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EXHIBIT 10.51
NON-QUALIFIED STOCK OPTION AGREEMENT
OF
NEXTERA ENTERPRISES, INC.
THIS AGREEMENT is made by and between Nextera Enterprises,
Inc., a Delaware corporation (the "COMPANY"), and Xxxxxx X. Xxxx, Chief
Executive Officer of the Company ("OPTIONEE"):
WHEREAS, the Company wishes to afford the Optionee the
opportunity to purchase shares of its Class A Common Stock;
WHEREAS, the Company wishes to carry out the Plan (the terms
of which are hereby incorporated by reference and made a part of this
Agreement); and
WHEREAS, the Committee appointed to administer the Plan has
determined effective October 29, 1999 (the "COMMITMENT DATE") that it would be
to the advantage and best interest of the Company and its stockholders to grant
the Non-Qualified Option provided for herein to the Optionee for the reasons
described above and as an inducement to enter into or remain in the service of
the Company and as an incentive for increased efforts during such service, and
has advised the Company thereof and instructed the undersigned officer to issue
said Option.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below unless the context clearly indicates to
the contrary. The masculine pronoun shall include the feminine and neuter, and
the singular the plural, where the context so indicates. All capitalized terms
used herein without definition shall have the meanings ascribed to such terms in
the Plan.
SECTION 1.1 - AGREEMENT
"AGREEMENT" shall mean this Non-Qualified Stock Option
Agreement of Nextera Enterprises, Inc.
SECTION 1.3 - CAUSE
"CAUSE" shall mean acts of disloyalty or dishonesty, which
results in or is intended to result in personal enrichment to the Optionee at
the expense of the Company; acts of moral turpitude or illegal or unprofessional
conduct which may adversely affect the reputation of the Company or its
relationships with its customers or suppliers; fraudulent conduct in connection
with the business or affairs of the Company, without regard to the intent of any
such conduct; or material and intentional violation by the Optionee of
directives from the Board.
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SECTION 1.3 - OPTION
"OPTION" shall mean the option to purchase Class A Common
Stock of the Company granted under this Agreement. This Option shall not be an
incentive stock option within the meaning of Section 422 of the Code.
SECTION 1.4 - PLAN
"PLAN" shall mean The 1998 Equity Participation Plan of
Nextera Enterprises, Inc., as the same may be restated, amended, modified or
supplemented.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
In consideration of the Optionee's agreement to remain in the
employ of the Company or its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Optionee
the option to purchase any part or all of an aggregate of 800,000 shares of its
Class A Common Stock upon the terms and conditions set forth in this Agreement
and the Plan. This Option shall not be an incentive stock option within the
meaning of Section 422 of the Code.
SECTION 2.2 - PURCHASE PRICE
The purchase price of the shares of stock covered by this
Option shall be equal to $5.3125 per share without commission or other charge.
SECTION 2.3 - CONSIDERATION TO COMPANY
In consideration of the granting of this Option by the
Company, the Optionee agrees to render faithful and efficient services to the
Company, with such duties and responsibilities as the Company shall from time to
time prescribe. Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary,
or shall interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at
any time for any reason whatsoever, with or without Cause.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall become exercisable in installments
as follows:
(i) The first installment shall consist of 200,000
shares of Class A Common Stock covered by the Option and shall become
exercisable at such time as the closing price for the
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Class A Common Stock on the Nasdaq National Market or such other
national securities exchange upon which the Class A Common Stock may in
the future be listed, for a period of twenty (20) consecutive trading
days equals or exceeds $7.50 per share.
(ii) The second installment shall consist of 200,000
shares of Class A Common Stock covered by the Option and shall become
exercisable at such time as the closing price for the Class A Common
Stock on the Nasdaq National Market or such other national securities
exchange upon which the Class A Common Stock may in the future be
listed, for a period of twenty (20) consecutive trading days equals or
exceeds $10.00 per share.
(iii) The third installment shall consist of 400,000
shares of Class A Common Stock covered by the Option and shall become
exercisable at such time as the closing price for the Class A Common
Stock on the Nasdaq National Market or such other national securities
exchange upon which the Class A Common Stock may in the future be
listed, for a period of twenty (20) consecutive trading days equals or
exceeds $12.50 per share.
(b) Subject to Section 3.4, no portion of the Option which is
unexercisable at Termination of Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
The installments provided for in Section 3.1 hereof are
cumulative. Each such installment which becomes exercisable pursuant to Section
3.1 hereof shall remain exercisable until it becomes unexercisable under Section
3.3 or as otherwise provided under the Plan.
SECTION 3.3 - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after
the first to occur of the following events:
(a) The expiration of ten (10) years from the Commitment Date;
or
(b) The expiration of ninety (90) days from the date of the
Optionee's Termination of Employment for any reason except death or for Cause;
or
(c) The expiration of three hundred and ninety (390) days from
the date of the Optionee's Termination of Employment due to the Optionee's
death; or
(d) The date of the Termination of Employment if such
termination is for Cause.
SECTION 3.4 - ACCELERATION OF EXERCISABILITY
(a) Notwithstanding Section 3.1 hereof, in the event of
Optionee's death prior to the vesting of one or more installments of the Option
set forth in Section 3.1, such installment(s) shall be deemed to be exercisable
if such installment(s) would have become exercisable in accordance with the
terms of Section 3.1 within the twelve (12) months following the Optionee's
death.
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(b) Notwithstanding Section 3.1 hereof, in the event of
Optionee's Termination of Employment by the Company not for Cause, the Option
shall become fully exercisable immediately upon the Optionee's Termination of
Employment.
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Optionee, only the Optionee may
exercise the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3 hereof or as otherwise provided under the Plan,
be exercised by the Optionee's personal representative or by any person
empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior
to the time when the Option or portion thereof becomes unexercisable under
Section 3.3 hereof or as otherwise provided under the Plan; provided, however,
that each partial exercise shall be for not less than ten (10) shares and shall
be for whole shares only.
SECTION 4.3 - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary or his office of all of the
following prior to the time when the Option or such portion becomes
unexercisable under Section 3.3 hereof or as otherwise provided under the Plan:
(a) A written notice complying with the applicable rules
established by the Committee stating that the Option, or a portion thereof, is
exercised. The notice shall be signed by the Optionee or other person then
entitled to exercise the Option or such portion; and
(b) (i) Full cash payment to the Secretary of the Company for
the shares with respect to which the Option or portion is exercised; or
(ii) With the consent of the Committee, shares of the
Company's Class A Common Stock which have been owned by the Optionee for a
period of more than six months, duly endorsed for transfer to the Company, with
a Fair Market Value on the date of delivery equal to the aggregate exercise
price of the Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse
promissory note bearing interest (at no less than such rate as shall then
preclude the imputation of interest under the Code or successor provision) and
payable upon such terms as may be prescribed by the Committee. The Committee may
also prescribe the form of such note and the security to be given for such note.
The Option may not be exercised, however, by delivery of a promissory note or by
a loan from the Company when or where such loan or other extension of credit is
prohibited by law; or
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(iv) With the consent of the Committee, any combination of
the consideration provided in the foregoing subparagraphs (i), (ii) and (iii);
and
(c) A bona fide written representation and agreement, in the
form attached hereto as EXHIBIT A (or, at the discretion of the Committee, such
other form which the Committee deems satisfactory), signed by the Optionee or
other person then entitled to exercise the Option or portion, stating that the
shares of stock are being acquired for his own account, for investment and
without any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act and then applicable
rules and regulations thereunder, and that the Optionee or other person then
entitled to exercise the Option or portion will indemnify the Company against
and hold it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above. The
Committee may, in its absolute discretion, take whatever additional actions it
deems appropriate to insure the observance and performance of such
representation and agreement and to effect compliance with the Securities Act
and any other federal or state securities laws or regulations. Without limiting
the generality of the foregoing, the Committee may require an opinion of counsel
acceptable to it to the effect that any subsequent transfer of shares acquired
on the Option exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates evidencing stock
issued on exercise of this Option shall bear an appropriate legend referring to
the provisions of the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such exercise
have been registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax law, it is
required to withhold upon exercise of the Option; or with the consent of the
Committee, the consideration described in clauses (ii) and (iii) of Section
4.3(b) above equal to the sums required to be withheld, may be used to make all
or part of such payment; and; and
(e) In the event the Option or portion shall be exercised
pursuant to Section 4.1 hereof by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the Option.
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the
Option, or any portion thereof, may be either previously authorized but unissued
shares or issued shares which have then been reacquired by the Company. Such
shares shall be fully paid and nonassessable. The Company shall not be required
to issue or deliver any certificate or certificates for shares of stock
purchased upon the exercise of the Option or portion thereof prior to
fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification
of such shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any
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other governmental regulatory body, which the Committee shall, in its absolute
discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency, including any approval which may be
required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, which the Committee shall, in its absolute discretion, determine to be
necessary or advisable; and
(d) The receipt by the Company of full payment for such
shares, including payment of all amounts which, under federal, state or local
tax law, the Company (or other employer corporation) is required to withhold
upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience. SECTION 4.5 - RIGHTS AS STOCKHOLDER
The holder of the Option shall not be, nor have any of the
rights or privileges of, a stockholder of the Company in respect of any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
OTHER PROVISIONS
SECTION 5.1 - ADMINISTRATION
The Committee shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret, amend
or revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Optionee, the Company and all other interested persons. No member of
the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. In its
absolute discretion, the Board may at any time and from time to time exercise
any and all rights and duties of the Committee under the Plan and this Agreement
except with respect to matters which under Rule 16b-3 or Section 162(m) of the
Code, or any regulations or rules issued thereunder, are required to be
determined in the sole discretion of the Committee.
SECTION 5.2 - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part
thereof shall be sold, pledged, assigned, or transferred in any manner other
than by will or the laws of descent and distribution, unless and until the
Option has been exercised (and, in such event, solely in accordance with the
terms and conditions of this Agreement and the Plan), or the shares underlying
the Option have been issued, and all restrictions applicable to such shares have
lapsed. Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall
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be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except to
the extent that such disposition is permitted by the preceding sentence.
SECTION 5.3 - SHARES TO BE RESERVED
The Company shall at all times during the term of the Option
reserve and keep available such number of shares of Class A Common Stock as will
be sufficient to satisfy the requirements of this Agreement.
SECTION 5.4 - NOTICES
Any notice to be given under the terms of this Agreement to
the Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. All such notices
and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five (5) business days after being
deposited in the mail, postage prepaid, if mailed; when answered back if
telexed; when receipt acknowledged, if telecopied; and the next business day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
SECTION 5.5 - TITLES
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - CONSTRUCTION
This Agreement shall be administered, interpreted and enforced
under the internal laws of the State of Delaware without regard to conflicts of
laws thereof.
SECTION 5.7 - CONFORMITY TO SECURITIES LAWS
The Optionee acknowledges that the Plan is intended to conform
to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities
and Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Option is granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and this Agreement shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.
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SECTION 5.8 - AMENDMENTS
This Agreement and the Plan may be amended without the consent
of the Optionee provided that such amendment would not impair any rights of the
Optionee under this Agreement. No amendment of this Agreement shall, without the
consent of the Optionee, impair any rights of the Optionee under this Agreement.
SECTION 5.9 - INCORPORATION OF PLAN
This Agreement is made pursuant to the provisions of the Plan
which is incorporated by reference herein. Terms used herein shall have the
meaning employed by the Plan, unless the context clearly requires otherwise. In
the event of a conflict between the provisions of the Plan and the provisions of
this Agreement, the provisions of the Plan shall govern.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto.
Dated: ________, 2000
NEXTERA ENTERPRISES, INC.,
a Delaware corporation
By
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
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Xxxxxx X. Xxxx
Optionee
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Address
Optionee's Taxpayer
Identification Number:
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EXHIBIT A
NEXTERA ENTERPRISES, INC.
NOTICE OF EXERCISE OF OPTION
Name: _________________________________________________________________________
Social Security Number: _______________________________________________________
I hereby give notice of the exercise of the following shares:
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Type of Date Number of Option Payment
Option Granted Shares Price Due
------ ------- ------ ----- ---
X =
----------- ---------- ----------- -------- --------
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Method of
Payment: ____ Personal Check ____ Wire Transfer ____ Previously Owned Shares
In the case of an exercise using previously-owned shares, I hereby certify
ownership of sufficient number of shares of Class A Common Stock for a period of
at least six months to effect such exercise.
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Tax Withholding
Method: ____ Personal Check ____ Wire Transfer
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Address to be used for
Stockholder Mailings: _________________________________________________________
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Address where Certificate
should be mailed: _____________________________________________________________
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In connection with the purchase of the Class A Common Stock, par value $.001 per
share (the "Securities") of Nextera Enterprises, Inc., a Delaware corporation
(the "Company"), the undersigned optionee ("Optionee") represents to the Company
the following:
1. Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire
the Securities. Optionee is acquiring these Securities for
investment for Optionee's own account only and not with a view to,
or for resale in connection with any "distribution" thereof within
the meaning of the Securities Act of
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1933, as amended (the "Securities Act"), except as may be
permitted under the Securities Act and applicable rules and
regulations promulgated thereunder.
2. Optionee agrees to indemnify the Company against and hold it free
and harmless from any loss, damage, expense or liability resulting
to the Company if the purchase or any sale or distribution of the
Securities by Optionee is contrary to the representation and
agreement referred to above.
In connection with this stock option exercise, please contact:
- The Company's legal counsel if you plan to sell the shares issued
upon the exercise of this option.
- The Company's accounting department regarding your tax withholding
liability for this option exercise.
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Date Optionee's Signature
XXXXXXX XXXXXXX (SECTION 10b-5) REMINDERS Both the federal securities laws and
Company policy prohibit transactions in the Company's Common Stock at a time
when you may be in possession of material information about the Company which
has not been publicly disclosed. This also applies to members of your household,
anyone receiving information regarding the Company from you, as well as all
others whose transactions may be attributable to you. Material information, in
short, is any information which could affect the stock price. Either positive or
negative information may be material.
YOU MAY BE SUBJECT TO ADDITIONAL LEGAL RESTRICTIONS AND REQUIREMENTS. CONTACT
THE COMPANY'S LEGAL COUNSEL WITH ANY QUESTIONS.
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