Exhibit 99.(d)(5)
XXXXXX.XXX, INC.
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1997 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
TO: _________________
Pursuant to your acceptance of the Offer to Exchange Outstanding Options
extended to you by Xxxxxx.xxx, Inc. (the "Company") on January 31, 2001, you
have been granted a stock option (the "Option") to purchase shares (the "Option
Shares") of the Company's Common Stock under its 1997 Stock Incentive Plan (the
"Plan").
The terms of the Option are as set forth in this Agreement and in the Plan.
The Plan is incorporated by reference into this Agreement, which means that,
except as set forth below, this Agreement is limited by and subject to the
express terms and provisions of the Plan. Capitalized terms that are not
defined in this Agreement have the meanings given to them in the Plan. The most
important terms of the Option are summarized as follows:
1. Grant Date: February 14, 2001
2. Number of Shares: /1/
3. Exercise Price: $/2/ per share
4. Expiration Date: 11:59 p.m., Pacific Daylight Savings Time, on
September 30, 2003
5. Type of Option: Nonqualified stock option ("NSO")
6. Vesting and Exercisability: The Option will vest and become
exercisable according to the following schedule, subject to
Optionee's continuous employment or service:
Vest Date Percent of Total Option That is
Vested and Exercisable
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August 14, 2001 1/4th (25%)
The 14th day of each calendar month An additional 1/24th (4.166%)
thereafter
February 14, 2003 100%
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/1/ As per Table 3 of each accepting employee's Election Form.
/2/ Lowest closing price for Xxxxxx.xxx common stock as reported by the Nasdaq
National Market for the period from January 1, 2001 through and including
February 14, 2001, but not less than 85% of the closing price on February
14, 2001.
7. Termination of Option: The unvested portion of the Option will
terminate automatically and without further notice immediately upon termination
(voluntary or involuntary) of your employment or service relationship with the
Company. The vested portion of the Option will terminate automatically and
without further notice in accordance with the terms of the Plan. It is your
responsibility to be aware of the date your Option terminates.
8. Method of Exercise: You may exercise the Option by giving notice to
the Company, in form and substance satisfactory to the Company, which will
indicate your election to exercise the Option and the number of shares of Common
Stock for which you are exercising the Option. Such notice must be accompanied
by full payment of the exercise price for the number of shares of Common Stock
you are purchasing.
9. Form of Payment: You may pay the Option exercise price, in whole or
in part, in cash, by check or, unless the Plan Administrator determines
otherwise, by (a) tendering shares of Common Stock held by you for a period of
at least six months having a fair market value on the day prior to the date of
exercise equal to the exercise price (you should consult your tax advisor before
exercising the Option with stock you received upon the exercise of an incentive
stock option); (b) delivery of a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds necessary to pay the exercise price; or (c) such
other consideration as the Plan Administrator may permit.
10. Withholding Taxes: As a condition to the exercise of the Option, you
must make such arrangements as the Company may require for the satisfaction of
the minimum federal, state or local withholding tax obligations that may arise
in connection with such exercise. The Company has the right to retain without
notice sufficient shares of stock to satisfy the minimum withholding obligation.
Unless the Plan Administrator determines otherwise, you may satisfy the
withholding obligation by electing to have the Company withhold from the shares
to be issued upon exercise that number of shares having a fair market value
equal to the amount required to be withheld.
11. Limited Transferability: During your lifetime only you can exercise
the Option. The option is not transferable except by will or by the applicable
laws of descent and distribution. The Plan provides for exercise of the Option
by the personal representative of your estate or the beneficiary thereof
following your death.
12. Registration: At the present time, the Company has an effective
registration statement with respect to the Option Shares. The Company intends
to maintain this registration but has no obligation to do so. In the event that
such registration is no longer effective, you will not be able to exercise the
Option unless exemptions from registration under federal and state securities
laws are available; such exemptions from registration are very limited and might
be unavailable. By accepting the Option, you hereby acknowledge that you have
read and understand Section 16.3 of the Plan.
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13. Binding Effect: This Agreement will inure to the benefit of the
successors and assigns of the Company and be binding upon you and your heirs,
executors, administrators, successors and assigns.
14. Limitation on Rights; No Right to Future Grants; Extraordinary Item of
Compensation: By entering into this Agreement and accepting the Option, you
acknowledge: (a) that the Plan is discretionary and may be suspended or
terminated by the Company at any time; (b) that the grant of the Option is a
one-time benefit and does not create any contractual or other right to receive
future grants of options or benefits in lieu of options; (c) that all
determinations with respect to any such future grants, including, but not
limited to, the times when options will be granted, the number of shares subject
to each option, the option price, and the time or times when each option will be
exercisable, will be at the sole discretion of the Company; (d) that your
participation in the Plan is voluntary; (e) that the value of the Option is an
extraordinary item of compensation which is outside the scope of your employment
contract, if any; (f) that the Option is not part of normal or expected
compensation for purposes of calculating any severance, resignation, redundancy,
end of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments; (g) that the vesting of the Option ceases upon
termination of your employment or service relationship with the Company for any
reason except as may otherwise be explicitly provided in the Plan or this
Agreement; (h) that the future value of the Option Shares is unknown and cannot
be predicted with certainty; and (i) that if the Option Shares do not increase
in value, the Option will have no value.
Please execute the following Acceptance and Acknowledgment and return it to
the undersigned.
Very truly yours,
XXXXXX.XXX, INC.
By
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Its
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ACCEPTANCE AND ACKNOWLEDGMENT
I, a resident of the State of ______________, accept the nonqualified stock
option described in this Agreement and in the Plan, and acknowledge receipt of a
copy of this Agreement, the Plan Summary and a copy of the Plan. I have read
and understand the Plan.
Dated:
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Name
Address
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Taxpayer I.D. Number
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RIDERS FOR NON-US EMPLOYEES
15. Employee Data Privacy: By entering this Agreement, you (a) authorize
the Company and your employer, and any agent of the Company administering the
Plan or providing Plan recordkeeping services, to disclose to the Company or any
of its affiliates any information and data the Company requests in order to
facilitate the grant of the Option and the administration of the Plan; (b) waive
any data privacy rights you may have with respect to such information; and (c)
authorize the Company and its agents to store and transmit such information in
electronic form.
16. Reduction in Hours: To the extent required by local law, the
reduction in your regular hours of employment to less than 30 hours per week
will not be deemed a "termination of your employment or service relationship".
ADDITIONAL RIDER TO BE INCLUDED FOR UK EMPLOYEES
17. UK NICs ELECTION. If you are a U.K. Resident/Ordinarily Resident,
this Option is subject to your execution of a Joint Election to Transfer the
Employer's National Insurance Liability in the form provided to you by your
employer.
ADDITIONAL RIDER TO BE INCLUDED FOR JAPAN EMPLOYEES
18. TAXATION OF GAIN. You agree to treat any gain you realize upon the
exercise of this stock option as employment income, to report such gain
accordingly on your annual personal income tax return and to pay the appropriate
income tax thereon.
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