EXHIBIT 4.11
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CoolSavings, Inc.
2001 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
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CoolSavings, Inc. (f/k/a xxxxxxxxxxx.xxx, inc.), a Delaware
corporation (the "Company"), upon the recommendation of the Company's Board
of Directors (the "Board") and pursuant to that certain 2001 Stock Option
Plan adopted by the Company's Board of Directors, as amended (the "Plan"),
and in consideration of the services to be rendered to the Company or its
subsidiaries by ______________________ ("Employee"), hereby grants (subject
to Section XII below), as of ________ ___, 2001 (the "Date of Grant"),
Employee an option ("Option") to purchase ______ shares of the Company's
common stock, $0.01 par value per share (the "Shares") at a price of
$__________ per share (the "Option Price"), on the terms and conditions
contained in this Stock Option Agreement (the "Agreement") and subject to
all the terms and conditions of the Plan, which are incorporated by
reference herein. The Option is designated as both an Incentive Stock
Option and a Performance Based Option (as such terms are defined in the
Plan), and the Option Price specified above is equal to the Fair Market
Value of the Company's Common Stock on the Date of Grant.
I. EXERCISE OF OPTION
Employee may exercise this Option at any time on or after the first
date specified below, but in no event later than ___________ [insert 10th
anniversary of Date of Grant], subject only to prior termination or
modification of the Plan and in accordance with and subject to any
percentage limitations contained in this Section I and the expiration
provisions contained in Section III:
(a) One third (1/3) of the Shares, or any lesser part
thereof, on or after the date which is one (1) year from the Date of
Grant;
(b) One third (1/3) of the Shares, or any lesser part
thereof, on or after the date which is two (2) years from the Date of
Grant; and
(c) The final one third (1/3) of the Shares, or any lesser
part thereof, on or after the date which is three (3) years from the
Date of Grant.
Any Shares not purchased by Employee at the time Employee is first eligible
to exercise the Option for such Shares, as determined by this Section I,
may be purchased by Employee at any time thereafter but, in no event, later
than ___________ [insert 10th anniversary of Date of Grant].
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II. MANNER OF EXERCISE
This Option may be exercised, in accordance with Section I above, by
delivery (personally or by certified or registered mail in accordance with
Section VII below) of a written notice to the Company's Secretary
specifying the number of Shares to be purchased and accompanied by payment
for those Shares and any applicable withholding taxes. At the election of
Employee, such payment may be made in cash, check, or by delivery of
certificate(s) representing Shares of the Company's common stock previously
held by Employee, duly endorsed for transfer, or shares issuable to
Employee pursuant to the exercise of the Option. The Administrator may
also permit payment to be made in such other manner as the Administrator
deems appropriate and in compliance with applicable law. Any shares
delivered to the Company in payment of the aggregate amended Option Price
shall be valued at the Fair Market Value (as defined in the Plan) of the
Company's shares. Unless otherwise provided by the Administrator, if
Employee is, at the time of exercise, an Officer (as defined in the Plan),
the Company shall withhold the appropriate number of Shares, rounded up to
the next whole number, as are determined by the Administrator to have a
Fair Market Value equal to the amount required to satisfy applicable
withholding taxes. If Employee is not an Officer at the date of exercise,
he may elect to have Shares withheld or may deliver cash or a check to pay
the withholding taxes. The Option shall be exercised in accordance with
such administrative regulations as the Administrator of the Plan shall from
time to time adopt.
III. EXPIRATION
All unexercised rights under the Option shall expire on the date
specified in Section I above or on the date specified in this Section III
in the event that Employee's employment is terminated.
(a) Upon termination of Employee's employment with the
Company or a subsidiary due to Employee's death, the right to
exercise the Option shall be accelerated and shall accrue as of the
date of Employee's death, and may be exercised by Employee's
executor, administrator or the person to whom the rights under the
Option shall pass by Employee's will or by the laws of descent and
distribution, within one (1) year from the date of Employee's death.
(b) Upon the termination of Employee's employment with the
Company or its subsidiaries for "cause," as defined in the Plan, this
Option, to the extent not exercised, shall lapse and be of no further
force or effect whatsoever. Upon such lapse, Employee shall not be
entitled nor have the right to purchase any additional Shares under
the Plan or, to the extent not exercised before such termination,
pursuant to this Agreement.
(c) Upon cessation of Employee's employment for any reason
other than for death or for cause, this Option may be exercised, to
the extent it was otherwise exercisable on the date of cessation of
employment, within ninety (90) days of such cessation of employment.
In the event of Employee's death within the ninety day period
following termination of employment, the Option may be exercised by
his Beneficiary, to the extent it was otherwise exercisable, within
one (1) year of the date of Employee's death.
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IV. NON-ISSUANCE
The Company shall not be required to issue or deliver any Shares upon
Employee's exercise of the Option:
(a) Prior to the admission of such Shares to listing on any
public exchange on which the Company's common stock may be listed; or
(b) Prior to the completion of any proceedings under any
applicable state or federal securities law, rule or regulation that
the Company or its counsel determines to be necessary or advisable to
the issuance of the Shares; or
(c) Unless such issuance, in the opinion of the Company's
counsel, is exempt from federal and state securities registration
requirements.
The Company may require Employee to represent and agree in writing that if
such Shares are issuable under an exemption from registration requirements,
the Shares will be "restricted". Employee shall not have the rights of a
shareholder with respect to the Shares until certificates evidencing the
Shares have been issued and delivered to Employee. While the Company will
attempt to process the exercise of the Option as promptly as possible, it
cannot guarantee a delivery date for the certificates.
V. REORGANIZATION
If prior to the expiration of the Option, the Shares then subject to
the Option shall be affected by any recapitalization, merger,
consolidation, reorganization, stock dividend, stock split or other change
in capitalization affecting the common stock of the Company, the Company
will appropriately adjust the number and kind of Shares covered by the
Option and the Option Price per share as is necessary to prevent dilution
or the enlargement of rights which might otherwise result.
VI. HOLDING PERIOD
Employee hereby acknowledges that, although this Agreement may
provide for more liberal exercise periods, exercise of the Option more than
three months after termination of employment for any reason other than
disability, or exercise of the Option more than one year after termination
of employment in the case of disability, shall cause the Option to lose its
qualification as an Incentive Stock Option under the Code (as defined in
the Plan). Similarly, the sale, exchange or other disposition of any of
the Shares purchased pursuant to the Option at any time earlier than two
years from the Date of Grant or within one year after the Shares are
transferred to Employee pursuant to the exercise of the Option will result
in a "disqualifying disposition" under Code Section 422(a). A
disqualifying disposition will cause Employee to incur immediate income tax
liability upon the disposition of the Shares. Employee hereby covenants
and agrees to notify the Company of any such disqualifying disposition and
to pay the Company any applicable withholding taxes for which the Company
becomes liable as a result of such disqualifying disposition.
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VII. NOTICE
All notices given pursuant to or in connection with this Agreement
shall be in writing and shall be deemed to be duly given when personally
delivered or when mailed, if sent by certified or registered mail, postage
prepaid, return receipt requested, and addressed as follows, or to such
other address as the parties may indicate:
If to the Company: Coolsavings, Inc.
000 X. Xxxxxxxx Xxx.
19th Floor
Chicago, Illinois 60601
Attention: Controller
If to Employee:
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VIII. NO RIGHT TO EMPLOYMENT CONFERRED
Nothing in this Agreement or the Plan shall confer upon Employee any
right to continue in employment with the Company or a subsidiary or
interfere in any way with the right of the Company or any subsidiary to
terminate such person's employment at any time.
IX. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable,
the remaining provisions shall continue to be in full force and effect to
the maximum extent permitted by law. If the implementation or presence of
any provision of this Agreement would or will cause the Plan and thereby
the Shares purchased thereunder to not be in compliance with Rule 16b-3
under the Securities Exchange Act of 1934 or any other statutory provision,
such Agreement provision shall not be implemented or, at the Company's
option following notice, such provision shall be severed from the Agreement
as is appropriate or necessary to achieve statutory compliance; provided,
however, that the parties hereby agree to negotiate in good faith as may be
necessary to modify this Agreement to achieve statutory compliance or
otherwise effectuate the intent of the parties following a severance
permitted by this Section IX.
X. AMENDMENT
This instrument contains the entire Agreement of the parties and may
only be amended by written agreement executed by the parties hereto or
their respective successors, as permitted by the Plan. Notwithstanding the
foregoing, the Administrator may, in its discretion, amend this Agreement
without the consent of Employee in such a manner as it believes will
prevent the amended Option from resulting in "applicable employee
remuneration" within the meaning of Section 162(m) of the Code or
regulations thereunder.
XI. GOVERNING LAW
This Agreement is made and entered into and shall be construed and
enforced in accordance with the laws of the State of Delaware.
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XII. HEADINGS
The section numbers and headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
XIII. CONDITION TO AND ACCEPTANCE OF OPTION
The grant of the Option is conditioned upon receipt by the Company
within five days of the Date of Grant of a "Terms of Employment" agreement
executed by the Employee containing the standard Company non-compete, non-
disclosure and non-solicitation covenants. The exercise of the Option is
conditioned upon acceptance by Employee of the terms hereof as evidenced by
his or her execution of this Agreement and the return of an executed copy
to the Secretary of the Company no later than sixty days after the date set
forth in the following paragraph.
IN WITNESS WHEREOF, this Incentive Stock Option Agreement is hereby
executed effective as of _____________________.
COMPANY:
CoolSavings, Inc.,
a Delaware corporation
By:
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Chairman and
Chief Executive Officer
EMPLOYEE:
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