Exhibit 10.25
CONCORD COMMUNICATIONS, INC.
Employee
Non-Qualified Option Agreement
1. Grant Under 1997 Stock Plan
This Option Agreement is effective only when attached to a Notice of Grant
of Stock Options (the "Notice") signed on behalf of Concord
Communications, Inc. (the "Company") and by the option holder (the
"Employee"). The option granted under the Notice (the "Option") is granted
pursuant to and is governed by the Company's 1997 Stock Plan (the e Plan")
and , unless the context otherwise requires, terms used herein shall have
the same meaning as in the Plan. Determinations made in connection with
this Option pursuant to the Plan shall be governed by the Plan as it
exists on this date. In the event of any inconsistency or conflict between
this Agreement and the Plan, the terms of the Plan shall govern. This
option shall not be treated as an incentive stock option.
2. Other Options
This Option is in addition to any other Options heretofore or hereafter
granted to the Employee by the Company, but a duplicate original of this
instrument shall not effect the grant of another Option.
3. Extent of Option if Employment Continues
If the Employee continues to be employed by the Company on the date(s)
described in the Notice, the Employee may exercise the Option for the
number of shares indicated. Shares which vest "quarterly" vest in equal
installments as of the end of each three-month period during the interval
described in the Notice.
The foregoing rights are cumulative and, while the Employee continues to
be employed by the Company, may be exercised up to and including the time
of Expiration set forth in the Notice. All of the foregoing rights are
subject to Sections 4 and 5 of this Agreement, as appropriate, if the
Employee ceases to be employed by the Company or becomes disabled or dies
while in the employ of the Company.
In the event that the Company becomes a party to a merger, consolidation,
reorganization or similar corporate transaction in which the Company is
not, in effect, the acquiring corporation, or which is not solely a
consolidation with the Company's parent, or shall determine to liquidate
or dissolve, the Company agrees to so advise the Employee in writing, and
upon the giving of such notice, the "Full Vest" date(s) set forth in the
Notice
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shall be reduced by eighteen (18) months, but in no event to a date
earlier than the date of grant of the Option.
4. Termination of Employment
If the Employee ceases to be employed by the Company other than by reason
of death or disability, the Option shall terminate after the passage of
sixty (60) days from the date employment ceases, but in no event later
than the scheduled expiration date. In such a case, the Employee's only
rights hereunder shall be those which are properly exercised before the
termination of the Option.
5. Death or Disability
If the Employee dies while in the employ of the Company, the Option may be
exercised, to the extent of the number of shares with respect to which the
Employee could have exercised it on the date of his death, by his estate,
personal representative, or beneficiary to whom the Option has been
assigned pursuant to Section 9, at any time within 180 days after the date
of death, but not later than the scheduled expiration date. If the
Employee ceases to be employed by the Company by reason of his disability
(as defined in the Plan), the Option may be exercised to the extent of the
number of shares with respect to which he could have exercised it on the
date of the termination of his employment, at any time within 180 days
after such termination, but not later than the scheduled expiration date.
At the expiration of such 180 day period or the scheduled expiration date,
whichever is the earlier, the Option shall terminate and the only rights
hereunder shall be those as to which the Option was properly exercised
before such termination.
6. Partial Exercise
Exercise of the Option up to the extent stated in the Notice of Grant may
be made in part at any time and from time to time within the above limits,
except that the Option may not be exercised for a fraction of a share.
7. Agreement to Purchase for Investment
By acceptance of the Option, the Employee agrees that a purchase of shares
under the Option will not be made with a view to their distribution, as
that term is used in the Securities Act of 1933, as amended, unless in the
opinion of counsel to the Company such distribution is in compliance with
or exempt from the registration and prospectus requirements of the Act,
and the Employee agrees if requested to sign a certificate to such effect
at the time of exercising the Option and agrees that the certificate for
the shares so purchased may be inscribed with a legend to ensure
compliance with the Act and with any applicable state securities laws.
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8. Method of Exercising Option
(a) Subject to the terms and conditions of this Agreement, the
Option may be exercised by written notice to the Company, at the principal
executive office of the Company, or to such transfer agent as the Company
shall designate. Such notice shall state the election to exercise the
Option and the number of shares in respect of which it is being exercised
and shall be signed by the person or persons so exercising the Option.
Such notice shall be accompanied by payment of the full purchase price of
such shares, and the Company shall deliver a certificate or certificates
representing such shares as soon as practicable after the notice and
payment have been received.
(b) The Option price shall be paid in cash or by check or, with the
consent of the Committee in its sole discretion, in the following manner:
(i) subject to Section 8(c) below, by delivery of shares of
the Company's Common Stock having a fair market value
(as determined by the Committee) equal as of the date of
exercise to the option price;
(ii) by delivery of the Employee's personal recourse note
bearing interest payable not less than annually at the
rate set forth in the Plan; or
(iii) by any combination of the foregoing.
(c) If the Employee delivers Common Stock held by the Employee ("Old
Stock") to the Company in full or partial payment of the option price, and
the Old Stock so delivered is subject to restrictions or limitations
imposed by agreement between the Employee and the Company, an equivalent
number of option shares shall be subject to all restrictions and
limitations applicable to the Old Stock to the extent that the Employee
paid for the option shares by delivery of Old Stock, in addition to any
restrictions or limitations imposed by this Agreement. Notwithstanding the
foregoing, the Employee may not pay any part of the exercise price hereof
by transferring Common Stock to the Company unless such Common Stock has
been owned by the Employee free of any substantial risk of forfeiture for
at least six months.
(d) The certificate or certificates for the shares as to which the
Option shall have been so exercised shall be registered in the name of the
person or persons so exercising the Option (or, if the Option shall be
exercised by the Employee and if the Employee shall so request in the
notice exercising the Option, shall be registered in the name of the
Employee and another person jointly, with right of survivorship) and shall
be delivered as provided above to or upon the written order of the person
or persons exercising the Option. In the event the Option shall be
exercised, pursuant to Section 5 hereof, by any person or persons other
than the Employee, such notice shall be
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accompanied by appropriate proof of the right of such person or persons to
exercise the Option. All shares that shall be purchased upon the exercise
of the Option as provided herein shall be fully paid and nonassessable.
9. Option Not Transferable
The Option is not transferable or assignable except by will or by the laws
of descent and distribution. During the Employee's lifetime, only the
Employee can exercise the Option.
10. No Obligation to Exercise Option
The grant and acceptance of the Option imposes no obligation on the
Employee to exercise it.
11. No Obligation to Continue Employment
The Company is not by the Plan or the Option obligated to continue the
Employee in employment.
12. No Rights as Stockholder Until Exercise
The Employee shall have no rights as a stockholder with respect to shares
subject to the Option until a stock certificate therefor has been issued
to the Employee and is fully paid for. Except as expressly provided in the
Plan with respect to certain changes in the capitalization of the Company,
no adjustment shall be made for dividends or similar rights for which the
record date is prior to the date such stock certificate is issued.
13. Withholding Taxes
If the Company in its discretion determines that it is obligated to
withhold any tax in connection with the exercise of this option, or in
connection with the transfer of, or the lapse of restrictions on, any
Common Stock or other property acquired pursuant to the Option, the
Employee hereby agrees that the Company may withhold from the Employee's
wages or other remuneration the appropriate amount of tax. At the
discretion of the Company, the amount required to be withheld may be
withheld in cash from such wages or other remuneration or in kind from the
Common Stock or other property otherwise deliverable to the Employee on
exercise of the Option. The Employee further agrees that, if the Company
does not withhold an amount from the Employee's wages or other
remuneration sufficient to satisfy the withholding obligation of the
Company, the Employee will make reimbursement on demand, in cash, for the
amount underwithheld.
14. Arbitration
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Any dispute, controversy, or claim arising out of, in connection with, or
relating to the performance of this Agreement or its termination shall be
settled by arbitration in the Commonwealth of Massachusetts, pursuant to
the rules then obtaining of the American Arbitration Association. Any
award shall be final, binding and conclusive upon the parties and a
judgment rendered thereon may be entered in any court having jurisdiction
thereof.
15. Provision of Documentation to Employee
By signing the Notice the Employee acknowledges receipt of a copy of this
Agreement and a copy of the Plan.
16. Miscellaneous
(a) Notices. All communications hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth in the Notice.
The addresses for such communications may be changed from time to time by
written notice given in the manner provided for herein.
(b) Entire Agreement; Modification. The Notice and this Agreement
constitute the entire agreement between the parties relative to the
subject matter hereof, and supersede all proposals, written or oral, and
all other communications between the parties relating to the subject
matter of this Agreement. This Agreement may be modified, amended or
rescinded only by a written agreement executed by both parties.
(c) Severability. The invalidity, illegality or unenforceability of
any provision of the Notice or this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
(d) Successors and Assigns. The Notice and this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the limitations set forth in
Section 9 hereof.
(e) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of The Commonwealth of
Massachusetts.
