EXHIBIT 10.10A
BIG DOG HOLDINGS, INC.
ELIGIBLE EMPLOYEE
NON-QUALIFIED STOCK OPTION AGREEMENT
This AGREEMENT dated as of __________, 1997, is between BIG DOG HOLDINGS,
INC., a Delaware corporation (the "CORPORATION"), and the individual named on
the signature page hereof (the "PARTICIPANT"). The Corporation and the
Participant agree to the terms and conditions set forth herein as required by
the terms of the Plan (as defined below).
A. The Corporation has adopted and the stockholders of the Corporation
have approved the 1997 Performance Award Plan, as supplemented by an Addendum (
the "ADDENDUM") each dated as of August 1, 1997 (together with the Addendum, the
"PLAN"). All capitalized terms not defined herein shall have the meaning
provided in the Plan.
B. Pursuant to the Plan, the Corporation has granted an option (the
"OPTION") to the Participant on the terms and conditions evidenced by this
Agreement, contemplated by the Plan, which Option is not intended as and shall
not be deemed to be an incentive stock option within the meaning of Section 422
of the Code.
In consideration of the mutual promises and covenants made herein and the
mutual benefits to be derived herefrom, the parties agree as follows:
1. OPTION GRANT. This Agreement evidences the grant to the
Participant, as of August 1, 1997 (the "AWARD DATE"), of an Option to purchase
an aggregate of ____________________________ shares of Common Stock under
Section 2 of the Plan (the "OPTION SHARES"), subject to the terms and conditions
of, and to adjustments as set forth in or pursuant to, the Plan and to the terms
and conditions hereof.
2. EXERCISE PRICE. The Option entitles the Participant to purchase
(subject to the vesting requirements and other terms of Sections 3 through 13
below) all or any part of the Option Shares at a price per share of Twelve
Dollars ($12.00), which represents the Fair Market Value of the shares on the
Award Date as determined by the Board in accordance with the Plan.
3. OPTION EXERCISABILITY AND TERM.
3.1. Subject to adjustment pursuant to the Plan, the Option will first
become and, subject to Section 5, remain exercisable as to 20% of the shares on
August 1,
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1998 and as to an additional 20% of the shares on each of the next four
anniversaries of that date, in each case subject to adjustments, acceleration
and termination under the Plan.
3.2. The Option expires on July 31, 2004 (the "EXPIRATION DATE"),
unless earlier terminated in accordance with the terms of the Plan or this
Agreement.
3.3 To the extent the Participant does not in any year purchase all
or any part of the shares to which the Participant is entitled, the Participant
has the right cumulatively thereafter to purchase any shares not so purchased
and such right shall continue until the Option terminates or expires.
3.4 Fractional share interests shall be disregarded, but may be
cumulated.
3.5 No fewer than 100 shares may be purchased at any one time, unless
the number purchased is the total number at the time available for purchase
under the Option.
3.6 Participant acknowledges that the vesting schedule requires
continued service through each applicable vesting date as a condition to the
vesting of the applicable rights and benefits under this Agreement. Partial
service, even if substantial, during any vesting period will not entitle the
Participant to any proportionate vesting or avoid or mitigate a termination of
rights and benefits upon or following a termination of employment or service as
provided in Section 5 below or under the Plan.
4. METHOD OF EXERCISE OF OPTION. The Option shall be exercisable by
the delivery to the Corporation of a written notice stating the number of shares
to be purchased pursuant to the Option and accompanied by payment as provided in
or pursuant to Section 2.2.2(a), (b), or (e) of the Plan, or in any combination
thereof; subject to such further limitations as the Committee may from time to
time establish as to any non-cash payment and as to the tax withholding
requirements of the Plan. In addition, the Participant or his or her successor
in interest shall furnish any written statements required pursuant to Section
6.4 of the Plan.
5. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH; CHANGE IN
SUBSIDIARY STATUS. The Option and all other rights hereunder, to the extent not
previously exercised, shall terminate and become null and void at such time as
the Participant ceases to be employed by the Company except that:
(a) if the Participant's employment terminates by reason of
disability (as determined by the Committee), the Participant may at any
time within a period of six (6) months after the termination of employment
exercise the Option, but only to the extent the Option was exercisable at
the date of such termination;
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(b) if the Participant's employment terminates by reason of
Retirement, the Participant may at any time within a period of six (6)
months after such termination exercise the Option, but only to the extent
the Option was exercisable at the date of such termination;
(c) if the Participant's employment terminates by reason of
resignation, other than pursuant to a dismissal for Cause (as defined
below), or by reason of a dismissal without Cause, the Participant may at
any time within a period of three (3) months after such termination
exercise the Option, but only to the extent the Option was exercisable at
the date of such termination;
(d) if the Participant dies while in the employ of the Company,
or within three (3) months after a termination described in subsection (a)
of this Section 5, then the Option may be exercised within a period of six
(6) months after the Participant's date of death, but only to the extent
the Option was exercisable on the date of Participant's termination of
service;
PROVIDED, HOWEVER, THAT IN EACH CASE IN NO EVENT MAY THE OPTION BE EXERCISED BY
ANYONE UNDER THIS SECTION 5 OR OTHERWISE AFTER THE EXPIRATION DATE.
For purposes of clause (c) of this Section 5, the Participant will be considered
to have been dismissed for "Cause" if the Company has terminated Participant's
employment because of any act which has resulted in the Participant's personal
gain at the expense of the Company or because of incompetence, insubordination
or refusal to perform assigned duties; negligence, willful misconduct or breach
of fiduciary duty; being convicted of (or pleading guilty or no contest to) a
crime (other than minor traffic violations or similar offenses); being under the
influence of, or using, distributing or possessing, unauthorized or illegal
drugs or intoxicating beverages while on duty or on the Company's premises;
suspicion of theft, embezzlement, fraud, or dishonesty; willful destruction or
defacement of the Company's, a visitor's, or an employee's property;
unauthorized disclosure of confidential information; falsifying or altering the
Company's records; inappropriate absences from work; or other conduct that the
Committee believes may result in a detriment to the business or reputation of
the Company. In each case, the existence or non-existence of "Cause" shall be
determined in the sole discretion of the Committee. Nothing contained in this
Agreement or the Plan constitutes an employment commitment by the Company,
affects the Participant's status as an employee-at-will who is subject to
termination without cause, confers upon the Participant any right to remain
employed by the Company or any subsidiary, interferes in any way with the right
of the Company or of any subsidiary at any time to terminate such employment, or
affects the Company's right to increase or decrease the Participant's other
compensation.
6. TERMINATION OF OPTION UPON CERTAIN EVENTS. The Option to the
extent not previously exercised may be terminated in accordance with the
provisions of Section 6.2 of the Plan.
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7. NON-TRANSFERABILITY OF OPTION; CALL RIGHTS; OTHER RESTRICTIONS;
INVESTMENT REPRESENTATIONS.
7.1. During the Participant's lifetime, this Option and any other
rights hereunder may be exercised only by the Participant or the Participant's
duly appointed guardian or legal representative. The Option and such rights
shall not be sold, transferred, assigned, pledged, hypothecated or otherwise
disposed of in any way (whether by operation of law or otherwise). Nothing in
this Section 7 shall prevent a transfer by will or by the applicable laws of
descent and distribution.
7.2. Unless and until the issuance of the Option Shares is registered
under the Securities Act of 1933, the Option Shares are subject to substantial
restrictions on transfer as provided in Appendix A hereto, incorporated herein
by this reference.
7.3. The Participant acknowledges that by executing this Agreement he
or she makes the investment and other representations set forth in Appendix A
hereto, incorporated herein by this reference.
8. NOTICES. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the Corporation at its principal
office, to the attention of the General Counsel and to the Participant at the
address given beneath the Participant's signature hereto, or at such other
address as either party may hereafter designate in writing to the other.
9. PARTICIPANT NOT A STOCKHOLDER.
9.1. Neither the Participant nor any other person entitled to exercise
the Option shall have any of the rights or privileges of a stockholder of the
Corporation as to any shares of Common Stock not actually issued and delivered
to him or her prior to delivery of the exercise price and satisfaction of all
other conditions precedent to the due exercise of the Option and delivery of
Option Shares.
9.2 The Participant acknowledges and agrees that neither the Option
nor anything contained in this Agreement or the Plan (a) confers upon the
Participant any right to vote or to give or withhold consent to any corporate
action, to receive any notices of meetings or other action of the board or
stockholders, to receive dividends or other distributions, or otherwise to
receive rights or benefits in respect of shares issuable on the exercise of the
Option or any other rights of a stockholder, (b) creates any equity interest in
the Corporation, or (c) imposes on the Corporation, the Board, any committee of
the Board or any officer, director or agent of the Corporation any fiduciary
duty to the Participant. Participant's rights are solely in contract and
limited to claims for contract damages if the Corporation materially breaches
this Agreement.
9.3 Neither the Option nor anything contained in this Agreement or
the Plan shall be deemed to restrict in any way any rights of the stockholders
of the
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Corporation or the Board during the term of this Agreement to issue
additional securities of the Corporation and to determine the consideration
therefor, to make distributions to stockholders, to sell or dispose of
assets, to reorganize, merge, or dissolve and liquidate the Corporation or to
take any other action or make any other change (fundamental or otherwise)
affecting the structure, existence, organization, operations, business assets
or equity of the Corporation and/or any of its subsidiaries. No adjustments
to the Option exercise price or number of shares will be required in
connection with any of such actions or events, except as, the Committee shall
expressly provide under Section 6.2 of the Plan.
10. EFFECT OF AWARD AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of any successor or successors of the Corporation,
except to the extent the Committee determines otherwise.
11. LAWS APPLICABLE TO CONSTRUCTION. The Option has been granted,
executed and delivered as of the day and year first above written, and the
interpretation, performance and enforcement of the Option and this Agreement
shall be governed by the laws of the State of California.
12. GENERAL TERMS. The Option, this Agreement and all rights of
Participant thereunder are subject to, and the Participant agrees to be bound
by, all of the terms and conditions of the provisions of the Plan, incorporated
herein by this reference. The Participant acknowledges receipt of a copy of the
Plan, which is made a part hereof by this reference, and reading and
understanding its applicable provisions. Provisions of the Plan that confer
discretionary authority on the Committee do not (and shall not be deemed to)
create any rights of the Participant, unless such rights are expressly set forth
herein or in the sole discretion of the Committee are conferred by appropriate
action of the Committee under the Plan after the date hereof.
13. INFORMATION. The Participant acknowledges that he has received
and reviewed a Private Placement Memorandum dated as of August 1, 1997 providing
information as to the plan and the Corporation, which include financial
statements of the Corporation as of and for periods ended December 31, 1996 and
June 30, 1997.
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The parties have signed this Agreement as of the date in Section 1.
BIG DOG HOLDINGS, INC.
(a Delaware corporation)
By:_____________________________
Title:__________________________
PARTICIPANT
______________________________
(Signature)
______________________________
(Print Name)
______________________________
(Address)
______________________________
(City, State, Zip Code)
______________________________
(Social Security Number)
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SPOUSAL CONSENT
---------------
In consideration of the execution of the foregoing Non-Qualified Stock
Option Agreement by Big Dog Holdings, Inc., I, _________________________, the
spouse of the Participant named therein, agree to be bound by all of the terms
and provisions thereof and of the Plan.
DATED: _______________, 1997
______________________________
Signature of Spouse
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APPENDIX A
BIG DOG HOLDINGS, INC.
1997 PERFORMANCE AWARD PLAN
SECURITIES LAW INVESTMENT REPRESENTATIONS
1. RESTRICTIONS ON SHARES. The Participant represents that he/she understand
that (i) the offer and grant of an Option to the Participant and the offer and
sale of any Option Shares is being made to the Participant without registration
of such offer, grant or sale under federal securities laws and without
qualification under any state securities laws. Accordingly, the Option Shares
will be "restricted securities" under Rule 144 Under the Securities Act since
they are being acquired from the Corporation in an offering under Rule 701 and
(ii) under such laws and applicable regulations, any Option Shares may be resold
without registration under the Securities Act and qualification under state laws
only in certain limited circumstances. The Participant represents that he/she
is familiar with such Rules 144 and 701, and understands the resale limitations
imposed thereby and by the Securities Act and the state securities law.
2. ADDITIONAL RESTRICTIONS. The Participant represents that he/she has read
and understands the restrictions and limitations imposed on the Option and the
Option Shares under the Plan, including, but not limited to the termination
provisions of Section 2.6 and the non-transferability provisions of Section 1.9.
3. SHARE CERTIFICATE LEGEND. The Participant represents that he/she
understands and acknowledges that any certificate evidencing the Option Shares
if and when issued may, if determined to be appropriate by the General Counsel
of the Corporation, bear, in addition to any other legends which may be required
at the time by applicable state or federal securities laws, the following
legends:
"THE SALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER AND VOTING OF THE
SHARES PRESENTED BY THIS CERTIFICATE OR ANY INTEREST THEREIN ARE
SUBJECT TO A NON-QUALIFIED STOCK OPTION AGREEMENT DATED AUGUST 1, 1997
(A COPY OF WHICH IS ON FILE AT THE OFFICE OF BIG DOG HOLDINGS, INC.).
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT") NOR HAVE THEY BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE. NO
TRANSFER OF SUCH SECURITIES WILL BE PERMITTED UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER, THE TRANSFER
IS MADE IN ACCORDANCE WITH RULES 144 OR 701 UNDER THE ACT, OR IN
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THE OPINION OF COUNSEL TO THE CORPORATION, REGISTRATION UNDER THE ACT IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT AND WITH
APPLICABLE STATE SECURITIES LAWS."
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