Exhibit 10.12
HOUSTONSTREET EXCHANGE, INC.
Incentive Stock Option Agreement
Granted Under 1999 Stock Incentive Plan
1. Grant of Option.
This agreement evidences the grant by HoustonStreet
Exchange, Inc., a Delaware corporation, (the "Company"), on
December 10, 2004 (the "Grant Date") to Xxxxx X. Xxxxxx Xx., an
employee of the Company (the "Participant"), of an option to
purchase, in whole or in part, on the terms provided herein and
in the Company's 1999 Stock Incentive Plan (the "Plan"), an
aggregate of twenty-five thousand (25,000) shares (the "Shares")
of common stock, $0.01 par value per share, of the Company
("Common Stock"), as follows: seven thousand five hundred (7,500)
Shares exercisable at six dollars and forty-seven cents ($6.47)
per Share (the "$6.47 Options"), seven thousand five hundred
(7,500) Shares exercisable at twelve dollars and ninety-five
cents ($12.95) per Share (the "$12.95 Options"), and ten thousand
(10,000) Shares exercisable at twenty-five dollars and eighty-
nine cents ($25.89) per Share (the "$25.89 Options")
(collectively, the "Options"). Unless earlier terminated, this
option shall expire on December 10, 2014 (the "Final Exercise
Date").
The grant by the Company to the Participant of the right to
receive payment of an amount equal to ten percent (10%) of net
sales proceeds upon sale of the Company, which grant was approved
by the Board of Directors on August 28, 2003 and is due to expire
in March 2005, is hereby deemed terminated effective as of the
Grant Date and of no further force and effect.
It is intended that the option evidenced by this agreement
shall be an incentive stock option as defined in Section 422 of
the Internal Revenue Code of 1986, as amended and any regulations
promulgated thereunder (the "Code"). Except as otherwise
indicated by the context, the term "Participant", as used in this
option, shall be deemed to include any person who acquires the
right to exercise this option validly under its terms.
2. Vesting Schedule.
The Options will become exercisable in accordance with the
following schedule, such that all Options will have become
exercisable on or before December 10, 2007:
$6.47 $12.95 $25.89
Option Option Option
On the Grant Date: 208.3333 208.3333 277.7777
On the 10th day of each month
following the Grant Date for
thirty-five consecutive months: 208.3333 208.3333 277.7777
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The right of exercise shall be cumulative so that to the
extent the option is not exercised in any period to the maximum
extent permissible it shall continue to be exercisable, in whole
or in part, with respect to all shares for which it is vested
until the earlier of the Final Exercise Date or the termination
of this option under Section 3 hereof or the Plan.
3. Exercise of Option
(a) Form of Exercise. Each election to exercise this option
shall be in writing, signed by the Participant, and received by
the Company at its principal office, accompanied by this
agreement, and payment in full in the manner provided in the
Plan, including to the extent permitted by the Board in its sole
discretion, by (i) delivery of a promissory note of the
Participant to the Company on terms determined by the Board
(including whether the Participant must pay cash in an amount
equal to the par value of any Common Stock issued) or
(ii) payment of such other lawful consideration as the Board may
determine. The Participant may purchase less than the number of
shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten
whole shares.
(b) Continuous Relationship with the Company Required. Except
as otherwise provided in this Section 3, this option may not be
exercised unless the Participant, at the time he exercises this
option, is, and has been at all times since the Grant Date, an
employee, officer or director of, or consultant or advisor to,
the Company or any parent or subsidiary of the Company as defined
in Section 424(e) or (f) of the Code (an "Eligible Participant").
(c) Termination of Relationship with the Company. If the
Participant ceases to be an Eligible Participant for any reason,
then, except as provided in paragraphs (d) and (e) below, the
right to exercise this option shall terminate three months after
such cessation (but in no event after the Final Exercise Date),
provided that this option shall be exercisable only to the extent
that the Participant was entitled to exercise this option on the
date of such cessation. Notwithstanding the foregoing, if the
Participant, prior to the Final Exercise Date, violates the non-
competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure agreement or other
agreement between the Participant and the Company, the right to
exercise this option shall terminate immediately upon written
notice to the Participant from the Company describing such
violation.
(d) Exercise Period Upon Death or Disability. If the
Participant dies or becomes disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date
while he or she is an Eligible Participant and the Company has
not terminated such relationship for "cause" as specified in
paragraph (e) below, this option shall be exercisable, within the
period of one year following the date of death or disability of
the Participant by the Participant, provided that this option
shall be exercisable only to the extent that this option was
exercisable by the Participant on the date of his death or
disability, and further provided that this option shall not be
exercisable after the Final Exercise Date.
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(e) Discharge for Cause. If the Participant, prior to the Final
Exercise Date, is discharged by the Company for "cause" (as
defined below), the right to exercise this option shall terminate
immediately upon the effective date of such discharge. "Cause",
for purposes of this Section, shall mean willful misconduct by
the Participant or willful failure by the Participant to perform
his responsibilities to the Company (including, without
limitation, breach by the Participant of any provision of any
employment, consulting, advisory, nondisclosure, non-competition
or other similar agreement between the Participant and the
Company), as determined by the Company, which determination shall
be conclusive. The Participant shall be considered to have been
discharged for "Cause" if the Company determines, within 30 days
after the Participant's resignation, that discharge for cause was
warranted.
4. Change in Control.
(a) Notwithstanding any other provision of the Plan, in the
event of a Change in Control of the Company, all of the Options
then outstanding shall become fully vested and immediately
exercisable in full, and any restrictions on exercising
outstanding Options shall terminate. For purposes of this
agreement, a "Change in Control of the Company" shall mean the
acquisition of substantially all of the assets of the Company,
merger, consolidation, acquisition, or similar acquisition, by a
person other than one of the Company's affiliates (including
BayCorp Holdings, Ltd. or one of its affiliates), resulting in a
change of ownership or voting power, directly or indirectly, of
at least fifty percent (50%) of the outstanding voting securities
of the Company.
(b) In no event, however, shall a Change in Control be
deemed to occur in connection with any public offering of the
Company's securities pursuant to the Securities Act.
5. Agreement in Connection with Public Offering.
The Participant agrees, in connection with the initial
underwritten public offering of the Company's securities pursuant
to a registration statement under the Securities Act, (i) not to
sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares of Common Stock
held by the Participant (other than those shares included in the
offering) without the prior written consent of the Company or the
underwriters managing such initial underwritten public offering
of the Company's securities for such period following the
effective date of such registration statement as required by the
underwriters, and (ii) to execute any agreement reflecting clause
(i) above as may be requested by the Company or the managing
underwriters at the time of such offering.
6. Withholding.
No Shares will be issued pursuant to the exercise of this
option unless and until the Participant pays to the Company, or
makes provision satisfactory to the Company for payment of, any
federal, state or local withholding taxes required by law to be
withheld in respect of this option.
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7. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged
or otherwise encumbered by the Participant, either voluntarily or
by operation of law, except by will or the laws of descent and
distribution, and, during the lifetime of the Participant, this
option shall be exercisable only by the Participant.
8. Disqualifying Disposition.
If the Participant disposes of Shares acquired upon exercise
of this option within two years from the Grant Date or one year
after such Shares were acquired pursuant to exercise of this
option, the Participant shall notify the Company in writing of
such disposition.
9. Provisions of the Plan.
This option is subject to the provisions of the Plan, a copy
of which is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be
executed under its corporate seal by its duly authorized officer.
This option shall take effect as a sealed instrument.
HoustonStreet Exchange, Inc.
Dated: December 10, 2004 By: /s/ Xxxxxxx X. Latina
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Xxxxxxx X. Latina, Director
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PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and
agrees to the terms and conditions thereof. The undersigned
hereby acknowledges receipt of a copy of the Company's 1999 Stock
Incentive Plan.
PARTICIPANT:
/s/ Xxxxx X. Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
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