THE KEYW HOLDING CORPORATION
Option
No.: _______
THE
KEYW HOLDING CORPORATION
2009
STOCK INCENTIVE PLAN
The KEYW
Holding Corporation, a Maryland corporation (the “Company”), hereby grants an
option to purchase shares of its common stock (the “Stock”) to the optionee
named below. The terms and conditions of the option are set forth in
this cover sheet, in the attachment and in the Company’s 2009 Stock Incentive
Plan (the “Plan”).
Date of
Award: __________________
Name of
Optionee:
Optionee’s
Identification Number:
Number of
Shares Covered by Option: ______________
Exercise
Price per Share: $_____.___
Vesting
Commencement Date: _________________
Expiration
Date:
Vesting
Schedule:
By
signing this cover sheet, you agree to all of the terms and conditions described
in the attached Agreement and in the Plan, a copy of which is also
attached. You acknowledge that you have carefully reviewed the Plan,
and agree that the Plan will control in the event any provision of this
Agreement should appear to be inconsistent.
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Optionee:
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(Signature)
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Company:
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(Signature)
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Title:
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Attachment
This
is not a stock certificate or a negotiable instrument
THE
KEYW HOLDING CORPORATION
2009
STOCK INCENTIVE PLAN
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Incentive
Stock Option
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This
option is intended to be an incentive stock option under Section 422 of
the Internal Revenue Code and will be interpreted
accordingly. If you cease to be an employee of the Company, its
parent or a subsidiary ("Employee") but continue to provide Service, this
option will be deemed a nonstatutory stock option three months after you
cease to be an Employee. In addition, to the extent that all or
part of this option exceeds the $100,000 rule of section 422(d) of the
Internal Revenue Code, this option or the lesser excess part will be
deemed to be a nonstatutory stock option.
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Vesting
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This
option is only exercisable before it expires and then only with respect to
the vested portion of the option. Subject to the preceding
sentence, you may exercise this option, in whole or in part, to purchase a
whole number of vested shares (not less than 100 shares unless the number
of shares purchased is the total number available for purchase under the
option), by following the procedures set forth in the Plan and below in
this Agreement.
Your right to purchase shares of Stock under this option vests as to equal installments of the total number of shares covered by this option, as shown on the cover sheet under vesting schedule provided you then continue in Service. Except
as provided below, no additional shares of Stock will vest after your
Service has terminated for any reason.
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Term
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Your
option will expire in any event at the close of business at Company
headquarters on the day before the 10th anniversary of the Grant Date, as
shown on the cover sheet. Your option will expire earlier (but
never later) if your Service terminates, as described
below. [NOTE:
If Grantee is a 10% stockholder, the term can’t be longer than 5
years.]
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Regular
Termination
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If
your Service terminates for any reason, other than death, Disability or
Cause, then your option will expire at the close of business at Company
headquarters on .
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Termination
for
Cause
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If
your Service is terminated for Cause, then you shall immediately forfeit
all rights to your option and the option shall immediately
expire.
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2
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Death
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If
your Service terminates because of your death, then your option will be
fully vested and exercisable and will expire at the close of business at
Company headquarters on the date six (6) months after the date of
death. During that six month period, your estate or heirs may
exercise the vested portion of your option.
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Disability
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If
your Service terminates because of your Disability, then your option will
be fully vested and exercisable and will expire at the close of business
at Company headquarters on the date six (6) months after your termination
date.
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Leave
of Absence
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For
purposes of this option, your Service does not terminate when you go on a
bona fide
employee leave of absence that was approved by the Company in writing, if
the terms of the leave provide for continued Service crediting, or when
continued Service crediting is required by applicable
law. However, your Service will be treated as terminating 90
days after you went on employee leave, unless your right to return to
active work is guaranteed by law or by a contract. Your Service
terminates in any event when the approved leave ends unless you
immediately return to active employee work.
The
Company determines, in its sole discretion, which leaves count for this
purpose, and when your Service terminates for all purposes under the
Plan.
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Notice
of Exercise
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When
you wish to exercise this option, you must notify the Company by filing
the proper “Notice of Exercise” form at the address given on the
form. Your notice must specify how many shares you wish to
purchase (in a parcel of at least 100 shares generally). Your
notice must also specify how your shares of Stock should be registered (in
your name only or in your and your spouse’s names as joint tenants with
right of survivorship). The notice will be effective when it is
received by the Company.
If
someone else wants to exercise this option after your death, that person
must prove to the Company’s satisfaction that he or she is entitled to do
so.
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Form
of Payment
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When
you submit your notice of exercise, you must include payment of the option
price for the shares you are purchasing. Payment may be made in
one (or a combination) of the following forms:
· Cash,
your personal check, a cashier’s check, a money order or another cash
equivalent acceptable to the Company.
· Shares
of Stock withheld by the Company from the shares of Stock otherwise to be
received, with such withheld shares having an aggregate Fair Market Value
on the date of exercise equal to the aggregate option
price.
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3
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· Shares
of Stock which have already been owned by you and which are surrendered to
the Company. The Fair Market Value of the shares, determined as of the
effective date of the option exercise, will be applied to the option
price.
· To
the extent a public market for the Stock exists as determined by the
Company, by delivery (on a form prescribed by the Company) of an
irrevocable direction to a licensed securities broker acceptable to the
Company to sell shares of Stock and to deliver all or part of the sale
proceeds to the Company in payment of the aggregate option
price.
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Withholding
Taxes
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You
will not be allowed to exercise this option unless you make acceptable
arrangements to pay any withholding or other taxes that may be due as a
result of the option exercise or sale of shares of Stock acquired under
this option. Any of the methods described under “Form of
Payment” will be considered acceptable arrangements for paying such
taxes.
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Transfer
of Option
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During
your lifetime, only you (or, in the event of your legal incapacity or
incompetency, your guardian or legal representative) may exercise the
option. You cannot transfer or assign this
option. For instance, you may not sell this option or use it as
security for a loan. If you attempt to do any of these things,
this option will immediately become invalid. You may, however,
dispose of this option in your will or it may be transferred upon your
death by the laws of descent and distribution.
Regardless
of any marital property settlement agreement, the Company is not obligated
to honor a notice of exercise from your spouse, nor is the Company
obligated to recognize your spouse’s interest in your option in any other
way.
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Market
Stand-off
Agreement
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In
connection with any underwritten public offering by the Company of its
equity securities pursuant to an effective registration statement filed
under the Securities Act, including the Company’s initial public offering,
you agree not to sell, make any short sale of, loan, hypothecate, pledge,
grant any option for the purchase of, or otherwise dispose or transfer for
value or agree to engage in any of the foregoing transactions with respect
to any shares of Stock without the prior written consent of the Company or
its underwriters, for such period of time after the effective date of such
registration statement as may be requested by the Company or the
underwriters (not to exceed 180 days in
length).
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4
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Investment
Representation
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If
the sale of Stock under the Plan is not registered under the Securities
Act, but an exemption is available which requires an investment or other
representation, you shall represent and agree at the time of exercise that
the Stock being acquired upon exercise of this option is being acquired
for investment, and not with a view to the sale or distribution thereof,
and shall make such other representations as are deemed necessary or
appropriate by the Company and its counsel.
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The
Company's Right of
First
Refusal
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In
the event that you propose to sell, pledge or otherwise transfer to a
third party any Stock acquired under this Agreement, or any interest in
such Stock, the Company shall have the “Right of First Refusal” with
respect to all (and not less than all) of such shares of
Stock. If you desire to transfer Stock acquired under this
Agreement, you must give a written “Transfer Notice” to the Company
describing fully the proposed transfer, including the number of shares
proposed to be transferred, the proposed transfer price and the name and
address of the proposed transferee.
The
Transfer Notice shall be signed both by you and by the proposed new
transferee and must constitute a binding commitment of both parties to the
transfer of the shares. The Company shall have the right to
purchase all, and not less than all, of the shares of Stock on the terms
of the proposal described in the Transfer Notice (subject, however, to any
change in such terms permitted in the next paragraph) by delivery of a
notice of exercise of the Right of First Refusal within thirty (30) days
after the date when the Transfer Notice was received by the
Company.
If
the Company fails to exercise its Right of First Refusal within thirty
(30) days after the date when it received the Transfer Notice, you may,
not later than ninety (90) days following receipt of the Transfer Notice
by the Company, conclude a transfer of the Stock subject to the Transfer
Notice on the terms and conditions described in the Transfer
Notice. Any proposed transfer on terms and conditions different
from those described in the Transfer Notice, as well as any subsequent
proposed transfer by you, shall again be subject to the Right of First
Refusal and shall require compliance with the procedure described in the
paragraph above. If the Company exercises its Right of First
Refusal, the parties shall consummate the sale of the Stock on the terms
set forth in the Transfer Notice within 60 days after the date when the
Company received the Transfer Notice (or within such longer period as may
have been specified in the Transfer Notice); provided, however, that in
the event the Transfer Notice provided that payment for the Stock was to
be made in a form other than lawful money paid at the time of transfer,
the Company shall have the option of paying for the Stock with lawful
money equal to the present value of the consideration described in the
Transfer Notice.
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5
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In
the case of any purchase of Stock under this Right of First Refusal, at
the option of the Company, the Company may pay you the purchase price in
three or fewer annual installments. Interest shall be credited
on the installments at the applicable federal rate (as determined for
purposes of Section 1274 of the Code) in effect on the date on which
the purchase is made. The Company shall pay at least one-third
of the total purchase price each year, plus interest on the unpaid
balance, with the first payment being made on or before the 60th
day after the purchase.
The
Company’s rights under this subsection shall be freely assignable, in
whole or in part, shall inure to the benefit of its successors and assigns
and shall be binding upon any transferee of the shares of
Stock.
The
Company’s Right of First Refusal shall terminate in the event that the
Stock is listed on an established national or regional stock exchange, is
admitted for quotation on The Nasdaq Stock Market, Inc., or is publicly
traded in an established securities market.
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Right
to Repurchase
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Following
termination of your Service for any reason, the Company shall have the
right to purchase all of those shares of Stock that you have or will
acquire under this option. If the Company exercises its right
to purchase the shares, the Company will notify you of its intention to
purchase such shares, and will consummate the purchase within one year (or
90 days to the extent required by applicable law) of your termination of
Service or, in the case of Stock acquired after your termination of
Service, within one year (or 90 days to the extent required by applicable
law) of the date of exercise.
The
purchase price shall be the Fair Market Value of the shares on the date of
your termination of Service if the Company exercises its right to purchase
such shares within 90 days of your termination of Service or exercises its
right within 90 days of the date of your exercise of the option following
termination of Service; otherwise the purchase price shall be the Fair
Market Value of the shares on the date the Company gives you notice of its
intent to exercise its right to purchase the
shares.
The
Company's rights of repurchase shall terminate in the event that the Stock
is listed on an established national or regional stock exchange, is
admitted for quotation on The Nasdaq Stock Market, Inc., or is publicly
traded in an established securities
market.
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6
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Retention
Rights
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Neither
your option nor this Agreement give you the right to be retained by the
Company (or any Parent, Subsidiaries or Affiliates) in any
capacity. The Company (and any Parent, Subsidiaries or
Affiliates) reserve the right to terminate your Service at any time and
for any reason.
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Shareholder
Rights
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You,
or your estate or heirs, have no rights as a shareholder of the Company
until a certificate for your option’s shares has been issued (or an
appropriate book entry has been made). No adjustments are made
for dividends or other rights if the applicable record date occurs before
your stock certificate is issued (or an appropriate book entry has been
made), except as described in the Plan.
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Adjustments
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In
the event of a stock split, a stock dividend or a similar change in the
Stock, the number of shares covered by this option and the option price
per share shall be adjusted (and rounded down to the nearest whole number)
if required pursuant to the Plan. Your option shall be subject
to the terms of the agreement of merger, liquidation or reorganization in
the event the Company is subject to such corporate
activity.
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Legends
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All
certificates representing the Stock issued upon exercise of this option
shall, where applicable, have endorsed thereon the following
legends:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT
BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR HIS OR HER PREDECESSOR
IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY
OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE.”
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“THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION OR QUALIFICATION THEREOF UNDER SUCH ACT
AND SUCH APPLICABLE STATE OR OTHER JURISDICTION'S SECURITIES LAWS OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION AND QUALIFICATION IS NOT
REQUIRED.”
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7
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Applicable
Law
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This
Agreement will be interpreted and enforced under the laws of the State of
Maryland, other than any conflicts or choice of law rule or principle that
might otherwise refer construction or interpretation of this Agreement to
the substantive law of another jurisdiction.
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The
Plan
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The
text of the Plan is incorporated in this Agreement by
reference. Certain capitalized terms used in this Agreement are
defined in the Plan, and have the meaning set forth in the
Plan.
This
Agreement and the Plan constitute the entire understanding between you and
the Company regarding this option. Any prior agreements,
commitments or negotiations concerning this option are
superseded.
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Data
Privacy
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In
order to administer the Plan, the Company may process personal data about
you. Such data includes but is not limited to the information
provided in this Agreement and any changes thereto, other appropriate
personal and financial data about you such as home address and business
addresses and other contact information, payroll information and any other
information that might be deemed appropriate by the Company to facilitate
the administration of the Plan.
By
accepting this grant, you give explicit consent to the Company to process
any such personal data. You also give explicit consent to the
Company to transfer any such personal data outside the country in which
you work or are employed, including, with respect to non-U.S. resident
Grantees, to the United States, to transferees who shall include the
Company and other persons who are designated by the Company to administer
the Plan.
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Consent
to Electronic
Delivery
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The
Company may choose to deliver certain statutory materials relating to the
Plan in electronic form. By accepting this grant you agree that
the Company may deliver the Plan prospectus and the Company’s annual
report (to the extent required) to you in an electronic
format. If at any time you would prefer to receive paper copies
of these documents, as you are entitled to, the Company would be pleased
to provide copies. Please contact Xxx XxXxxxxx to request paper
copies of these
documents.
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8
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Certain
Dispositions
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If
you sell or otherwise dispose of Stock acquired pursuant to the exercise
of this option following termination of the Company's Right of First
Refusal and sooner than the one year anniversary of the date you acquired
the Stock, then you agree to notify the Company in writing of the date of
sale or disposition, the number of share of Stock sold or disposed of and
the sale price per share within 30 days of such sale or
disposition.
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By
signing the cover sheet of this Agreement, you agree to all of the terms and
conditions described above and in the Plan.
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