STOCK OPTION AGREEMENT
Exhibit 10.29
DIRECTOR FORM
THIS STOCK OPTION AGREEMENT (this “Agreement”) is made and entered into as of
, between Xxxxxxxx.xxx Inc., a Delaware corporation (the “Company”),
and (“Director”).
The Company and Director desire to enter into this Agreement whereby the Company will grant
Director the options specified herein to acquire certain shares of the Company’s Common Stock.
Defined terms used in this Agreement without definition will have the meanings ascribed thereto in
the Company’s 2008 Stock Purchase and Option Plan (the “Plan”), a copy of which is attached
hereto as Exhibit A. In the event a provision of this Agreement is inconsistent or
conflicts with the provisions of the Plan, the provisions of the Plan will govern and prevail.
The parties hereto agree as follows:
1. Plan Acknowledgment. Each of the undersigned agree that this Agreement has been
executed and delivered, and the stock options have been granted hereunder, in connection with and
as a part of the compensation and incentive arrangements between the Company and Director and,
except as otherwise specified herein, pursuant to each of the terms and conditions of the Plan.
2. Option.
(a) Option Grant. The Company hereby grants to Director, pursuant to the Plan, an
option (the “Option”) to purchase up to shares of Common Stock, at an
exercise price per share of $ (the “Option Price”). The Option Price and the
number of Option Shares issuable upon exercise of the Option will be equitably adjusted for any
share split, share dividend, reclassification or recapitalization of the Common Stock which occurs
subsequent to the date of this Agreement. The Option will expire on the close of business on the
tenth anniversary of the date of this Agreement, subject to earlier expiration in connection with
the termination of Director’s employment with the Company or any of its Subsidiaries, as provided
in Section 2(c) below.
(b) Exercisability. On each date set forth below, the Option described in Section
2(a) above will have vested and become exercisable with respect to the cumulative percentage of
Option Shares set forth in the following paragraph if Director is, and has continuously been,
employed by the Company or any of its Subsidiaries from the date of this Agreement through such
date. For purpose of this Agreement, “Vesting Commencement Date” means .
Twenty-five percent (25%) of the Option Shares shall vest on the first anniversary of the Vesting
Commencement Date and 1/48th of the Option Shares shall vest each month thereafter on
the same day of the month as the Vesting Commencement Date; provided that unless terminated
earlier, all Option Shares will vest and become exercisable upon the occurrence of a Change of
Control.
When used in this subsection (b), “Change in Control” means any of the following:
(1) An acquisition by any person (excluding one or more of the Company, any Affiliate of the
Company, or an employee benefit plan of the Company (collectively, “Excluded Persons”)) of
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or a
pecuniary interest in (either comprising “ownership of”) more than 50% of the Common Stock
or voting securities entitled to then vote generally in the election of directors of the
Company (“Voting Stock”), after giving effect to any new issue in the case of an acquisition
from the Company; or
(2) Consummation of a merger, consolidation, or reorganization of the Company or of a sale
or other disposition of all or substantially all of the Company’s consolidated assets as an
entirety (collectively, a “Business Combination”), other than a Business Combination (A) in
which all or substantially all of the holders of Voting Stock hold or receive directly or
indirectly 50% or more of the voting stock of the entity resulting from the Business
Combination (or a parent company), and (B) after which no person (other than any one or more
of the Excluded Persons) owns more than 50% of the voting stock of the resulting entity (or
a parent company) who did not own directly or indirectly at least that amount of Voting
Stock immediately before the Business Combination, and (C) after which one or more Excluded
Persons own an aggregate number of shares of the voting stock at least equal to the
aggregate number of shares of voting stock owned by any other person who is not an Excluded
Person (except for any person described in and satisfying the conditions of Rule 13d-1(b)(1)
under the Exchange Act), if any, and who owns more than 50% of the voting stock; or
(3) During any period of two consecutive years, individuals who at the beginning of such
period constituted the Company’s board of directors and any new director (other than a
director designated by a person who has entered into an agreement or arrangement with the
Company to effect a transaction described in the previous two paragraphs of this definition)
whose appointment, election, or nomination for election was approved by a vote of at least
two thirds (2/3) of the directors then still in office who either were directors at the
beginning of the period or whose appointment, election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the Company’s board
of directors; or
(4) The complete liquidation or dissolution of the Company.
(c) Early Expiration of Option. Notwithstanding any provision herein to the contrary,
any portion of the Option granted hereunder that has not vested and become exercisable prior to the
Employment Termination Date will expire on the Employment Termination Date and may not be exercised
under any circumstance. Any portion of the Option granted hereunder which has vested and become
exercisable prior to the Employment Termination Date will expire on the earlier to occur of (i)
ninety (90) days after the Employment Termination Date and (ii) the close of business on the tenth
anniversary of the date of this Agreement.
(d) Procedure for Exercise. At any time after all or any portion of the Options
granted hereunder have become exercisable with respect to any Option Shares and prior to the close
of business on the tenth anniversary of the date of this Agreement, Director may exercise all or
any portion of the Option granted hereunder with respect to Option Shares vested pursuant
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to Section 2(b) above by delivering written notice of exercise to the Company,
together with (i) a written acknowledgment that Director has read and has been afforded an
opportunity to ask questions of management of the Company regarding all financial and other
information provided to Director regarding the Company and its Subsidiaries, (ii) payment in full
by delivery of a cashier’s, personal or certified check or wire transfer of immediately available
funds to the Company in the amount equal to the number of Option Shares to be acquired multiplied
by the option exercise price, (iii) an executed consent from Director’s spouse (if any) in the form
of Exhibit 1 attached to the Plan and (iv) executed joinders to that certain Stockholders
Agreement, dated as of December 5, 2007, by and among the Company and its stockholders and that
certain Registration Rights Agreement, dated as of December 5, 2007, by and among the Company and
its stockholders. As a condition to any exercise of the Option, Director will permit the Company
to deliver to him or her all financial and other information regarding the Company and its
Subsidiaries which it believes is necessary to enable Director to make an informed investment
decision. If, at any time subsequent to the date Director exercises any portion of the Option
granted hereunder and prior to the occurrence of a Termination Event, Director becomes legally
married (whether in the first instance or to a different spouse), Director shall cause Director’s
spouse to execute and deliver to the Company a consent in the form of Exhibit 1 attached to
the Plan. Director’s failure to deliver the Company an executed consent in the form of Exhibit
1 to the Plan at any time when Director would otherwise be required to deliver such consent
shall constitute Director’s continuing representation and warranty that Director is not legally
married as of such date.
(e) Securities Laws Restrictions. Director represents that when Director exercises
any portion of the Option he or she will be purchasing the Option Shares represented thereby for
Director’s own account and not on behalf of others. Director understands and acknowledges that
federal, state and foreign securities laws govern and restrict Director’s right to offer, sell or
otherwise dispose of any Option Shares unless Director’s offer, sale or other disposition thereof
is registered under the Securities Act and federal, state and foreign securities laws or, in the
opinion of the Company’s counsel, such offer, sale or other disposition is exempt from registration
thereunder. Director agrees that he or she will not offer, sell or otherwise dispose of any Option
Shares in any manner which would: (i) require the Company to file any registration statement (or
similar filing under applicable securities law) with the Securities and Exchange Commission or to
amend or supplement any such filing or (ii) violate or cause the Company to violate the Securities
Act, the rules and regulations promulgated thereunder or any other applicable securities law.
Director further understands that the certificates for any Option Shares which Director purchases
will bear the legend set forth in the Plan or such other legends as the Company deems necessary or
desirable in connection with the Securities Act or other rules, regulations or laws.
(f) Limited Transferability of the Option. The Option granted hereunder is personal
to Director and is not transferable by Director except pursuant to the laws of descent or
distribution and pursuant to the Plan. Only Director or his or her legal guardian or
representative may exercise the Option granted hereunder.
(g) Section 83(b) Election. Within thirty (30) days after Director has exercised any
portion of the Option, in the event Director is subject to United States federal income tax,
Director may make an effective election with the Internal Revenue Service under Section 83(b)
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of the Code relative to the Option Shares received by Director pursuant to the exercise of
such portion of the Option.
3. Director’s Representations. Director hereby represents and warrants to the Company
as follows:
(a) the execution, delivery and performance of this Agreement by Director does not and will
not conflict with, breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which Director is a party or by which he or she is bound;
(b) except as disclosed to the Company in writing, Director is not a party to or bound by any
employment agreement, non-compete agreement or confidentiality agreement with any other person or
entity (other than the Company or any of its Affiliates);
(c) upon the execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Director, enforceable in accordance with its terms; and
(d) Director has consulted with (or has had an opportunity to consult with) independent legal
counsel regarding his or her rights and obligations under this Agreement (including, without
limitation, the Plan) and that he or she fully understands the terms and conditions contained
herein and therein.
4. Notices. Any notices required or permitted under this Agreement or the Plan will be
delivered in accordance with the requirements of the Plan.
5. Third Party Beneficiaries; Successors and Assigns. The parties hereto acknowledge
and agree that the Investors are third party beneficiaries of this Agreement and the Plan. Except
as otherwise provided herein, this Agreement and the Plan shall bind and inure to the benefit of
and be enforceable by Director, the Company, the Investors and their respective heirs, successors
and assigns (including subsequent holders of Employee Shares); provided that the rights and
obligations of Director under this Agreement and the Plan shall not be assignable except in
connection with a permitted transfer of Employee Shares in accordance with the Plan.
6. Complete Agreement. This Agreement and the Plan and the other documents referred
to herein and therein embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in any way.
7. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
8. Counterparts. This Agreement may be executed in separate counterparts, each of
which may be delivered via facsimile and is deemed to be an original, and all of which taken
together constitute one and the same agreement.
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9. Governing Law. This Agreement will be subject to the Governing Law provisions of
the Plan as if fully set forth in this Agreement.
10. Remedies. Each of the parties to this Agreement will be entitled to any of the
remedies specified in the Plan.
11. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Board and Director, and no course of conduct or failure
or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
12. Tax Treatment. Neither party makes any representations or warranties to the other
party with respect to the tax treatment of the transactions contemplated hereby.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| XXXXXXXX.XXX INC. |
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| By: | ||||
| Xxxxxxx Xxxxxxxx | ||||
| President | ||||
| DIRECTOR: |
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EXHIBIT A
2008 Stock Purchase and Option Plan
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