EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.7
This Executive Employment Agreement, dated as of February 5, 2002, is between SciQuest, Inc., a
Delaware corporation and Xxxxxxx X. Xxxxx. As Xx. Xxxxx’x employment contract expires in February
2002 the Board of Directors desires to extend the agreement for his services.
This agreement extends the terms of the Executive Employment Agreement, dated as of February 5,
2001 (attached). All terms and conditions of the agreement(including stock options) shall remain in
effect until February 5, 2002 with the following provisions:
• | This agreement is effective February 5, 2002 | ||
• | Term of the agreement is 12 months | ||
• | Xx. Xxxxx will receive 12 months severance pay if he is terminated by the Board of Directors for any reason other than cause during the term of the agreement | ||
• | Medical coverage (through COBRA) will be covered for 18 months from date of termination if Xx. Xxxxx is terminated by the Board of Directors for any reason other than cause during the term of agreement | ||
• | Base salary will remain at $275,000 per year | ||
• | Xx. Xxxxx will be reimbursed for the cost of an automobile. Terms of the reimbursement to be worked out |
SCIQUEST, INC. |
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By: | /s/ XXXX XXXXXX | |||
XXXX XXXXXX | ||||
/s/ XXXXXXX X. XXXXX | ||||
XXXXXXX X. XXXXX | ||||
between
XXXXXXXX.XXX, INC.
and
XXXXXXX X. XXXXX
February 1, 2001
This Executive Employment Agreement (“Agreement”), dated as of February 5,2001, is between
XxxXxxxx.xxx, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxx (“Executive”). The
Company and Executive are collectively referred to in this Agreement as the “Parties.”
As used in this Agreement, the following terms shall have the meanings indicated:
1.1 “Cause” means any of the following:
(a) The continued failure of Executive to substantially or satisfactorily perform his duties
under this Agreement as determined by the good-faith judgment of the Company’s Board of Directors
(the “Board”),other than any such failure resulting from death or a Disability;
(b) The conviction of Executive based on, or Executive’s pleading nolo contendre to, an
allegation of, fraud, embezzlement, theft or another felony (excluding a traffic violation).
(c) Any willful and continued act or omission by Executive that, in the good-faith judgment of
the Board, is demonstrably and materially injurious to the Company’s business or reputation.
(d) A willful and continued breach of any of the material terms of this Agreement, and/or any
attachments.
No act or omission under any of subsections (a), (c) and (d) of this Paragraph 1.1 shall constitute
“Cause” (and will not be considered “willful and continued”) unless such act or omission continues
after the Board (i) provides Executive written notice describing the particular act(s) or
omission(s) which the Board believes in good faith to constitute Cause, (ii) provides Executive an
opportunity, as soon as reasonably possible, but in no event greater than thirty (30) days
following that notice, to meet in person with the Board to explain or
defend the alleged act(s) or omission(s) and, to the extent practicable, to cure such act(s) or
omission(s), and (iii) following the expiration of such notice and cure period, determines that
such act(s) or omission(s) have not been cured. Except with respect to any material breach of the
Employee Noncompetition,Nondisclosure and Developments Agreement attached hereto as Exhibit A,
Executive
shall further have the right to contest an allegation of Cause by requesting arbitration of that
issue in accordance with Section 8. No act or omission shall be considered “willful” if Executive
believed in good faith and based upon reasonable business judgment that such acts or omissions were
in the best interests of the Company.
1.2 “Disability” means a permanent and total disability, which shall be deemed to exist (i) if
Executive is unable reasonably to perform his duties under this Agreement because of any medically
determinable physical or mental incapacity that has lasted or can reasonably be expected to last
for at least one hundred eighty (180) consecutive days and (ii) a qualified independent physician
selected by or acceptable to the Chairman of the Board (the “Chairman”) and Executive (or his legal
representative) confirms such disability. If Executive (or his legal representative) and the
Company cannot
agree as to a qualified independent physician, each shall appoint such a
physician, and those two physicians shall select a third. The determination of
Disability by such third physician, made in writing to the Company and
Executive, shall be final and conclusive for all purposes of this Agreement. In this circumstance,
Executive shall, if there is any question about his Disability, submit to a physical examination by
such third physician. All costs of the physician(s) shall be borne by the Company.
1.3 “Good Reason” means any of the following:
(a) Executive is not elected or appointed to, or is removed from, the position of either
President, Chief Executive Officer or a member of the Board for any reason, other than for Cause or
by reason of Executive’s death or Disability; or
(b) Executive is assigned duties and responsibilities that are inconsistent, in any material
respect, with the scope of duties and responsibilities associated with Executive’s position of
President and Chief Executive Officer of the Company; or
(c) the Company fails to timely pay Executive any amounts otherwise vested and due hereunder,
including any bonus, and such failure continues for ten (10) business days following written notice
of nonpayment to the Company;
(d) the Company takes any action which would adversely affect
Executive’s participation in, or materially reduce Executive’s benefits under any Benefit
Plans (as defined in Paragraph 3.3); or
(e) the Company fails to provide Executive with the number of paid vacation days or the other
perquisites to which Executive is entitled under Section 3.
Except as expressly provided in Paragraph 1.3(c), nothing described above in this Paragraph 1.3
shall constitute “Good Reason” unless Executive (i) provides the Board written notice of the
occurrence of any act(s) or omissions(s) described above that may constitute Good Reason describing
the particular act(s) or omission(s) which Executive believes in good faith to constitute Good
Reason, (ii) provides the Board an opportunity, within thirty (30) days following delivery of that
notice, for the Board to explain or defend the alleged act(s)
or omission(s) and to cure such act(s) or omission(s), and (iii) following the expiration of such
notice and cure period, determines that such act(s) or omission(s) have not been cured. The Company
shall have the right to contest an allegation of Good Reason by requesting arbitration of that
issue in accordance with Section 8.
1.4 “Change of Control” means a change of control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) whether or not the Company in fact
is required to comply with Regulation 14A. Notwithstanding the foregoing, a Change of Control shall
be deemed to have occurred if:
(a) any “person” (as used in Section 13(d) of the Exchange Act)becomes the “beneficial owner”
(as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of equity
securities of the Company representing fifty and one-tenth percent (50.1%) or more of the combined
voting power of the Company’s then outstanding equity securities; or
(b) the Company shall reorganize or merge with or consolidate into any other entity, other
than a reorganization, merger, or consolidation which would result in the holders of the voting
securities of the Company outstanding immediately prior thereto holding immediately thereafter
securities representing less than fifty percent (50.0%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after such
reorganization, merger, or consolidation; or
(c) the shareholders of the Company approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition of all or substantially all of the Company’s assets.
For purposes of the definition of “Change of Control,” a person has “control” over another person
if that first person has the power, directly or indirectly, to direct the management and policies
of that other person.
1.5 “Successor” means any person who or which acquired all or substantially all of the assets
or business or all or substantially all of the equity securities of the Company, whether by
purchase,
reorganization, merger, consolidation, or otherwise, in a transaction or series of transactions
constituting or causing a Change of Control.
1.6 “Term” means the term of this Agreement, and includes both the initial Term and any
extended Term, as set forth in Section 4.
1.7 “Termination Date” means (i) the date the Term expires and one or both of the Parties have
elected not to extend the Term, in accordance with Paragraph 4.2; (ii) the date of Executive’s
death, (iii) the third business day after the date on which the Company gives notice of termination
of Executive’s employment because of Disability, or (iv) the date of termination specified in any
other Notice of Termination (as defined in Paragraph 5.9) of Executive’s employment, or if not
specified in the Notice of Termination, the date that Notice of
Termination is given.
such time shall become vested and immediately exercisable upon the occurrence of the Triggering
Event.
The term of Executive’s employment under this Agreement (the “Term”) shall be as follows:
(a) Any Base Salary earned by, but not yet paid to, Executive through the Termination Date;
(b) Any Annual Bonus (as described in Paragraph 3.2) that has been earned by, but not yet been
paid to, Executive through the Termination Date, unless Executive terminates this Agreement without
Good Reason;
(c) All benefits, or (at the Company’s option) the cash equivalent of all benefits, that have
been earned by or vested in, and are payable to, Executive under, and subject to the terms
(including all eligibility requirements) of, the Benefit Plans in which Executive participated
through the Termination Date;
(d) All reimbursable expenses due, but not yet paid, to Executive as of the Termination Date
under Paragraph 3.6; and
(e) An amount equal to Executive’s accrued and unused vacation in accordance with Company
policy.
Any amounts due under this Paragraph 5.2 shall be paid in the same manner and on the same date(s)
as would have occurred if Executive’s employment under this Agreement had not ceased. The amounts
or benefits due under subparagraph (c) of this Paragraph 5.2 shall be paid or provided in
accordance with the terms of the Benefit Plans under which such amounts or benefits are due to
Executive. The amounts due under subparagraphs (d) and (e) of this Paragraph 5.2, if any, shall be
paid in accordance with the terms of the Company’s policies, practices, and procedures regarding
reimbursable expenses and accrued and unused vacation, respectively. Except as expressly provided
in the following provisions of this Section 5, upon paying or providing Executive the preceding
amounts or benefits, the Company shall have no further obligation or liability under this Agreement
for Base Salary, Annual Bonus or any other cash compensation or for any benefits under any of the
Benefit Plans. Upon the occurrence of a Termination Date, and without any written resignation,
Executive shall be deemed to have resigned from any position as an officer or director, or both, of
any subsidiary, division, or affiliate of the Company or any other entity in which the Company
holds an equity interest or which it sponsors that Executive then holds.
Payment”) upon the Executive’s release of the Company in a form acceptable to the Company (the
“Release”):
(a) an amount equal to one-half of the Base Salary, as in effect on the Termination Date
(i.e., six (6) month’s salary);
(b) the insurance required by Paragraph 5.7;
(c) the amount incurred by Executive for all reasonable legal fees and expenses as a result of
such termination incurred in successfully seeking to obtain or enforce any right or benefit
provided by this Agreement or the Stock Option Agreement.
The portion of the Severance Payment described in subparagraph (a) above shall be paid in a
lump-sum payment. The Severance Payment shall be in addition to the amounts or benefits to which
Executive is entitled under Paragraph 5.2 and any rights Executive may have under the Benefit
Plans. The Company will promptly make the Severance Payment within ten business days after
Executive’s execution of the Release.
setting forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated.
Executive acknowledges and agrees that he is bound by the terms of the Company’s standard
Employee Noncompetition, Nondisclosure and Developments Agreement attached hereto as Exhibit A.
Employee further represents and warrants that his performance of all the terms of this Agreement
and including any attachments does not and will not breach any agreement with any third parties to
keep in confidence proprietary information or to restrain from competitive activities.
The Parties intend all provisions of this Agreement and any attachments hereto to be enforced
to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction
determine that the scope of any provision of this Agreement and any attachments hereto is too broad
to be enforced as written, the Parties intend that the court reform the provision to such narrower
scope as it determines to be reasonable and enforceable. In addition, however, Executive agrees
that each of the covenants set forth in Exhibit A constitutes a separate agreement independently
supported by good and adequate consideration, shall be severable from the other provisions of this
Agreement, and (with this Section 7) shall survive the occurrence of a Termination Date. If any
provision of this Agreement, including any attachments hereto, is held to be illegal, invalid, or
unenforceable under present or future laws, (i) such provision shall be fully severable, (ii) this
Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision
never constituted a part of this Agreement, and (iii) the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added as part of this Agreement a provision as
similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable.
8.1 Arbitration. Except with respect to any claim or dispute arising out of the restrictive
covenants set forth in Exhibit A, the exclusive remedy or method of resolving all disputes or
questions arising out of or relating to this Agreement or the expiration or termination of
Executive’s employment hereunder shall be arbitration held in Raleigh, North Carolina. The Company
expressly reserves the right to resolve any claim or dispute arising out of the covenants set forth
in Exhibit A in a court of competent jurisdiction, including the right to seek and obtain
injunctive relief. Any arbitration may be requested or initiated by a Party by written notice to
the other Party specifying the subject of requested arbitration and appointing the notifying
party’s arbitrator (“Arbitration Notice”). The prevailing Party in any such arbitration shall also
be entitled to an award of
reasonable attorneys’ fees and expenses incurred in connection with any such arbitration.
8.2 Arbitrators. Arbitration shall be before three arbitrators, one to be appointed by the
Company, a second to be appointed by Executive, and a third to be appointed by the two arbitrators
chosen by the Company and Executive. All such arbitrators shall be selected from a list of
potential arbitrators provided by the American Arbitration Association. The third arbitrator shall
act as chairman. If either Party fails to appoint an arbitrator by written notice to the other
Party within ten days after the Arbitration Notice is given or the two arbitrators appointed by the
Parties fail to appoint a third arbitrator within ten (10) days after the date of the appointment
of the second arbitrator, then the American Arbitration Association in Raleigh, North Carolina,
upon application of a Party shall appoint an arbitrator to fill that position.
If to the Company:
|
XxxXxxxx.xxx, Inc. | |
0000 XxXxxxxxx Xxxxxxx | ||
Xxxxx 000 | ||
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000 | ||
Attention: Chairman | ||
Copy to:
|
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP | |
0000 Xxxx Xxxxx Xxxxx, Xxxxx | ||
Xxxxxxx, XX 00000 | ||
Attention: Xxxxx X. Xxxxxxx, Esq. | ||
If to Executive:
|
Xx. Xxxxxxx X. Xxxxx | |
11216 Brass Xxxxxx Xxxx | ||
Xxxxxxx, Xxxxx Xxxxxxxx 00000 | ||
Copy to:
|
Xxxxx Xxxxx Mulliss & Xxxxx, LLP | |
0000 Xxx Xxxxxxxx Xxxxxx |
Xxxxxxx, Xxxxx Xxxxxxxx 00000 | ||
Attn: Xxxxx X. Xxxxxxxx, Esq. |
Notices delivered personally or by overnight express delivery service or by local courier service
shall be deemed given and received as of actual receipt. Notices mailed as described above shall
be deemed given and received three business days after mailing or upon actual receipt, whichever is
earlier.
9.4 Governing Law and Venue. This Agreement and the obligations and undertakings of the
Parties under this Agreement are performable in Morrisville, North Carolina. This Agreement and all
matters related hereto shall be governed by, and construed in accordance with, the laws of the
State of North Carolina, without reference to conflict of law principles.
XXXXXXXX.XXX, INC. |
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By: | /s/ M. Xxxxx Xxxxxxx | |||
M. Xxxxx Xxxxxxx | ||||
Chairman of the Board | ||||
/s/ Xxxxxxx X. Xxxxx | ||||
XXXXXXX X. XXXXX | ||||
EXHIBIT A
Employee Noncompetition, Nondisclosure and Developments Agreement
THIS AGREEMENT (the “Agreement”) is made and entered into this day of 2001, by
and between XxxXxxxx.xxx, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxx (“you”
or the “Employee”) in connection with the Employment Agreement of even date herewith.
will execute and deliver all documents and do all other acts that are or may be necessary to
document such transfer or to enable the Company to file and prosecute applications for and to
acquire, maintain, extend and enforce any and all patent, trademark or copyrights registrations
under United States or foreign law with respect to any such developments. If, for any reason, the
Company is unable to obtain your signature to apply for or to pursue any application for any United
States or foreign patent, trademark or copyright covering the Developments assigned to the Company
hereunder, you hereby irrevocably designate and appoint the Company and its agents and officers as
your agents and attorneys-in-fact, to act for you and in your behalf and stead to execute and file
any such applications and to do other lawfully permitted acts to further the prosecution and
issuance of U.S. and foreign patents, trademarks and copyrights with the same legal force and
effect as if executed by you. You further represent that your performance of all the terms of this
Agreement and work for the Company does not and will not breach any agreement to keep in confidence
proprietary information acquired by you in confidence or in trust. You have not entered into, and
agree that you will not enter into, any agreement in conflict herewith.
5. Survival; Binding Effect. Your obligations under this Agreement shall survive your
termination of employment, regardless of the manner of such termination, and shall be binding upon
your heirs, executors, administrators and legal representatives.
7. Miscellaneous. This Agreement shall be governed by and construed in accordance with the
laws of the State of North Carolina, without regard to conflicts of law provisions thereof. This
Agreement may be executed in counterparts. This Agreement may be amended only in a writing signed
by each of the parties hereto. This Agreement, as it may be amended pursuant to the terms hereof,
represents the complete and final agreement of the parties and shall control over any other
statement, representation or agreement by the Company(for example, such as may appear in employment
or policy manuals). This Agreement
supersedes any prior negotiations or discussions between the parties with regard to the subject
matter hereof.
COMPANY: | EMPLOYEE: | |||||||||
XXXXXXXX.XXX, INC. | Xxxxxxx X. Xxxxx | |||||||||
By: |
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Title:
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EXHIBIT B
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.
XXXXXXXX.XXX, INC. INCENTIVE STOCK OPTION AGREEMENT
XxxXxxxx.xxx, Inc. (the “Company”) granted to the individual named below an option to purchase
certain shares of common stock of the Company pursuant to the XxxXxxxx.xxx, Inc. 1999 Stock
Incentive Plan, in the manner and subject to the provisions of this Option Agreement.
(a) “Code” shall mean the Internal Revenue Code of 1986, as amended. (All citations to
sections of the Code are to such sections as they may from time to time be amended or renumbered.)
(b) “Company” shall mean XxxXxxxx.xxx, Inc., a Delaware corporation, and any successor
corporation thereto.
(c) “Date of Option Grant” shall mean , , 2001.
(d) “Disability” shall mean disability within the meaning of section 22(e)(3) of the Code, as
determined by the Board in its discretion under procedures established by the Board.
(e) “Exercise Price” shall mean ($ )per share as adjusted from time to
time pursuant to paragraph 9 below.
(f) “Number of Option Shares” shall mean Nine Hundred Thousand (900,000)shares of common
stock of the Company (the “Common Stock”) as adjusted from time to time pursuant to paragraph 9
below.
(g) “Option Term Date” shall mean the date ten (10) years after the Date of Option Grant.
(i) “Participating Company” shall mean (i) the Company and (ii) any present or future parent
and/or subsidiary corporation of the Company while such corporation is a parent or subsidiary of
the Company. For purposes of this Option Agreement, a parent corporation and a subsidiary
corporation shall be as defined in sections 424(e) and 424(f) of the Code.
(j) “Participating Company Group” shall mean at any point in time all corporations
collectively which are then a Participating Company.
(k) “Plan” shall mean the XxxXxxxx.xxx, Inc. 1999 Stock Incentive Plan.
Other capitalized terms used herein and without definition shall have the meanings ascribed to
such terms in the Plan.
2. Status of the Option. This Option is intended to be an incentive stock option as described in
Section 422 of the Code, but the Company does not represent or warrant that this Option qualifies
as such. The Optionee should consult with the Optionee’s own tax advisors regarding the tax effects
of this Option and the requirements necessary to obtain favorable income tax treatment under
Section 422 of the Code, including, but not limited to, holding period requirements.
(i) On or after August 11, 2001, (the “Initial Vesting Date”), the Option may be exercised to
purchase up to twelve and one half percent (12.5%) of the number of Option Shares.
(ii) On or after the last day of each successive full month beginning on or after the Initial
Vesting Date, the Option may be exercised to purchase up to an additional 1/48th of the Number of
Option Shares. This provision shall be interpreted such that on or after the fourth annual
anniversary date of the Initial Vesting Date, the Option may be exercised to purchase up to 100% of
the Number of Option Shares.
The schedule set forth above is cumulative, such that shares as to which the Option has become
exercisable on and after a date indicated by the schedule may be purchased pursuant to exercise of
the Option at any subsequent date prior to termination of the Option pursuant to paragraph 6
hereof.
Notwithstanding the foregoing, if the aggregate fair market value, determined as of the Date
of Option Grant, of the stock with respect to which the Optionee may exercise incentive stock
options for the first time during any calendar year (under this Plan or under any other plan of the
Participating Company Group), as determined in accordance with Section 422(d) of the Code, shall
exceed one hundred thousand dollars ($100,000), the Option shall be deemed a nonqualified stock
option to the extent of such excess.
(c) Form of Payment of Option Price. Such payment may be made (i) in cash or by check, (ii)
in the Board’s discretion, by delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price,
or delivery by the Optionee to the Company of a copy of irrevocable and unconditional instructions
to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the
exercise price, (iii) in the Board’s discretion, by delivery of shares
of Common Stock owned by the Optionee valued at their Fair Market Value, as determined by the Board
of Directors (the “Fair Market Value”), which shares have been owned by the Optionee for a period
of at least one (1) year prior to such delivery, (iv) in the Board’s discretion and to the extent
permitted by law, by delivery of a promissory note of the Optionee to the Company secured by
valuable collateral acceptable to the Board and on other terms acceptable to the Board, or (v) by
payment of such other lawful consideration as the Board may determine in its discretion.
(f) Restrictions on Grant of the Option and Issuance of Shares. The grant of the Option and
the issuance of the shares upon exercise of the Option shall be subject to compliance with all
applicable requirements of federal or state law with respect to such securities. The Option may not
be exercised if the issuance of shares upon such exercise would constitute a violation of any
applicable federal or state securities laws or other law or regulations. In addition, no Option may
be exercised unless (i) a registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), shall at the time of exercise of the Option be in effect with respect to the
shares issuable upon exercise of the Option or (ii) in the opinion of legal counsel to the Company,
the shares issuable upon exercise of the Option may be issued in accordance with the terms of an
applicable exemption from the registration requirements of the Securities Act.
THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISABLE UNLESS THE FOREGOING
CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN
DESIRED EVEN THOUGH THE OPTION IS VESTED.
As a condition to the exercise of the Option, the Company may require the Optionee to satisfy
any qualifications that may be necessary or appropriate, to evidence compliance with any applicable
law or regulation and to make any representation or warranty with respect thereto as may be
requested by the Company.
manner, either voluntarily or by operation of law, except by will or by the laws of descent and
distribution.
notified by the Company that the Option is exercisable, but in any event no later than the Option
Term Date.
(d) Optionee Subject to Section 16(b). Notwithstanding the foregoing, if the exercise of the
Option within the applicable time periods set forth above would subject the Optionee to suit under
Section 16(b) of the Exchange Act, the Option shall remain exercisable until the earliest to occur
of (i) the tenth (10th) day following the date on which the Optionee would no longer be subject to
such suit, (ii) the one hundred and ninetieth (190th) day after the Optionee’s termination of
employment, or (iii) the Option Term Date.
(e) Leave of Absence. For purposes hereof, the Optionee’s employment with the Participating
Company Group shall not be deemed to terminate if the Optionee takes any military leave, sick
leave, or other bona fide leave of absence approved by the Company of ninety (90) days or less. In
the event of a leave in excess of ninety (90) days, the Optionee’s employment shall be deemed to
terminate on the ninety-first (91st) day of the leave unless the Optionee’s right to reemployment
with the Participating Company Group remains guaranteed by statute or contract.
As used in this Section 8, an “Acquisition Event” shall mean: (a) any merger or consolidation
which results in the voting securities of the Company outstanding immediately prior thereto
representing (either by remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than 50% of the combined voting power of the voting securities
of the Company or such surviving or acquiring entity outstanding immediately after such merger or
consolidation; (b) any sale of all or substantially all of the assets of the Company; (c) the
complete liquidation of the Company; or (d) the acquisition of “beneficial ownership” (as defined
in Rule 13d-3 under the Exchange Act) of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding securities (other than through a merger or
consolidation or an acquisition of securities directly from the Company) by any “person,” as such
term is used in Section 13(d) and 14(d) of the Exchange Act, other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of the Company or any
corporation owned directly or indirectly by the stockholders of the Company.
the provisions of this Option Agreement. The Optionee shall, at the request of the Company,
promptly present to the Company any and all certificates representing shares acquired pursuant to
the Option in the possession of the Optionee in order to effectuate the provisions of this
paragraph. Unless otherwise specified by the Company, legends placed on such certificates may
include (as applicable), but shall not be limited to, the following:
THE REGISTERED HOLDER OF THE SHARES REPRESENTED BY THIS CERTIFICATE, AT THE TIME OF ISSUANCE
HEREOF, MAY BE DEEMED AN AFFILIATE OF THE ISSUER UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE CORPORATION TO THE REGISTERED HOLDER UPON
EXERCISE OF AN INCENTIVE STOCK OPTION AS DEFINED IN SECTION 422 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED. THE TRANSFER AGENT FOR THE SHARES EVIDENCED HEREBY SHALL NOTIFY THE CORPORATION
IMMEDIATELY OF ANY TRANSFER OF THE SHARES BY THE REGISTERED HOLDER HEREOF MADE ON OR BEFORE THE
REGISTERED HOLDER SHALL HOLD ALL SHARES PURCHASED UNDER THE OPTION IN THE REGISTERED HOLDER’S NAME
(AND NOT IN THE NAME OF ANY NOMINEE) FOR A PERIOD OF ONE YEAR FROM THE DATE OF EXERCISE OF THE
OPTION OR TWO YEARS FROM THE DATE OF GRANT OF THE OPTION.
Agreement shall survive any exercise of the Option and shall remain in full force and effect.
XXXXXXXX.XXX, INC. |
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By: | ||||
Title: | ||||
The Optionee represents that the Optionee is familiar with the terms and provisions of this Option
Agreement, and hereby accepts the Option subject to all of the terms and provisions thereof. The
Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations
of the Board of Directors of the Company made in good faith upon any questions arising under this
Option Agreement.
The undersigned hereby acknowledges receipt of a copy of the Plan.
Date: |
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Xxxxxxx Xxxxx | |||||||||
Date:
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Name: | ||||||||