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EXHIBIT 10.83
FUTURELINK CORP.
XXXXXX X. XXXXXX YEAR 2000 STOCK OPTION PLAN AND AGREEMENT
THIS STOCK OPTION PLAN AND AGREEMENT (the "Agreement") by and between
FUTURELINK CORP., a Delaware corporation (the "Company"), and XXXXXX X. XXXXXX
("Employee") is entered into effective as of the 4th day of December, 2000.
RECITALS
1. Pursuant to that certain Employment Agreement dated as of December 4,
2000 by and between the Company and Employee (the "Employment Agreement"), and
as an inducement to Employee to enter into the Employment Agreement, the Company
has agreed to grant Employee options to purchase an aggregate of up to 2,700,000
shares of the Company's common stock;
2. Of such options, options to purchase 500,000 have been granted to
Employee pursuant to the Company's Second Amended and Restated Stock Option Plan
(the "Plan") and those options are governed by the terms and conditions thereof
and a separate option agreement evidencing such grant;
3. The Company desires to fulfill it obligations to grant Employee
options to purchase the remaining 2,200,000 shares as provided for in the
Employment Agreement by granting such options pursuant to this Agreement; and
4. The parties desire to set forth the terms and conditions governing
the options granted hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants to Employee the right to purchase up
to 2,200,000 shares of the Company's common stock at a price of $0.8125 per
share, on the terms and conditions set forth herein. The options granted
hereunder are not intended to qualify as incentive stock options under Section
422 of the Internal Revenue Code, as amended, and are not granted pursuant to
the Plan. Employee agrees that Employee and any other person who may be entitled
hereunder to exercise these options shall be bound by all terms and conditions
of this Agreement.
This Agreement and the grant of the options herein shall not be
effective unless and until Employee commences full-time employment with the
Company pursuant to the terms of the Employment Agreement. If Employee does not
commence full-time employment with the Company pursuant to the terms of the
Employment Agreement, this Agreement and the options granted hereunder shall be
null and void, and the parties hereto shall be deemed to have no rights or
obligations whatsoever under this Agreement.
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2. Vesting. Except as specifically set forth in Section 3 hereof, and
provided that Employee continues to be employed by the Company at such times,
the options granted herein shall vest and become exercisable at the following
times and in the following amounts:
(a) options to purchase 1,500,000 shares of the Company's common
stock shall vest in equal installments of 187,500 shares on the first day of
each calendar quarter for the eight (8) consecutive calendar quarters beginning
on January 1, 2001;
(b) options to purchase 500,000 shares of the Company's common stock
shall vest on January 1, 2003; and
(c) options to purchase 200,000 shares of the Company's common stock
shall vest on January 1, 2004; provided, however, that if the Company has
achieved certain corporate performance objectives by December 31, 2001, which
objectives shall be established by Employee and the Company's board of directors
prior to January 1, 2001, then the options to purchase such 200,000 shares shall
vest on December 31, 2001. The Company's board of directors in its sole and
absolute discretion shall determine whether or not such performance objectives
are achieved, and such determination shall be made within ninety (90) days after
December 31, 2001.
3. Termination of Employment.
(a) Termination by Reason of Employee's Death or Disability. If
Employee's employment is terminated by Employee's death or "disability" (as such
term is defined in the Company's long-term disability policy), Employee or
Employee's estate, as the case may be, shall have the right, for a period of six
(6) months following such death or disability, to exercise this option, but only
with respect to the number of shares for which the option was exercisable on the
date of Employee's death or disability and to the extent not previously
exercised.
(b) Termination by Employee. If Employee voluntarily terminates his
employment with the Company, other than as set forth in paragraph (e)(ii) of
this Section 3, this Agreement and all rights granted hereunder shall terminate
as of the date of such voluntary termination.
(c) Termination for Cause. If the Company terminates Employee's
employment with the Company for "Cause" (as defined in the Employment
Agreement), this Agreement and all rights granted hereunder shall terminate
immediately as of the date of such termination.
(d) Termination Without Cause. In the event the Company terminates
Employee's employment without "Cause" (as such term is defined in the Employment
Agreement), and other than as a result of a Change of Control as set forth in
paragraph (e)(i) of this Section 3, then Employee shall have the right, for a
period of ninety (90) days commencing with the Company Termination Date (as
defined in the Employment Agreement), to exercise all options that were vested
as of such Company
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Termination Date, to the extent such options have not previously been exercised.
In the event Employee executes a release in a form satisfactory to Company, as
required by Section 4.1 of the Employment Agreement, forever releasing and
discharging the Company, its officers, directors, employees, agents and
representatives from any and all obligations to pay any further amounts or
benefits to Employee in connection with his employment or the termination
thereof, then all options that were scheduled to vest within twelve (12) months
following the Company Termination Date shall accelerate and become immediately
exercisable.
(e) Termination Upon Change of Control. Upon a Change of Control (as
such term is defined in Section 5.1 of the Employment Agreement), and the
occurrence of either of the events set forth in subparagraphs (a) or (b) of
Section 5.1 of the Employment Agreement, then the vesting of all options granted
pursuant to this Agreement shall accelerate, regardless of whether the vesting
requirements set forth herein have been satisfied, and Employee shall have the
right, for a period of ninety (90) days following the termination of Employee's
employment, to exercise this option with respect to all shares, to the extent
not previously exercised. This Agreement and all rights granted hereunder shall
terminate and otherwise be extinguished on the 91st day following such
termination.
(f) Termination for Any Other Reason. If Employee's employment is
terminated for any reason other than as set forth above, this Agreement and all
rights granted hereunder shall terminate as of the date of such termination.
4. Exercise. This option may be exercised in whole or in part on the
terms and conditions contained herein by Employee giving the Company ten (10)
days' prior written notice of Employee's election to exercise, which notice
shall specify the number of shares to be purchased and the price to be paid
therefor, and by delivering cash or check in the amount of the aggregate
purchase price payable to the Company.
5. Effect of Exercise. Upon the exercise of all or any part of these
options, the number of shares of common stock subject to the options granted
pursuant to this Agreement shall be reduced by the number of shares with respect
to which such exercise is made.
6. Expiration. The options granted hereunder shall expire, to the extent
not previously exercised or earlier terminated pursuant to Section 3 hereof,
upon the tenth (10th) anniversary of the date the option was granted.
7. Transferability. This option shall be transferable only by will or by
the laws of descent and distribution to the estate (or other personal
representative) of Employee and shall be exercisable during Employee's lifetime
only by Employee. Except as otherwise provided herein, any attempt at
alienation, assignment, pledge, hypothecation, transfer, sale, attachment,
execution or similar process, whether voluntary or involuntary, with respect to
all or any part of this option or any right under this Agreement, shall be null
and void.
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8. Withholding Requirements. In the event the Company determines that it
is required to withhold state or federal income taxes as a result of the
exercise of these options, Employee shall be required, as a condition to the
exercise hereof, to make arrangements satisfactory to the Company to enable it
to satisfy such withholding requirements.
9. Rights as a Stockholder. Employee, or any permitted transferee of
Employee, shall have no rights as a stockholder with respect to any shares
covered by these options until the date of the issuance of a stock certificate
for such shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property), distributions or
other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 10 of this Agreement. This
Agreement shall not confer upon Employee any right of continued employment by
the Company or interfere in any way in the Company's right to terminate
Employee.
10. Recapitalization. The number of shares of common stock covered by
this option and the exercise price thereof shall be proportionately adjusted for
any increase or decrease in the number of issued shares of common stock
resulting from a subdivision or consolidation of such shares or the payment of a
stock dividend (but only of common stock) or any other increase or decrease in
the number of issued shares of common stock effected without receipt of
consideration by the Company. If the Company is the surviving corporation in any
merger or consolidation, this option shall pertain and apply to the securities
to which a holder of the number of shares of common stock subject to the option
would have been entitled. The foregoing adjustments shall be made by the
Company's board of directors, whose determination shall be conclusive and
binding on the Company and Employee.
11. Securities Act and Other Regulatory Requirements. This option is not
exercisable, in whole or in part, and the Company is not obligated to sell any
shares of the Company's common stock subject to this option, if such exercise or
sale, in the opinion of counsel for the Company, would violate the Securities
Act of 1933 (the "Securities Act") (or any other federal or state statutes
having similar requirements) as it may be in effect at that time. Employee
acknowledges and agrees that the options granted to Employee pursuant to this
Agreement are being acquired for investment purposes only and not with a view to
any public distribution thereof. The certificates evidencing any shares issued
pursuant to these options shall bear such restrictive legends as required by
federal or state law. Employee agrees not to offer to sell or otherwise dispose
of the shares of the Company's common stock acquired upon the exercise of these
options in violation of the registration requirements of the Securities Act or
any applicable securities laws.
12. Notices. Any notice or other communication required or permitted
hereunder or by law shall be validly given or made only if in writing and
delivered in person to an officer or duly authorized representative of the other
party, or deposited in the United States mail, duly certified or registered,
return receipt requested, postage prepaid, and addressed to the party to whom
intended. If sent to the Company, it shall be
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addressed in care of the General Counsel, FutureLink Corp., 0 Xxxxx Xxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, and if sent to Employee, it shall be
addressed to Employee's address on file with the Company on the date of such
notice. If sent by mail, notice shall be deemed given two days after deposit of
such notice in the mail and in accordance with this section. Any party may from
time to time, by written notice to the other, designate a different address for
notice which shall be substituted for that specified above.
13. Choice of Law; Counterparts. This Agreement, and all rights and
obligations hereunder, shall be governed by the laws of the State of California.
This Agreement may be executed in one or more counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
14. Arbitration; Venue. The parties hereto agree that any disputes or
controversies relating to or arising out of this Agreement shall be resolved
exclusively by arbitration, in accordance with the procedures set forth in
Section 10.1 of the Employment Agreement. The venue for any such proceeding
shall be as set forth in Section 10.5 of the Employment Agreement.
15. Successor. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs,
beneficiaries, executors and administrators.
16. Paragraph Headings; Employment. Paragraph headings are for
convenience only and are not part of the context. This Agreement shall not
obligate the Company or any affiliate to employ Employee for any period of time,
nor does this Agreement constitute a contract or agreement for employment.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
FUTURELINK CORP.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Chairman
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EMPLOYEE:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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