EXHIBIT 10.10
XXXXXXXXXXXXX.XXX, LLC
EQUITY OPTION AGREEMENT
Xxxx X. Xxxxx Date Option Granted: December 20, 1999
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Name of Optionee
000 Xxxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
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Residence Address
THIS AGREEMENT is made as of the date set forth above between
XxxxxXxxxxxxx.xxx, LLC, a Delaware limited liability company (the "Company") and
the optionee named above (the "Optionee").
RECITAL
The Management Board of the Company (the "Board"), has determined that it
is to the advantage and interest of the Company and its members to grant the
option provided for herein to the Optionee as an inducement to enter or remain
in the service of the Company and as an incentive for increased effort during
such service. In consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Grant of Option
(a) The Company grants to the Optionee the right and option (the
"Option") to purchase on the terms and conditions hereinafter set forth all or
any part of 1,767,020 Membership Interests (as such term is defined in the
Operating Agreement) (the "Shares") of the Company (comprising, if the Option
was fully exercised, the equivalent of an aggregate of a four percent (4%)
Percentage Interest (as such term is defined in the Operating Agreement)
computed on a Fully-Diluted Basis (as such term is defined in that certain
Interest Purchase Agreement dated of even date herewith between the Company and
the Optionee (the "Interest Purchase Agreement")) in the Company as of the date
hereof) at the purchase price of $2.38284 per Share. The Option shall become
exercisable over time as set forth on Schedule 1 attached hereto or as otherwise
provided herein.
(b) Nothing contained herein shall be construed to amend, alter or
modify the terms or provisions set forth in the Employment Agreement between the
Company and the Optionee dated as of December __, 1999 (the "Employment
Agreement"). This is the Option referred to in Section 4(d) of the Employment
Agreement.
1.
(c) If within twelve (12) months after the occurrence of a Change of
Control (as defined below) the Optionee's employment with the Company is
terminated without Cause (as defined in the Employment Agreement) or with Good
Reason (as defined in the Employment Agreement), the entire Option, to the
extent that all or any portion of the Option has not become exercisable pursuant
to Schedule 1 attached hereto, shall become fully exercisable immediately upon
such termination.
A "Change in Control" shall be deemed to have occurred for purposes of this
Agreement on the effective date of (a) any Person (as such term is used in
Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) becoming the "beneficial owner" (as determined pursuant to Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of the voting
equity interests of the Company; or (b) the approval by the Company's equity
interest holders of (A) an agreement to merge, consolidate or otherwise combine
with, or otherwise enter into a transaction with, another Person, which will
result (whether separately or in connection with a series of related
transactions) in a change of ownership of fifty percent (50%) or more of the
current voting control of, or beneficial rights to, the voting equity interests
of the Company, or (B) an agreement to sell or otherwise dispose of all or
substantially all of the Company's assets (including, without limitation, a plan
of liquidation or dissolution) which will result in a change of ownership of
fifty percent (50%) or more of either control of the Company's assets or its
voting equity interests, or (C) a fundamental alteration in the nature of the
Company's business. Notwithstanding anything in the immediately preceding
sentence to the contrary, a "Change in Control" shall not include any
transaction or series of transactions described in the preceding sentence in
which (I) the Company or any of its subsidiaries, (II) an employee benefit plan
of the Company or any of its subsidiaries, or a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any of its
subsidiaries, (III) Persons (and the beneficial or ultimate owners or Affiliates
(as hereinafter defined) of such Persons) who are Members (as defined in the
Operating Agreement referred to in Section 9 hereof) of the Company on the date
hereof, (IV) a company owned, directly or indirectly, by Members in
substantially the same proportions as their ownership of the Company, or (V) an
underwriter temporarily holding securities (an "Investor") pursuant to an
offering of such securities, is or becomes a "beneficial owner", directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of all voting securities of the Company then outstanding,
or comes to control fifty percent (50%) or more of the Company's assets.
"Affiliate" shall mean any person or business entity which controls, is
controlled by, or is under the common control with, any other person.
2. Exercise.
(a) The right to exercise the Option granted hereunder in accordance
with Sections 1(a) or 1(c), to the extent unexercised, shall remain in effect
for a period of five (5) years from the date of grant of this Option.
(b) This Option shall become exercisable at the times specified in
Sections 1(a) and 1(c) of this Agreement. This Option shall remain exercisable
as provided in Section 2(a) of this Agreement
2.
3. Method of Exercise. To the extent that the right to exercise has
accrued hereunder, the Option may be exercised from time to time by written
notice to the Company stating the number of Shares which are being purchased
pursuant to this Option, together with payment, in full, in cash or by certified
or cashier's check payable to the order of the Company, of the purchase price
for such Shares exercised. If requested by the Board, prior to completing the
sale of the equity as contemplated hereunder, the Optionee shall supply the
Board with a representation that the Shares are not being acquired with a view
to distribution and will be sold or otherwise disposed of only in accordance
with applicable federal and state statutes, rules and regulations. As a
condition to the exercise of the Option, in whole or in part, the Board may, in
its sole discretion, require the Optionee to pay, in addition to the purchase
price for the Shares being purchased, an amount equal to any federal, state or
local taxes that the Board has determined are required to be paid in connection
with the exercise of the Option. As soon after the notice of exercise as the
Company is reasonably able to comply, the Company shall, without transfer or
issue tax to the Optionee or other person entitled to exercise the Option,
update its records to reflect the change in the ownership of the Company due to
the exercise of this Option.
In the Board's sole discretion, payment of the purchase price for
the Shares to be delivered, but not of the amount of any withholding taxes, may
be made in whole or in part with Shares. If requested by the Board, prior to the
acceptance of payment with Shares in the Company, the Optionee shall supply the
Board with a written representation and warranty that he has good and marketable
title to the Shares, free and clear of liens and encumbrances. The value of the
Shares tendered in payment for the Shares purchased shall be its fair market
value (as determined by the Board in good faith) on the date of the Optionee's
notice of exercise.
The Optionee may from time to time exercise the Option for less than the
full number of Shares for which the Option is exercisable.
4. Termination of Option. The Option shall terminate and expire upon the
earliest to occur of:
(a) The last date for exercise of the Option as provided in Section
2(a) of this Agreement; or
(b) The termination of the Option pursuant to Section 5(b) hereof.
Subject to Section 1(c) hereof, a termination of employment of the
Optionee for any reason shall not accelerate or otherwise affect the equity with
respect to which the Option may be exercised, and the Option may only thereafter
be exercised with respect to the portion of the Shares for which it was
exercisable at the date of such termination of employment. In the event of
termination of the Optionee's employment with the Company due to the Optionee's
death, the Option may continue to be exercised prior to its expiration by his
personal representative, or if there is no personal representative, by his heir
or legatee. However, the Option may only be exercised with respect to the
portion of the Shares for which it was exercisable at the date of the Optionee's
death.
3.
Termination of employment (other than by reason of death) for
purposes hereof shall be deemed to take place upon the earliest to occur of the
following: (i) the date of the Optionee's retirement under the normal retirement
policies of the Company or any Affiliate; (ii) the date the Optionee receives
notice or advice that his employment is terminated; (iii) the date the Optionee
provides notice to the Company that his employment is terminated; or (iv) the
date the Optionee's employment is terminated for Disability (as such term is
defined in the Employment Agreement) pursuant to Section 6(a) of the Employment
Agreement. The fact that the Optionee may receive payment from the Company or
any Affiliate after termination for vacation pay, for services rendered prior to
termination, for salary in lieu of notice or for other benefits shall not affect
the termination date.
5. Adjustments.
(a) If the outstanding Shares of the Company change from the date an
Option is granted due to a combination or subdivision of outstanding Shares or a
distribution payable pro rata to the Members and Assignees (as such term is
defined in the Operating Agreement) of the Company in Shares, the number of
Shares for which such Option shall thereafter be or become exercisable, and the
price to be paid for any Share on exercise of such Option, shall be
proportionately adjusted. In the event of any reclassification or change of
outstanding Shares (including pursuant to a Reorganization (as such term is
defined in the Interest Purchase Agreement)), immediately thereafter (and
subject to further adjustment for subsequent events) any outstanding Option
shall thereafter relate to shares, units or other equity interests in the
Company equivalent in kind and value to those shares, units or other equity
interests in the Company the Optionee would have received if he or she had held
of record the full remaining number of Shares such to the Option immediately
prior to such reclassification or change.
(b) Notwithstanding the provisions of subsection (a) of this Section
5, upon the dissolution or liquidation of the Company or upon any
reorganization, merger or consolidation with one or more entities in which the
Company is not the surviving entity, or upon a sale of substantially all of the
assets of the Company or of more than 80% of the then outstanding equity of the
Company to another entity, this Option shall terminate, provided, however, that
(i) this Option, if no option has been tendered by a surviving or successor
entity in accordance with all of the terms of provision (ii) immediately below,
shall become fully exercisable subject Section 5(c) below for a period of at
least 30 days before the effective date of such dissolution, liquidation,
merger, consolidation or sale of equity or assets or (ii) in its sole and
absolute discretion, any surviving or successor entity may, but shall not be
obligated to, tender to the Optionee an option or options to purchase equity of
such surviving or successor entity (or an Affiliate thereof) containing such
terms and provisions as shall be required substantially to preserve the rights
and benefits of the Optionee's Option as then outstanding. The provisions of
this paragraph (b) will not apply to a Reorganization.
(c) This Option shall not be exercisable (and any attempted exercise
will be deemed null and void) if such exercise would create a right of recovery
for "short-swing profits" under Section 16(b) of the Exchange Act.
4.
(d) Any adjustment required by this Section 5 shall be determined
and made by the Board.
6. Non-Transferability. The Option is not assignable or transferable by
the Optionee, either voluntarily or by operation of law, otherwise than by will
or by the laws of descent and distribution, and is exercisable, during the
Optionee's lifetime, only by the Optionee.
7. No Ownership Rights. The Optionee or other person entitled to exercise
the Option shall have no rights or privileges with respect to any Shares subject
hereto, and no adjustment (except such adjustments as may be effected pursuant
to the provisions of Section 5 hereof) shall be made for dividends or
distribution of rights in respect of such equity if the record date is prior to
the date on which the Optionee or such person becomes the holder of record.
The Option will not be treated as an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
8. Conditions to Issuance of Option. THE COMPANY'S OBLIGATION TO ISSUE A
MEMBERSHIP INTEREST UPON EXERCISE OF THE OPTION IS EXPRESSLY CONDITIONED UPON
THE COMPLETION BY THE COMPANY OF ANY REGISTRATION OR OTHER QUALIFICATION OF SUCH
SECURITY UNDER ANY STATE AND/OR FEDERAL LAW OR RULINGS OR REGULATIONS OR ANY
GOVERNMENT REGULATORY BODY OR THE MAKING OF SUCH INVESTMENT REPRESENTATIONS OR
OTHER REPRESENTATIONS AND AGREEMENTS BY THE OPTIONEE OR ANY PERSON ENTITLED TO
EXERCISE THE OPTION IN ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION
FROM ANY SUCH REGISTRATION OR OTHER QUALIFICATION OF SUCH SECURITY WHICH THE
BOARD SHALL, IN ITS SOLE DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED
REPRESENTATIONS AND AGREEMENTS INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE
OPTIONEE, OR ANY OTHER PERSON ENTITLED TO EXERCISE THE OPTION, (A) IS NOT
PURCHASING SUCH SECURITY FOR DISTRIBUTION AND (B) AGREES TO HAVE PLACED UPON THE
FACE AND REVERSE OF ANY CERTIFICATE FOR SUCH SECURITY A LEGEND SETTING FORTH ANY
REPRESENTATIONS AND AGREEMENTS WHICH HAVE BEEN GIVEN TO THE BOARD OR A REFERENCE
THERETO AND STATING THAT, PRIOR TO MAKING ANY SALE OR OTHER DISPOSITION OF ANY
SUCH SECURITY, THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO EXERCISE THE
OPTION, WILL GIVE THE COMPANY NOTICE OF INTENTION TO SELL OR DISPOSE OF THE
SECURITY NOT LESS THAN FIVE DAYS PRIOR TO SUCH SALE OR DISPOSITION.
9. Operating Agreement. Upon the exercise of any portion of this Option,
the Optionee agrees to become a party to the Company's Amended and Restated
Operating Agreement, dated as of June 1, 1999, as may be amended from time to
time, (as a Member) and be bound by such agreement's terms and conditions (as a
Member).
10. Method of Acceptance. This Agreement is addressed to the Optionee in
duplicate and shall not be effective until the Optionee executes the acceptance
below and returns one copy
5.
to the Company, thereby acknowledging that he has read and agreed to all the
terms and conditions of this Agreement.
EXECUTED this 20th day of December, 1999.
XXXXXXXXXXXXX.XXX, LLC
By: /s/ Xxxxxx Xxxxx
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Title: Chairman
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ACCEPTED:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
December 20, 1999
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Date
SCHEDULE 1
Vesting Schedule
Date Percent of Optionee's
---- Option Becoming Exercisable
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End of Month 1* 1.041667%
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End of Month 2 1.041667%
--------------------------------------------------------------------------------
End of Month 3 1.041667%
--------------------------------------------------------------------------------
End of Month 4 1.041667%
--------------------------------------------------------------------------------
End of Month 5 1.041667%
--------------------------------------------------------------------------------
End of Month 6 1.041667%
--------------------------------------------------------------------------------
End of Month 7 1.041667%
--------------------------------------------------------------------------------
End of Month 8 1.041667%
--------------------------------------------------------------------------------
End of Month 9 1.041667%
--------------------------------------------------------------------------------
End of Month 10 1.041667%
--------------------------------------------------------------------------------
End of Month 11 1.041667%
--------------------------------------------------------------------------------
End of Month 12 1.041667%
--------------------------------------------------------------------------------
End of Month 13 2.604166%
--------------------------------------------------------------------------------
End of Month 14 2.604166%
--------------------------------------------------------------------------------
End of Month 15 2.604166%
--------------------------------------------------------------------------------
End of Month 16 2.604166%
--------------------------------------------------------------------------------
End of Month 17 2.604166%
--------------------------------------------------------------------------------
End of Month 18 2.604166%
--------------------------------------------------------------------------------
End of Month 19 2.604166%
--------------------------------------------------------------------------------
End of Month 20 2.604166%
--------------------------------------------------------------------------------
End of Month 21 2.604166%
--------------------------------------------------------------------------------
End of Month 22 2.604166%
--------------------------------------------------------------------------------
End of Month 23 2.604166%
--------------------------------------------------------------------------------
End of Month 24 2.604166%
--------------------------------------------------------------------------------
End of Month 25 2.604166%
--------------------------------------------------------------------------------
End of Month 26 2.604166%
--------------------------------------------------------------------------------
End of Month 27 2.604166%
--------------------------------------------------------------------------------
End of Month 28 2.604166%
--------------------------------------------------------------------------------
End of Month 29 2.604166%
--------------------------------------------------------------------------------
End of Month 30 2.604166%
--------------------------------------------------------------------------------
End of Month 31 2.604166%
--------------------------------------------------------------------------------
End of Month 32 2.604166%
--------------------------------------------------------------------------------
End of Month 33 2.604166%
--------------------------------------------------------------------------------
End of Month 34 2.604166%
--------------------------------------------------------------------------------
End of Month 35 2.604166%
--------------------------------------------------------------------------------
End of Month 36 2.604166%
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Fourth Anniversary of the Effective Date** 25.0%
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Total: 100%
* Month 1 shall mean the first full month following the Effective Date.
** "Effective Date" has the meaning ascribed to such term in the Employment
Agreement.
