable to the Company and/or the
Optionee may authorize a third party to sell a sufficient portion of the Shares
acquired upon the exercise of the Option and remit to the Company the portion of
the sale proceeds sufficient to pay the Xxxxx Xxxxx and any tax withholding
resulting from such exercise that is not paid by the Optionee in cash or by
check. No exercise shall be effective unless and until the Optionee
has paid the Xxxxx xxxxx for the shares and all withholding tax which is
due.
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(e) Sale of Shares. To
the extent this grant is an Incentive Stock Option, Optionee may not sell the
shares resulting from the exercise of such Option before two years following the
Grant Date and one year after exercise of the Option. If Optionee
does not comply with this requirement, then the favorable tax treatment for
Incentive Stock Options will not apply to such sale.
(f) Nontransferability. The
Option shall not be transferable other than by a will of the Optionee or by the
laws of descent and distribution, and shall be exercisable during the lifetime
of the Optionee only by the Optionee or his attorney-in-fact or conservator,
unless the Option is an Incentive Stock Option and such exercise by the
attorney-in-fact or the conservator of the Optionee would disqualify the Option
as such under Code Section 422.
(g) Adjustments in Event of Change in
Common Stock. If any change is made in the Shares subject to the
Option, without the receipt of consideration by the Company (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company), the Option will be appropriately adjusted in the class(es) and number
of shares and price per share of stock of those subject Shares in such manner as
the Board may deem equitable to prevent substantial dilution or enlargement of
the rights granted to the Optionee; provided, however, that no such adjustment
shall cause the Company to issue a fractional share under the Option. Such
adjustments shall be final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as a transaction not
involving the receipt of consideration by the Company.)
(h) No Rights as a
Shareholder. The Optionee shall have no rights as a shareholder
with respect to any Shares subject to the Option prior to the date of issuance
to him or her of a certificate or certificates for such Shares.
(i) No Rights to Continued
Relationship. The Option shall not confer upon the Optionee any
right with respect to continuance of employment by the Company or by an
Affiliate, nor shall it interfere in any way with the right of his or her
employer to terminate his or her employment at any time.
The
Option shall not confer upon the Optionee any right with respect to continuance
of a directorship of the Company or of an Affiliate, nor shall it interfere in
any way with the right of the shareholders to remove him or her as a director at
any time.
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The
Option shall not confer upon the Optionee any right with respect to continuance
of any consulting arrangement with the Company or any Affiliate, nor shall it
interfere in any way with the right of the Company or an Affiliate, as the case
may be, to terminate any such arrangement.
(j) Sale of the Company. In
the event of a dissolution, liquidation or sale of all or substantially all of
the assets of the Company, or that the Company is not the surviving corporation
in any merger, consolidation, or reorganization, then the Option shall be
canceled as of the effective date of such transaction; provided, however, the
Board shall give at least 30 days’ prior written notice of the transaction to
the Optionee and during the period beginning with the date the Optionee receives
the notice and ending on the date of the transaction, the Optionee shall have
the right to exercise all or any part of the unexercised portion of the Option
(without regard to employment requirements or any installment exercise
limitations) (the “Accelerated
Amount”); provided further that no part of the Option may be exercised
after the Grant Expiration Date. If the Option is an Incentive Stock
Option, the Accelerated Amount under this Section shall remain exercisable as an
Incentive Stock Option under Code Section 422 only to the extent that the
$100,000 dollar limitation of Code Section 422(d) is not exceeded. To the
extent that such dollar limitation is exceeded, the remaining Accelerated Amount
shall be exercisable as a Non-Qualified Stock Option.
(k) Compliance with Other Laws and
Regulations. The Option and the obligation of the Company to sell
and deliver Shares hereunder, shall be subject to all applicable federal and
state laws, rules, and regulations, and to such approvals by any government or
regulatory agency as may be required. The Company shall not be required to
issue or deliver any certificates for Shares prior to the completion of any
registration or qualification of such Shares under any federal or state law, or
any rule or regulation of any governmental body which the Company shall, in its
sole discretion, determine to be necessary or advisable.
Optionee must comply with applicable
securities laws in both the exercise of the Stock Options and the sale of the
underlying stock.
To the extent applicable, it is
intended that this Agreement and the Plan comply with the provisions of Section
409A of the Code. This Agreement and the Plan shall be administered
in a manner consistent with this intent, and any provision that would cause this
Agreement or the Plan to fail to satisfy Section 409A of the Code shall have no
force or effect until amended to comply with Section 409A of the Code (which
amendment may be retroactive to the extent permitted by Section 409A of the Code
and may be made by the Company without the consent of the
Optionee).
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(l) Withholding Taxes. The
Optionee agrees to make appropriate arrangements with the Company or Affiliate,
as the case may be, for the satisfaction of all federal, state and local income
and employment tax withholding requirements applicable to the exercise of the
Option at the time of such exercise. No Shares will be delivered
pursuant to the exercise of the Option until the Optionee, or any other person
to whom the Option is transferred, has made acceptable arrangements for these
withholding requirements.
3. Investment
Representation. The Company may require that the Optionee furnish
to the Company, as a condition of exercising or acquiring Shares underlying the
Option, (a) written assurances satisfactory to the Company, or counsel for
the Company, as to the Optionee’s knowledge and experience in financial and
business matters and/or to employ a purchaser representative reasonably
satisfactory to the Company, or counsel for the Company, who is knowledgeable
and experienced in financial and business matters, and that he or she is capable
of evaluating, alone or together with the purchaser representative, the merits
and risks of exercising the Option; and (b) written assurances satisfactory
to the Company, or counsel for the Company, stating that the Optionee is
acquiring the stock subject to the Option for the Optionee’s own account and not
with any present intention of selling or otherwise distributing the stock
underlying the Option. The Company may (a) restrict the
transferability of the Shares underlying the Option and require a legend to be
endorsed on the certificates representing such Shares, as appropriate to reflect
resale restrictions, if any, imposed by the Board pursuant to the Option when
granted, or as appropriate to comply with any applicable state or federal
securities laws, rules or regulations; and (b) condition the exercise of
the Option or the issuance and delivery of the Shares underlying the Option upon
the listing, registration or qualification of such Shares upon a securities
exchange or quotation system or under applicable securities laws. The
foregoing requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (a) the issuance of Shares upon the exercise of the
Option has been registered under a then currently effective registration
statement under the Securities Act, or (b) as to any particular
requirement, a determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the then applicable
securities laws. The Company may, upon advice of counsel to the Company,
place legends on stock certificates issued under the Option as such counsel
deems necessary or appropriate in order to comply with applicable securities
laws, including, but not limited to, legends restricting the transfer of the
stock.
4. Optionee Bound by the
Plan. The Optionee agrees to be bound by all the terms and
provisions of the Plan. To the extent that the terms of this Agreement are
inconsistent with the terms of the Plan, the terms of the Plan shall
govern. The captions used in the Certificate, this Agreement, and the Plan
are inserted for convenience and shall not be deemed a part of the Option for
construction or interpretation.
This
Agreement, the Certificate, and the Plan shall be construed in accordance with
the laws of the State of Delaware, without regard to the conflict of laws
principles.
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5. Notices. Any notice to
the Company or the Board that is required to be made under the terms of the
Agreement or under the terms of the Plan shall be addressed to the Company in
care of its president at 00 Xxxx 00xx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice that is required to
be made to the Optionee under the terms of the Agreement or under the terms of
the Plan shall be addressed to him or her at the address indicated in the
Certificate unless the Optionee notifies the Company of his or her address
change in writing as provided in this Section 5 in which case the notice shall
be addressed to the Optionee at his or her new address. A notice under
this Section 5 shall be deemed to have been given or delivered upon personal
delivery or upon deposit in the United States mail, by registered or certified
mail, postage prepaid and properly addressed as provided in this
Section.
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IN
WITNESS WHEREOF, the parties have entered into this Agreement effective as of
the Grant Date.
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Company
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By:
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| Name: | Xxxx Xxxx | ||
| Title: | President and Chief Executive Officer | ||
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Grantee/Optionee
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| Name: | |||
| Title: | President and Chief Executive Officer | ||
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Exhibit
A
CERTIFICATE
FOR
Grant
Date:
Type of
Option: Incentive Stock
Option
Grant/ Exercise
Price:
Total
Shares Granted:
Grant
Expiration Date:
Vesting
Schedule: The Options shall vest and shall no longer be
subject to substantially risk of forfeiture in accordance with the following
schedule:
