EXHIBIT 10.65
UNITED SHIPPING & TECHNOLOGY, INC.
NON-STATUTORY
STOCK OPTION AGREEMENT
THIS non-statutory STOCK OPTION AGREEMENT (the "Agreement") is made
effective as of the 2nd day of June, 2000, by and between United Shipping &
Technology, Inc., a Utah corporation (the "Company"), and _____________ (the
"Optionee"). This Agreement is specifically intended to be "outside" the
Company's 2000 Stock Option Plan (the "Plan"). However, for purposes of
convenience only, unless otherwise defined herein, the terms defined in the Plan
shall have the same defined meanings herein.
WITNESSETH:
WHEREAS, as an incentive to the Optionee and in exchange for Optionee's
covenants as set forth herein, which the Optionee acknowledges are for the
benefit of the Company, the Company desires to make grant certain non-statutory
options outside the Plan to the Optionee;
NOW THEREFORE, in consideration of the foregoing recitals, which are
made a part hereof, and the mutual covenants hereinafter set forth, the parties
hereto agree as follows:
1. Grant of Option. Subject to the terms and conditions of this
Agreement and the definitions set forth in the Plan, which are used herein for
convenience only, the Company hereby grants to the Optionee an option (the
"Option") to purchase a total of 250,000 shares of Common Stock (the "Shares"),
at the price determined as provided herein.
2. Nature of the Option. This Option is not intended to qualify as an
Incentive Stock Option as defined in Section 422 of the Code.
3. Exercise Price. The exercise price for each share of Common Stock is
$10.875 (the "Exercise Price") representing the fair market value per share of
the Common Stock on the date of grant.
4. Exercise of Option. This Option shall be exercisable during its term
in accordance with the following provisions and the other terms and conditions
of this Agreement:
(i) Right to Exercise.
(a) Subject to the other terms hereof regarding the
exercisability of this Option, this Option shall be
exercisable cumulatively to the extent it is vested pursuant
to the vesting schedule as more completely described in
Exhibit A attached hereto and incorporated herein by
reference.
(b) This Option may not be exercised for a fraction
of a Share, and must be exercised for no fewer than one
hundred (100) Shares, or such lesser number of Shares as may
be vested.
(c) In the event of Optionee's death or disability,
the exercisability of the Option is governed by Sections 7, 8,
9 and 10 below, subject to the restrictions and limitations
contained in this Agreement.
(d) In no event may this Option be exercised after
the date of expiration of the term of this Option as set forth
in Section 12 below.
(ii) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being exercised,
and such other representations and agreements as to the holder's
investment intent with respect to such Shares of Common Stock as may be
required by the Company pursuant to the provisions of this Agreement.
Such written notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the Secretary of the
Company, or to such other person or firm as the Secretary shall
designate. The written notice shall be accompanied by payment of the
exercise price as set forth in Section 6 hereof. Until certificates for
the Shares are issued to the Optionee, such Optionee shall not have any
rights as a Shareholder of the Company.
No Shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
5. Optionee's Representations. In the event the Shares purchasable
pursuant to the exercise of this Option (the "Option Shares") have not been or
do not continue to be registered under the Securities Act of 1933, as amended,
as a condition to the exercise of this Option, Optionee shall, concurrently with
the exercise of all or any portion of this Option, deliver to the Company such
investment representations as the Company may require.
6. Method of Payment. Payment of the Exercise Price shall be by (i)
cash; (ii) check, bank draft or money order; (iii) if authorized by the Board of
Directors of the Company, by delivery of Common Stock of the Company (valued at
the fair market value thereof on the date of exercise) or (iv) by delivery of a
combination of cash and Common Stock. The Board of Directors may, in order to
prevent any possible violation of law, require the Exercise Price to be paid in
cash. In the event the Shares purchasable pursuant to the exercise of this
Option have been registered under the Securities Act of 1933, payment of the
Exercise Price may be made pursuant to a Broker Exercise Notice. For purposes of
this Section 6, a Broker Exercise Notice shall mean a written notice from the
Optionee to the Company's Corporate Secretary, made on a form and in a manner as
the Board of Directors may from time to time determine, pursuant to which the
Optionee irrevocably elects to exercise all or any portion of an Option and
irrevocably directs the Company to deliver the Common Stock certificates to be
issued to such Optionee upon such Option exercise directly to a "broker" or
"dealer" (within the meaning of Section 3(a) of the Exchange Act). A Broker
Exercise Notice must be accompanied by or contain irrevocable instructions to
the broker or dealer: (i) to promptly sell a sufficient number of shares of such
Common Stock or to loan the Optionee a sufficient amount of money to pay the
exercise price for the Options and to fund any related employment and
withholding tax obligations to which the Broker Exercise Notice relates; and
(ii) to promptly remit such sums to the Company upon the broker's or dealer's
receipt of the certificates.
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7. Compliance With Laws and Regulations. This 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, the requirements of
any stock exchange upon which the Shares may then be listed, and to such
approvals by any government or regulatory agency as may be required. In
addition, this Option shall not be exercisable, and the Company shall not be
required to issue or deliver any certificates for Shares prior to (i) the
listing of such Shares on Nasdaq or any stock exchange on which the Company's
Stock may then be listed, and (ii) the completion of any registration or
qualification of such Shares under any federal or state law, or any rule or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, this Option may
not be exercised if its exercise, or the issuance of Shares upon such exercise,
or the method of payment of consideration for such Shares would constitute a
violation of any applicable federal or state securities or other law or
regulation.
8. Disability of Optionee. In the event of the complete or partial
mental or physical disability of the Optionee such that the Optionee is unable
by himself to make decisions affecting his rights under this Agreement,
including but not limited to the exercise of the Option, the Option may be
exercised (but in no event later than the date of expiration of the term of this
Option as set forth in Section 12 below), by the authorized legal representative
or guardian of the Optionee, and if no such legal representative or guardian has
been appointed, then the Company may petition any Court of competent
jurisdiction to appoint such representative or guardian prior to Company being
required to take any action hereunder.
9. Death of Optionee. In the event of the death of Optionee during the
term of this Option, the Option may be exercised, at any time within three (3)
years following the date of death (but in no event later than the date of
expiration of the term of this Option as set forth in Section 12 below), by
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent Optionee was entitled to
exercise the Option at the date of death.
10. Cancellation of Option for Misconduct. Notwithstanding anything to
the contrary contained herein, whether expressed or implied, and whether or not
the Optionee's employment or other relationship with the Company is terminated,
in the event the Company determines that Optionee has committed an act of
embezzlement, fraud, dishonesty, nonpayment of an obligation owed to the
Company, breach of fiduciary duty or deliberate disregard of the Company's rules
resulting in loss, damage or injury to the Company, or if the Optionee makes an
unauthorized disclosure of any Company trade secret or confidential information,
engages in any conduct constituting unfair competition with respect to the
Company, breaches this Agreement, or induces any party to breach a contract with
the Company, then this Option shall be automatically cancelled and of no further
force or effect, subject to any full or partial waiver of such cancellation by
the Board of Directors.
11. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by him. The terms of
this Option shall be binding upon the Optionee and his or her personal
representatives, heirs, successors and assigns.
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12. Term of Option. This Option may not be exercised after June 2,
2010, and may be exercised only in accordance with the terms of this Option.
13. Acceleration of Vesting Upon Change in Control. In the event of a
Change in Control, as defined in Section 1.3 of the Plan, the provisions of
Section 4(i)(a) and Exhibit A hereof pertaining to vesting shall cease to apply
and this Option shall become immediately vested and fully exercisable with
respect to all Shares; provided, however, that the provisions of this Section 13
shall not apply unless the Optionee has been employed by the Company for a
period equal to or exceeding one calendar year. No acceleration of vesting shall
occur under this Section 13 in the event a surviving corporation or its parent
assumes this Option or in the event the surviving corporation or its parent
substitutes an option agreement with substantially the same terms as provided in
this Agreement. Notwithstanding that this Option is outside the Plan, Optionee
agrees that the Board of Directors shall have the authority to cancel this
Option in accordance with Section 9 of the Plan as though this Option were
granted pursuant to the Plan.
14. Early Disposition of Stock. Optionee understands that if he
disposes of any Shares received under this Option within two (2) years after the
date of this Agreement or within one (1) year after such Shares were transferred
to him, he may be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount generally measured
by the difference between the price paid for the Shares and the lower of the
fair market value of the Shares at the date of the exercise or the fair market
value of the Shares at the date of disposition. The amount of such ordinary
income may be measured differently if Optionee is an officer, director or 10%
shareholder of the Company, or if the Shares were subject to a substantial risk
of forfeiture at the time they were transferred to Optionee. OPTIONEE HEREBY
AGREES TO NOTIFY THE COMPANY IN WRITING WITHIN 30 DAYS AFTER THE DATE OF ANY
SUCH DISPOSITION.
15. Withholding Taxes. As a condition to the issuance of Shares of
Common Stock of the Company pursuant to the exercise of this Option, the
Optionee authorizes the Company or a Related Company to withhold in accordance
with applicable law from any regular cash compensation payable to him any taxes
required to be withheld by the Company or a Related Company under federal or
state law as a result of his exercise of this Option. To the extent that
Optionee's current compensation is insufficient to satisfy the withholding tax
liability, the Company will require the Optionee to make a cash payment to cover
such liability as a condition to exercise of this Option, or may deduct any such
taxes from any payment of any kind otherwise due to the Optionee.
16. Subject to Lock Up. The Optionee understands that the Company at a
future date may file a registration or offering statement (the "Registration
Statement") with the Securities and Exchange Commission to facilitate an
underwritten public offering of its securities. The Optionee agrees, for the
benefit of the Company, that should such an underwritten public offering be made
and should the managing underwriter of such offering require, the Optionee will
not, without the prior written consent of the Company and such underwriter,
during the Lock Up Period as defined herein: sell, transfer or otherwise dispose
of, or agree to sell, transfer or otherwise dispose of this Option or any of the
Shares acquired or to be acquired upon exercise of this Option during the Lock
Up Period; or sell or grant, or agree to sell or grant, options, rights or
warrants with respect to any of the Shares acquired or to be acquired upon
exercise of this Option. The foregoing does not prohibit gifts to donees or
transfers by will or the laws of descent to heirs or beneficiaries provided that
such donees, heirs and beneficiaries shall be bound
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by the restrictions set forth herein. The term "Lock Up Period" shall mean the
lesser of (x) 180 days or (y) the period during which Company officers and
directors are restricted by the managing underwriter from effecting any sales or
transfers of the Shares. The Lock Up Period shall commence on the effective date
of the Registration Statement.
17. Provisions for Registration. Despite anything in this Option to the
contrary, the Optionee shall have the following rights regarding registration of
Option Shares which have been acquired or may be hereafter acquired upon
exercise of this Option:
(i) Required Registration. If at any time the Company receives the
written request from a record holder of this Option or of Option Shares acquired
hereunder (a "Holder"), the Company shall prepare and file a registration
statement under the Securities Act covering the Option Shares which are the
subject of such requests and shall use its best efforts to cause such
registration statement to become effective provided, however, that all such
Option Shares to be so registered shall be converted into Common Stock prior to
sale pursuant to such registration statement. In addition, upon the receipt of
the aforementioned request, the Company shall promptly give written notice to
all other Holders that such registration is to be effected. The Company shall
include in such registration statement such Option Shares for which it has
received written requests to register by such other Holders within fifteen (15)
days after the Company's written notice to such other Holders. The Company shall
be obligated to prepare, file and cause to become effective only two (2)
registration statements pursuant to this Section 17(i). In the event that the
Holders of a majority of the Option Shares for which registration has been
requested pursuant to this Section determine for any reason not to proceed with
a registration at any time before the registration statement has been declared
effective by the Commission and such Holders thereafter request the Company to
withdraw such registration statement, or cancel their participation in same, and
if the Holders of such Option Shares agree to bear their own expenses incurred
in connection therewith and to reimburse the Company for the expenses incurred
by it attributable to such registration statement, then, and in such event, the
Holders of such Option Shares shall not be deemed to have exercised their right
to require the Company to register Option Shares pursuant to this Section 17(i).
(ii) Incidental Registration. Each time the Company shall determine to
proceed with the actual preparation and filing of a registration statement under
the Securities Act in connection with the proposed offer and sale for money of
any of its Common Stock by it or any of its security holders, the Company will
give written notice of its determination to all Holders hereunder. Upon the
written request of a Holder given within fifteen (15) days after receipt of any
such notice from the Company, the Company will, except as herein provided, cause
all such Option Shares, the record Holders of which have so requested
registration thereof, to be included in such registration statement, all to the
extent requisite to permit the sale or other disposition by the prospective
seller or sellers of the Option Shares to be so registered; provided, however,
that (a) all such Option Shares to be so registered shall be converted into
Common Stock prior to sale pursuant to such registration statement; (b) nothing
herein shall prevent the Company from, at any time, abandoning or delaying any
such registration initiated by it; and (c) if the Company determines not to
proceed with a registration after the registration statement has been filed with
the Commission and the Company's decision not to proceed is primarily based upon
the anticipated public offering price of the securities to be sold by the
Company, the Company shall promptly complete the registration for the benefit of
those selling security holders
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who wish to proceed with a public offering of their securities and who bear all
expenses in excess of $25,000 incurred by the Company as the result of such
registration after the Company has decided not to proceed. If any registration
pursuant to this Section shall be underwritten in whole or in part, the Company
may require that the Option Shares requested for inclusion pursuant to this
Section be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. If in the good faith
judgment of the managing underwriter of such public offering the inclusion of
all of the Option Shares originally covered by a request for registration would
reduce the number of shares to be offered by the Company or interfere with the
successful marketing of the shares of stock offered by the Company, the number
of Option Shares otherwise to be included in the underwritten public offering
may be reduced pro rata among the Holders thereof requesting such registration
to a number that the managing underwriter believes will not adversely affect the
sale of shares by the Company. Those securities which are thus excluded from the
underwritten public offering, and any other Common Stock owned by such Holders,
shall be withheld from the market by the Holders thereof for a period, not to
exceed one hundred eighty (180) days, which the managing underwriter reasonably
determines is necessary in order to effect the underwritten public offering.
(iii) Registration Procedures. If and whenever the Company is required
by the provisions of Sections 17(i) or 17(ii) to effect the registration of any
Option Shares under the Securities Act, the Company will:
(a) prepare and file with the Commission a registration
statement with respect to such Option Shares, and use its best efforts to cause
such registration statement to become and remain effective for such period as
may be reasonably necessary to effect the sale of such Option Shares, not to
exceed three (3) months;
(b) prepare and file with the Commission such amendments to
such registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective for such
period as may be reasonably necessary to effect the sale of such Option Shares,
not to exceed three (3) months;
(c) furnish to the Holders participating in such registration
and to the underwriters of the Option Shares being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such security Holders and underwriters
may reasonably request in order to facilitate the public offering of such Option
Shares;
(d) use its best efforts to register or qualify the Option
Shares covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such participating Holders may reasonably
request within ten (10) days following the original filing of such registration
statement, except that the Company shall not for any purpose be required to
execute a general consent to service of process or to qualify to do business as
a foreign corporation in any jurisdiction wherein it is not so qualified;
(e) notify the Holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed;
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(f) notify such Holders promptly of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon the
request of any such Holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holders (and
concurred in by counsel for the Company), is required under the Securities Act
or the rules and regulations thereunder in connection with the distribution of
the Option Shares by such Holder;
(h) prepare and promptly file with the Commission and promptly
notify such Holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
(i) advise such Holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued; and
(j) not file any amendment or supplement to such registration
statement or prospectus to which a majority in interest of such Holders shall
have reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the Securities Act
or the rules and regulations thereunder, after having been furnished with a copy
thereof at least five (5) business days prior to the filing thereof, unless in
the opinion of counsel for the Company the filing of such amendment or
supplement is reasonably necessary to protect the Company from any liabilities
under any applicable federal or state law and such filing will not violate
applicable law.
(iv) Expenses. With respect to any registration, requested pursuant to
Section 17(i) (except as otherwise provided in such section with respect to
registrations voluntarily terminated at the request of the requesting Holders)
and with respect to each inclusion of securities in a registration statement
pursuant to Section 17(ii) (except as otherwise provided in Section 17(ii) with
respect to registrations terminated by the Company), the Company shall bear the
following fees, costs and expenses: all registration, filing and NASD fees,
printing expenses, fees and disbursements of counsel and accountants for the
Company, fees and disbursements of counsel for the underwriter or underwriters
of such securities (if the Company and/or selling security Holders are required
to bear such fees and disbursements), all internal Company expenses, the
premiums and other costs of policies of insurance against liability arising out
of the public offering, and all legal fees and disbursements and other expenses
of complying with state securities or blue sky laws of any jurisdictions in
which the securities to be offered are to be registered or qualified. Fees and
disbursements of counsel and accountants for the selling
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Holders, underwriting discounts and commissions and transfer taxes for selling
Holders and any other expenses incurred by the selling Holders not expressly
included above shall be borne by the selling Holders.
(v) Copies of Prospectus; Amendments of Prospectus. The Company will
furnish the Holders with a reasonable number of copies of any prospectus or
offering circular and one copy of the registration statement included in such
filings and will amend or supplement the same as required during the nine (9)
month period following the effective date of the registration statement,
provided, that the expenses of any amendment or supplement made or filed more
than three (3) months after the effective date of the registration statement, at
the request of the Holder, shall be borne by the Holder.
(vi) Conditions of the Company's Obligations. It shall be a condition
of the Company's obligation to register the Option Shares hereunder that the
Holder agrees to cooperate with the Company in the preparation and filing of any
such registration statement, or in its efforts to establish that the proposed
sale is exempt under the Securities Act, as to any proposed distribution. It
shall also be a condition of the Company's obligations under this Agreement
that, in the case of the filing of any registration statement, and to the extent
permissible under the Securities Act, and controlling precedent thereunder, the
Company and the Holder provide cross-indemnification agreements to each other in
customary scope covering the accuracy and completeness of the information
furnished by each.
18. Notices. Any notice hereunder to the Company shall be addressed to
it at its principal executive offices, located at at 0000 00xx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Chief Executive Officer or
such other person specified herein; and any notice hereunder to the Optionee
shall be addressed to him at the address set forth below; subject to the right
of either party to designate at any time hereunder in writing some other
address.
19. Amendment, Modification or Waiver. No amendment, modification or
waiver of any condition, provision or term of this Agreement shall be valid or
of any effect unless made in writing, signed by the party or parties to be bound
or such party's duly authorized representative and specifying with particularity
and nature and extent of such amendment, modification or waiver. Any waiver by
any party of any default of another party shall not affect or impair any right
arising from any subsequent default. Nothing herein shall limit the remedies and
rights of the parties hereto under the pursuant to this Agreement.
20. Severability. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. Notwithstanding the foregoing, in the event
that any provision of this Agreement is unenforceable because it is overbroad,
then such provision shall be limited to the extent necessary to make it
enforceable under applicable law and enforced as so limited. Optionee
acknowledges the uncertainty of the law in this respect and expressly stipulates
that this Agreement be given the construction which renders its provisions valid
and enforceable to the maximum extent (not exceeding its express terms) possible
under applicable law.
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21. Entire Agreement; Survival of Provisions. This Agreement contains
the entire understanding of the parties in respect of the transactions
contemplated and supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
22. Counterparts. This Agreement may be executed in two counterparts
each of which shall constitute one and the same instrument.
DATE OF GRANT: June 2, 2000
UNITED SHIPPING & TECHNOLOGY, INC.
By:_______________________________
Xxxxx X. Xxxxx
Title: Chief Executive Officer and President
OPTIONEE ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN
THE COMPANY'S 2000 STOCK OPTION PLAN THE DEFINITIONS OF WHICH ARE INCORPORATED
HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO
CONTINUATION OF EMPLOYMENT BY THE COMPANY OR A RELATED COMPANY, NOR SHALL IT
INTERFERE IN ANY WAY WITH HIS RIGHT, OR THE RIGHT OF THE COMPANY OR A RELATED
COMPANY, TO TERMINATE HIS EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
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Optionee hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
Optionee:
--------------------------------
Dated: June 2, 2010
------------
Residence Address:
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EXHIBIT A
EMPLOYEE OPTION AND VESTING DATA
Name of Employee: _____________
Number of Shares Subject to Option: 250,000
Date of Grant: June 2, 2000
OPTION VESTING SCHEDULE
NO. OF SHARES
DATE EXERCISABLE
---- -----------
June 2, 2000 200,000
June 2, 2001 50,000
Your Option will vest (that is, it will become exercisable) as to a
portion of the shares on each of the vesting dates shown above. Your rights to
exercise the un-vested portion of your option will cease upon your death, except
as otherwise set forth in Sections 7 through 10 of this Stock Option Agreement.
