Exhibit 10.3
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE XXXXXXX HOLDINGS, INC.
2005 STOCK OPTION AND GRANT PLAN
NAME OF OPTIONEE: __________________ (the "Optionee")
NO. OF OPTION SHARES: __________________ Shares of Common Stock
GRANT DATE: __________________ (the "Grant Date")
EXPIRATION DATE: __________________ (the "Expiration Date")
OPTION EXERCISE PRICE/SHARE: __________________ (the "Option Exercise Price")
Pursuant to the Xxxxxxx Holdings, Inc. 2005 Stock Option and Grant Plan
(the "Plan"), Xxxxxxx Holdings, Inc., a Delaware corporation (together with all
successors thereto, the "Company"), hereby grants to the Optionee, who is a
Director of the Company, an option (the "Stock Option") to purchase on or prior
to the Expiration Date, or such earlier date as is specified herein, all or any
part of the number of shares of Common Stock, par value $0.01 per share ("Common
Stock"), of the Company indicated above (the "Option Shares," and such shares
once issued shall be referred to as the "Issued Shares"), at the Option Exercise
Price per share, subject to the terms and conditions set forth in this
Non-Qualified Stock Option Agreement (this "Agreement") and in the Plan. This
Stock Option is NOT intended to qualify as an "incentive stock option" as
defined in Section 422(b) of the Internal Revenue Code of 1986, as amended from
time to time (the "Code").
1. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the following respective meanings. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Plan.
An "AFFILIATE" of any Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with the first mentioned Person. A Person shall be deemed
to control another Person if such first Person possesses directly or indirectly
the power to direct, or cause the direction of, the management and policies of
the second Person, whether through the ownership of voting securities, by
contract or otherwise.
"BANKRUPTCY" shall mean (i) the filing of a voluntary petition under
any bankruptcy or insolvency law, or a petition for the appointment of a
receiver or the making of an assignment for the benefit of creditors, with
respect to the Optionee or any Permitted Transferee, or (ii) the Optionee or any
Permitted Transferee being subjected involuntarily to such a petition or
assignment or to an attachment or other legal or equitable interest with respect
to the Optionee's or such Permitted Transferee's assets, which involuntary
petition or assignment or attachment is not discharged within 60 days after its
date, and (iii) the Optionee or any Permitted Transferee being subject to a
transfer of the Stock Option or the Issued Shares by operation of law (including
by divorce, even if not insolvent), except by reason of death.
"PERMITTED TRANSFEREES" shall mean any of the following Persons to
whom the Optionee may transfer Issued Shares hereunder (as set forth in Section
8): the Optionee's spouse, children (natural or adopted), stepchildren or a
trust for their sole benefit of which the Optionee is the settlor; PROVIDED,
HOWEVER, that any such trust does not require or permit distribution of any
Issued Shares during the term of this Agreement unless subject to its terms.
Upon the death of the Optionee (or a Permitted Transferee to whom shares have
been transferred hereunder), the term Permitted Transferees shall also include
such deceased Optionee's (or such deceased Permitted Transferee's) estate,
executors, administrators, personal representatives, heirs, legatees and
distributees, as the case may be.
"PERSON" shall mean any individual, corporation, partnership (limited
or general), limited liability company, limited liability partnership,
association, trust, joint venture, unincorporated organization or any similar
entity.
"SALE EVENT" shall mean, regardless of form thereof, consummation of
(i) the dissolution or liquidation of the Company, (ii) the sale of all or
substantially all of the assets of the Company on a consolidated basis to an
unrelated person or entity, (iii) a merger, reorganization or consolidation in
which the outstanding shares of Stock are converted into or exchanged for
securities of the successor entity and the holders of the Company's outstanding
voting power immediately prior to such transaction do not own a majority of the
outstanding voting power of the successor entity immediately upon completion of
such transaction, (iv) the sale of all or a majority of the outstanding capital
stock of the Company to an unrelated person or entity or (v) any other
transaction in which the owners of the Company's outstanding voting power
immediately prior to such transaction do not own at least a majority of the
outstanding voting power of the successor entity immediately upon completion of
the transaction; provided, however, that the consummation of a public offering
of shares of capital stock by the Company shall in no event be deemed a Sale
Event.
"SUBSIDIARY" shall mean any corporation (other than the Company) in
any unbroken chain of corporations or other entities beginning with the Company
if each of the corporations or other entities (other than the last corporation
in the unbroken chain) owns stock or other interests possessing 50 percent or
more of the total combined voting power of all classes of stock or in one of the
other corporations in the chain.
2. VESTING, EXERCISABILITY AND TERMINATION.
(a) No portion of this Stock Option may be exercised until such
portion shall have vested.
(b) Except as set forth below and in Section 6, and subject to the
determination of the Committee in its sole discretion to accelerate the vesting
schedule hereunder, this Stock Option shall be vested and exercisable with
respect to the Option Shares on the respective dates indicated below:
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Incremental (Aggregate Number)
of Option Shares Exercisable Vesting Date
---------------------------- --------------------------
33% (33%) [1-year after grant date]
33% (66%) [2-years after grant date]
34% (100%) [3-years after grant date]
---------------
100% (100%)
Notwithstanding anything herein to the contrary, immediately prior to the
occurrence of a Sale Event, this Stock Option shall be deemed vested and
exercisable in full.
(c) TERMINATION. If the Optionee ceased to be a Director of the
Company, the period within which to exercise this Stock Option will be subject
to earlier termination as set forth below (and if not exercised within such
period, shall thereafter terminate):
(i) TERMINATION DUE TO DEATH. If the Optionee ceases to be a
Director by reason of the Optionee's death, this Stock Option shall become
immediately exercisable and may be exercised by the Optionee's legal
representative or legatee for a period of 12 months from the date of death.
(ii) OTHER TERMINATION. If the Optionee ceases to be a Director
for any reason other than death, this Stock Option may be exercised, to the
extent exercisable on the date of termination, for a period of 90 days from
the date of termination or until the Expiration Date, if earlier.
Any portion of the Stock Option that is not exercisable on the date the
Optionee ceases to be a Director shall terminate immediately and be null and
void.
3. EXERCISE OF STOCK OPTION.
(a) The Optionee may exercise this Stock Option only in the following
manner: Prior to the Expiration Date (subject to Section 6), the Optionee may
deliver a Stock Option exercise notice (an "Exercise Notice") in the form of
APPENDIX A hereto indicating his or her election to purchase some or all of the
Option Shares with respect to which this Stock Option is exercisable at the time
of such notice. Such notice shall specify the number of Option Shares to be
purchased. Payment of the purchase price may be made by one or more of the
methods described below. Payment instruments will be received subject to
collection.
(i) in cash, by certified or bank check, or other instrument
acceptable to the Committee in U.S. funds payable to the order of the
Company in an amount equal to the purchase price of such Option Shares; or
(ii) if the Company's Initial Public Offering has occurred, then
(A) through the delivery (or attestation to ownership) of shares of Common
Stock that have been purchased by the Optionee on the open market or that
have been held by the Optionee for at least six months and are not subject
to restrictions under any plan of the Company and in any event with an
aggregate Fair Market Value (as of the date of such exercise) equal to the
option purchase price, (B) by the Optionee delivering to the
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Company a properly executed Exercise Notice together with irrevocable
instructions to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the option purchase price,
provided that in the event the Optionee chooses to pay the option purchase
price as so provided, the Optionee and the broker shall comply with such
procedures and enter into such agreements of indemnity and other agreements
as the Committee shall prescribe as a condition of such payment procedure,
or (C) a combination of (i), (ii)(A) and (ii)(B) above.
(b) Certificates for the Option Shares so purchased will be issued
and delivered to the Optionee upon compliance to the satisfaction of the
Committee with all requirements under applicable laws or regulations in
connection with such issuance. Until the Optionee shall have complied with the
requirements hereof and of the Plan, the Company shall be under no obligation to
issue the Option Shares subject to this Stock Option, and the determination of
the Committee as to such compliance shall be final and binding on the Optionee.
The Optionee shall not be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any shares of Common Stock subject to this
Stock Option unless and until this Stock Option shall have been exercised
pursuant to the terms hereof, the Company shall have issued and delivered the
Issued Shares to the Optionee, and the Optionee's name shall have been entered
as a stockholder of record on the books of the Company. Thereupon, the Optionee
shall have full dividend and other ownership rights with respect to such Issued
Shares, subject to the terms of this Agreement.
(c) Notwithstanding any other provision hereof or of the Plan, no
portion of this Stock Option shall be exercisable after the Expiration Date.
4. INCORPORATION OF PLAN. Notwithstanding anything herein to the
contrary, this Stock Option shall be subject to and governed by all the terms
and conditions of the Plan.
5. TRANSFERABILITY OF STOCK OPTION. This Agreement is personal to the
Optionee and is not transferable by the Optionee in any manner other than by
will or by the laws of descent and distribution. The Stock Option may be
exercised during the Optionee's lifetime only by the Optionee (or by the
Optionee's guardian or personal representative in the event of the Optionee's
incapacity). The Optionee may elect to designate a beneficiary by providing
written notice of the name of such beneficiary to the Company, and may revoke or
change such designation at any time by filing written notice of revocation or
change with the Company; such beneficiary may exercise the Optionee's Stock
Option in the event of the Optionee's death to the extent provided herein. If
the Optionee does not designate a beneficiary, or if the designated beneficiary
predeceases the Optionee, the legal representative of the Optionee may exercise
this Stock Option to the extent provided herein in the event of the Optionee's
death.
6. EFFECT OF CERTAIN TRANSACTIONS. In the case of a Sale Event, this
Stock Option shall terminate upon the effective time of any such Sale Event
unless provision is made in connection with such transaction in the sole
discretion of the parties thereto for the continuation or assumption of this
Stock Option heretofore granted, or the substitution of this Stock Option with a
new Stock Option of the successor entity or a parent thereof, with such
adjustment as to the number and kind of shares and the per share exercise prices
as such parties shall agree. In the event of such termination, the Optionee
shall be permitted, for a specified period of time prior to
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the consummation of the Sale Event as determined by the Committee, to exercise
the Stock Option.
7. [INTENTIONALLY OMITTED]
8. RESTRICTIONS ON TRANSFER OF ISSUED SHARES. None of the Issued Shares
acquired upon exercise of the Stock Option shall be sold, assigned, transferred,
pledged, hypothecated, given away or in any other manner disposed of or
encumbered, whether voluntarily or by operation of law, unless such transfer is
in compliance with all applicable securities laws (including, without
limitation, the Securities Act of 1933, as amended, and the rules and
regulations thereunder (the "Act")), and such disposition is in accordance with
the terms and conditions of Sections 8 and 9 hereof and such disposition does
not cause the Company to become subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended. In connection with any transfer of
Issued Shares, the Company may require the transferor to provide at the
Optionee's own expense an opinion of counsel to the transferor, satisfactory to
the Company, that such transfer is in compliance with all foreign, federal and
state securities laws (including, without limitation, the Act). Any attempted
disposition of Issued Shares not in accordance with the terms and conditions of
Sections 8 and 9 hereof shall be null and void, and the Company shall not
reflect on its records any change in record ownership of any Issued Shares as a
result of any such disposition, shall otherwise refuse to recognize any such
disposition and shall not in any way give effect to any such disposition of any
Issued Shares. Subject to the foregoing general provisions, Issued Shares may be
transferred pursuant to the following specific terms and conditions:
(a) TRANSFERS TO PERMITTED TRANSFEREES. The Optionee may sell,
assign, transfer or give away any or all of the Issued Shares to Permitted
Transferees; PROVIDED, HOWEVER, that such Permitted Transferee(s) shall, as a
condition to any such transfer, agree to be subject to the provisions of this
Agreement to the same extent as the Optionee (including, without limitation, the
provisions of Sections 8, 9, 11 and 12) and shall have delivered a written
acknowledgment to that effect to the Company.
(b) TRANSFERS UPON DEATH. Upon the death of the Optionee, any Issued
Shares then held by the Optionee at the time of such death and any Issued Shares
acquired thereafter by the Optionee's legal representative pursuant to this
Agreement shall be subject to the provisions of Sections 8, 9, 11 and 12, if
applicable, and the Optionee's estate, executors, administrators, personal
representatives, heirs, legatees and distributees shall be obligated to convey
such Issued Shares to the Company or its assigns under the terms contemplated
hereby.
(c) COMPANY'S RIGHT OF FIRST REFUSAL. In the event that the Optionee
(or any Permitted Transferee holding Issued Shares subject to this Section 8(c))
desires to sell or otherwise transfer all or any part of the Issued Shares, the
Optionee (or Permitted Transferee) first shall give written notice to the
Company of the Optionee's (or Permitted Transferee's) intention to make such
transfer. Such notice shall state the number of Issued Shares which the Optionee
(or Permitted Transferee) proposes to sell (the "Offered Shares"), the price and
the terms at which the proposed sale is to be made and the name and address of
the proposed transferee. At any time within 30 days after the receipt of such
notice by the Company, the Company or its assigns may elect to purchase all or
any portion of the Offered Shares at the price
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and on the terms offered by the proposed transferee and specified in the notice.
The Company or its assigns shall exercise this right by mailing or delivering
written notice to the Optionee (or Permitted Transferee) within the foregoing
30-day period. If the Company or its assigns elect to exercise its purchase
rights under this Section 8(c), the closing for such purchase shall, in any
event, take place within 45 days after the receipt by the Company of the initial
notice from the Optionee (or Permitted Transferee). In the event that the
Company or its assigns do not elect to exercise such purchase right, or in the
event that the Company or its assigns do not pay the full purchase price within
such 45-day period, the Optionee (or Permitted Transferee) may, within 60 days
thereafter, sell the Offered Shares to the proposed transferee and at the same
price and on the same terms as specified in the Optionee's (or Permitted
Transferee's) notice. Any Shares purchased by such proposed transferee shall be
deemed held by a Permitted Transferee and accordingly shall remain subject to
the terms of this Agreement, including without limitation, the provisions of
Sections 8, 9, 10, 11 and 12 below to the same extent as if the Optionee
continued to hold them. Any Shares not sold to the proposed transferee shall
remain subject to this Agreement. Notwithstanding the foregoing, the
restrictions under this Section 8(c) shall terminate in accordance with Section
13(a).
9. COMPANY'S RIGHT OF REPURCHASE.
(a) RIGHT OF REPURCHASE. The Company shall have the right (the
"Repurchase Right") upon the occurrence of any of the events specified in
Section 9(b) below (the "Repurchase Event") to repurchase from the Optionee (or
any Permitted Transferee) some or all (as determined by the Company) of the
Issued Shares held or subsequently acquired upon exercise of this Stock Option
in accordance with the terms hereof by the Optionee (or any Permitted
Transferee) at the price per share specified below. The Repurchase Right may be
exercised by the Company within the later of (i) six months following the date
of such event or (ii) seven months after the exercise of this Stock Option (the
"Repurchase Period"). The Repurchase Right shall be exercised by the Company by
giving the Optionee or Permitted Transferee written notice on or before the last
day of the Repurchase Period of its intention to exercise the Repurchase Right,
and, together with such notice, tendering to the Optionee or Permitted
Transferee an amount equal to the Fair Market Value of the shares, determined as
provided in Section 9(c). The Company may assign the Repurchase Right to one or
more Persons. Upon such notification, the Optionee and any Permitted Transferees
shall promptly surrender to the Company any certificates representing the Issued
Shares being purchased, together with a duly executed stock power for the
transfer of such Issued Shares to the Company or the Company's assignee or
assignees. Upon the Company's or its assignee's receipt of the certificates from
the Optionee or any Permitted Transferees, the Company or its assignee or
assignees shall deliver to him, her or them a check for the Repurchase Price of
the Issued Shares being purchased; PROVIDED, HOWEVER, that the Company may pay
the Repurchase Price for such shares by offsetting and canceling any
indebtedness then owed by the Optionee to the Company. At such time, the
Optionee and/or any holder of the Issued Shares shall deliver to the Company the
certificate or certificates representing the Issued Shares so repurchased, duly
endorsed for transfer, free and clear of any liens or encumbrances. The
Repurchase Right shall terminate in accordance with Section 13(a).
(b) COMPANY'S RIGHT TO EXERCISE REPURCHASE RIGHT. The Company shall
have the Repurchase Right in the event that any of the following events shall
occur:
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(i) The termination of the Optionee's service as a Director of
the Company for any reason whatsoever, regardless of the circumstances
thereof, and including without limitation upon death; or
(ii) The Optionee's or Permitted Transferee's Bankruptcy.
(c) DETERMINATION OF FAIR MARKET VALUE. The fair market value of the
Issued Shares shall be, for purposes of this Section 9, determined by the Board
as of the date the Board elects to exercise its repurchase rights in connection
with a Repurchase Event.
10. ESCROW ARRANGEMENT.
(a) ESCROW. In order to carry out the provisions of Sections 8, 9 and
11 of this Agreement more effectively, the Company shall hold any Issued Shares
in escrow together with separate stock powers executed by the Optionee in blank
for transfer, and any Permitted Transferee shall, as an additional condition to
any transfer of Issued Shares, execute a like stock power as to such Issued
Shares. The Company shall not dispose of the Issued Shares except as otherwise
provided in this Agreement. In the event of any repurchase by the Company (or
any of its assigns), the Company is hereby authorized by the Optionee and any
Permitted Transferee, as the Optionee's and each such Permitted Transferee's
attorney-in-fact, to date and complete the stock powers necessary for the
transfer of the Issued Shares being purchased and to transfer such Issued Shares
in accordance with the terms hereof. At such time as any Issued Shares are no
longer subject to the Company's repurchase, first refusal and drag along rights,
the Company shall, at the written request of the Optionee, deliver to the
Optionee (or the relevant Permitted Transferee) a certificate representing such
Issued Shares with the balance of the Issued Shares to be held in escrow
pursuant to this Section 10.
(b) REMEDY. Without limitation of any other provision of this
Agreement or other rights, in the event that the Optionee, any Permitted
Transferees or any other person or entity is required to sell the Optionee's
Issued Shares pursuant to the provisions of Section 8, 9 and 11 of this
Agreement and in the further event that he or she refuses or for any reason
fails to deliver to the Company or its designated purchaser of such Issued
Shares the certificate or certificates evidencing such Issued Shares together
with a related stock power, the Company or such designated purchaser may deposit
the applicable purchase price for such Issued Shares with a bank designated by
the Company, or with the Company's independent public accounting firm, as agent
or trustee, or in escrow, for the Optionee, any Permitted Transferees or other
person or entity, to be held by such bank or accounting firm for the benefit of
and for delivery to him, her, them or it, and/or, in its discretion, pay such
purchase price by offsetting any indebtedness then owed by the Optionee as
provided above. Upon any such deposit and/or offset by the Company or its
designated purchaser of such amount and upon notice to the person or entity who
was required to sell the Issued Shares to be sold pursuant to the provisions of
Sections 8, 9 and 11, such Issued Shares shall at such time be deemed to have
been sold, assigned, transferred and conveyed to such purchaser, the holder
thereof shall have no further rights thereto (other than the right to withdraw
the payment thereof held in escrow, if applicable), and the Company shall record
such transfer in its stock transfer book or in any appropriate manner.
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11. DRAG ALONG RIGHT. In the event the holders of a majority of the
Company's equity securities then outstanding (the "Majority Shareholders")
determine to sell or otherwise dispose of all or substantially all of the assets
of the Company or all or fifty percent (50%) or more of the capital stock of the
Company in each case in a transaction constituting a change in control of the
Company, to any non-Affiliate(s) of the Company or any of the Majority
Shareholders, or to cause the Company to merge with or into or consolidate with
any non-Affiliate(s) of the Company or any of the Majority Shareholders (in each
case, the "Buyer") in a BONA FIDE negotiated transaction (a "Sale"), the
Optionee, including any Permitted Transferees, shall be obligated to and shall
upon the written request of a Majority Shareholders: (a) sell, transfer and
deliver, or cause to be sold, transferred and delivered, to the Buyer, his or
her Issued Shares (including for this purpose all of such Optionee's or his or
her Permitted Transferee's Issued Shares that presently or as a result of any
such transaction may be acquired upon the exercise of options (following the
payment of the exercise price therefor)) on substantially the same terms
applicable to the Majority Shareholders (with appropriate adjustments to reflect
the conversion of convertible securities, the redemption of redeemable
securities and the exercise of exercisable securities as well as the relative
preferences and priorities of preferred stock); and (b) execute and deliver such
instruments of conveyance and transfer and take such other action, including
voting such Issued Shares in favor of any Sale proposed by the Majority
Shareholders and executing any purchase agreements, merger agreements, indemnity
agreements, escrow agreements or related documents, as the Majority Shareholders
or the Buyer may reasonably require in order to carry out the terms and
provisions of this Section 11. The obligations under this Section 11 shall
terminate in accordance with Section 13(a).
12. LOCKUP PROVISION. The Optionee agrees, if requested by the Company and
any underwriter engaged by the Company, not to sell or otherwise transfer or
dispose of any Issued Shares (including, without limitation pursuant to Rule 144
under the Act) held by him or her for such period following the effective date
of any registration statement of the Company filed under the Act as the Company
or such underwriter shall specify reasonably and in good faith, not to exceed
180 days in the case of the Company's Initial Public Offering or 90 days in the
case of any other public offering.
13. MISCELLANEOUS PROVISIONS.
(a) TERMINATION. The Company's repurchase rights under Section 9, the
restrictions on transfer of Issued Shares under Section 8(c) and the Drag Along
obligations under Section 11 shall terminate upon the closing of the Company's
Initial Public Offering or upon consummation of any Sale Event, in either case
as a result of which shares of the Company (or successor entity) of the same
class as the Issued Shares are registered under Section 12 of the Exchange Act
and publicly traded on NASDAQ/NMS or any national security exchange.
(b) EQUITABLE RELIEF. The parties hereto agree and declare that legal
remedies may be inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
(c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. If, as a result of
any reorganization, recapitalization, reincorporation, reclassification, stock
dividend, stock split,
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reverse stock split or other similar change in the Common Stock, the outstanding
shares of Common Stock are increased or decreased or are exchanged for a
different number or kind of shares of the Company's stock, the restrictions
contained in this Agreement shall apply with equal force to additional and/or
substitute securities, if any, received by the Optionee in exchange for, or by
virtue of his or her ownership of, Issued Shares.
(d) CHANGE AND MODIFICATIONS. This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Optionee.
(e) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of
Delaware without regard to conflict of law
principles.
(f) HEADINGS. The headings are intended only for convenience in
finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
(g) SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(h) NOTICES. All notices, requests, consents and other communications
shall be in writing and be deemed given when delivered personally, by telex or
facsimile transmission or when received if mailed by first class registered or
certified mail, postage prepaid. Notices to the Company or the Optionee shall be
addressed as set forth underneath their signatures below, or to such other
address or addresses as may have been furnished by such party in writing to the
other.
(i) BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their respective
successors, permitted assigns, and legal representatives. The Company has the
right to assign this Agreement, and such assignee shall become entitled to all
the rights of the Company hereunder to the extent of such assignment.
(j) DISPUTE RESOLUTION. Except as provided below, any dispute arising
out of or relating to this Agreement or the breach, termination or validity
hereof shall be finally settled by binding arbitration conducted expeditiously
in accordance with the J.A.M.S./Endispute Comprehensive Arbitration Rules and
Procedures (the "J.A.M.S. Rules"). The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the
award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be Boston, Massachusetts.
The parties covenant and agree that the arbitration shall commence within
60 days of the date on which a written demand for arbitration is filed by any
party hereto. In connection with the arbitration proceeding, the arbitrator
shall have the power to order the production of documents by each party and any
third-party witnesses. In addition, each party may take up to three (3)
depositions as of right, and the arbitrator may in his or her discretion allow
additional
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depositions upon good cause shown by the moving party. However, the arbitrator
shall not have the power to order the answering of interrogatories or the
response to requests for admission. In connection with any arbitration, each
party shall provide to the other, no later than seven (7) business days before
the date of the arbitration, the identity of all persons that may testify at the
arbitration and a copy of all documents that may be introduced at the
arbitration or considered or used by a party's witness or expert. The
arbitrator's decision and award shall be made and delivered within six (6)
months of the selection of the arbitrator. The arbitrator's decision shall set
forth a reasoned basis for any award of damages or finding of liability. The
arbitrator shall not have power to award damages in excess of actual
compensatory damages and shall not multiply actual damages or award punitive
damages or any other damages that are specifically excluded under this
Agreement, and each party hereby irrevocably waives any claim to such damages.
The parties covenant and agree that they will participate in the
arbitration in good faith. This Section 13(j) applies equally to requests for
temporary, preliminary or permanent injunctive relief, except that in the case
of temporary or preliminary injunctive relief any party may proceed in court
without prior arbitration for the limited purpose of avoiding immediate and
irreparable harm.
Each of the parties hereto (i) hereby irrevocably submits to the
jurisdiction of any United States District Court of competent jurisdiction for
the purpose of enforcing the award or decision in any such proceeding, (ii)
hereby waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution (except as protected
by applicable law), that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in or by
such court, and hereby waives and agrees not to seek any review by any court of
any other jurisdiction which may be called upon to grant an enforcement of the
judgment of any such court. Each of the parties hereto hereby consents to
service of process by registered mail at the address to which notices are to be
given. Each of the parties hereto agrees that its, his or her submission to
jurisdiction and its, his or her consent to service of process by mail is made
for the express benefit of the other parties hereto. Final judgment against any
party hereto in any such action, suit or proceeding may be enforced in other
jurisdictions by suit, action or proceeding on the judgment, or in any other
manner provided by or pursuant to the laws of such other jurisdiction.
(k) COUNTERPARTS. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
[SIGNATURE PAGE FOLLOWS]
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
XXXXXXX HOLDINGS, INC.
By:
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Name:
Title:
Address:
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
OPTIONEE:
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Name:
Address:
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DESIGNATED BENEFICIARY:
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Beneficiary's Address:
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APPENDIX A
STOCK OPTION EXERCISE NOTICE
Xxxxxxx Holdings, Inc.
Attention: Chief Financial Officer
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Pursuant to the terms of my stock option agreement dated __________ (the
"Agreement") under the Xxxxxxx Holdings, Inc. 2005 Stock Option and Grant Plan,
I, [Insert Name] ________________, hereby [Circle One] partially/fully exercise
such option by including herein payment in the amount of $______ representing
the purchase price for [Fill in number of Option Shares] _______ option shares.
I have chosen the following form(s) of payment:
[ ] 1. Cash
[ ] 2. Certified or bank check payable to Xxxxxxx Holdings, Inc.
[ ] 3. Other (as described in the Agreement (please describe))
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In connection with my exercise of the option as set forth above, I hereby
represent and warrant to Xxxxxxx Holdings, Inc. as follows:
(i) I am purchasing the option shares for my own account for
investment only, and not for resale or with a view to the distribution
thereof.
(ii) I have had such an opportunity as I have deemed adequate
to obtain from Xxxxxxx Holdings, Inc. such information as is necessary to
permit me to evaluate the merits and risks of my investment in Xxxxxxx
Holdings, Inc. and have consulted with my own advisers with respect to my
investment in Xxxxxxx Holdings, Inc..
(iii) I have sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the
purchase of the option shares and to make an informed investment decision
with respect to such purchase.
(iv) I can afford a complete loss of the value of the option
shares and am able to bear the economic risk of holding such option shares
for an indefinite period of time.
(v) I understand that the option shares may not be registered
under the Securities Act of 1933 (it being understood that the option
shares are being issued and sold in reliance on the exemption provided in
Rule 701 thereunder) or any applicable state securities or "blue sky" laws
and may not be sold or otherwise transferred or disposed of in the absence
of an effective registration statement under the Securities Act of 1933 and
under any applicable state securities or "blue sky" laws (or exemptions
from
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the registration requirement thereof). I further acknowledge that
certificates representing option shares will bear restrictive legends
reflecting the foregoing.
Sincerely yours,
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Name:
Address:
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