Exhibit 10.18
Non Statutory Stock Option Agreement
AGREEMENT (this "Agreement") entered into as of the ____ day of
__________________, by and between Orbcomm Inc., a Delaware corporation (the
"Company"), and the undersigned director, employee, independent director or
other person having a unique relationship with the Company or any of its
Affiliates (the "Participant").
WHEREAS, pursuant to the Orbcomm Inc. Stock Option Plan (the "Plan"),
the Company desires to grant to the Participant an option to acquire shares of
Common Stock, par value $0.001 per share, of the Company ("Shares"); and
WHEREAS, the Participant desires to accept such option subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Participant,
intending to be legally bound, hereby agree as follows:
1. Grant of Option. On the terms and conditions hereinafter set forth,
the Company hereby grants to the Participant an option to purchase all (or any
part) of ______ Shares (the "Option"). This Option is granted on
______________________, ___________________ (the "Grant Date"). The Option is
intended to be a Non-Statutory Stock Option. This Option is granted pursuant to
the Plan, and is governed by the terms and conditions of the Plan. All defined
terms used herein, unless specifically defined in this Agreement, have the
meanings assigned to them in the Plan.
2. Exercise Price. The exercise price (the "Exercise Price") for the
Shares covered by the Option will be $_______.
3. Time of Exercise of Option.
(a) The Option will become exercisable as follows:
(i) [ ]% will be exercisable immediately;
(ii) the remaining [ ]% will be exercisable at the rate of 6.25%
per calendar quarter as of the last day of the calendar quarter coincident with
or immediately following the Grant Date, until 100% of the Option will be
exercisable on the last day of the calendar quarter immediately preceding or
coincident with the fourth anniversary of the Grant Date.
ORBCOMM INC. STOCK OPTION PLAN
(b) Notwithstanding any other provision of this Agreement to the
contrary, the Option will become immediately fully exercisable on the date of
any Change of Control (as defined in the Plan), without regard to the
satisfaction of any time-based criteria.
4. Term of Options.
(a) The Option will expire 10 years from the date hereof, but will be
subject to earlier termination as provided below.
(b) Upon ceasing to be a director, if the Participant was a director,
an Employee, if the Participant was an Employee, or an independent contractor or
other person with a unique relationship with the Company or any of its
Affiliates, if the Participant was an independent contractor or a person with a
unique relationship with the Company or any of its Affiliates:
(i) the unexercisable portion of the Option hereby granted will
terminate on the date of such cessation.
(ii) the exercisable portion of the Option hereby granted will be
treated as follows:
(A) Subject in each case to the repurchase rights described
in Paragraph 5 below and the Shareholders' Agreement (defined below): (x) if the
Participant is a director and either the Company terminates the Participant's
service as a director for any reason except for Cause or the Participant
voluntarily ceases to be a director; (y) if the Participant is an Employee and
either the Company terminates the Participant's employment for any reason except
for Cause or the Participant voluntarily terminates employment; or (z) if the
Participant is an independent contractor or other person with a unique
relationship to the Company or any of its Affiliates and either the Company
terminates its independent contractor relationship or other unique relationship
with the Participant for any reason except for Cause or the Participant
terminates its independent contractor relationship or other unique relationship
with the Company, the exercisable portion of the Option hereby granted will be
exercisable for thirty days following the Participant's ceasing to be a
director, terminating employment or terminating the independent contractor
relationship or other unique relationship, whichever applies, unless the
cessation as a director, the termination of employment or the termination of the
independent contractor relationship or other unique relationship is because the
Participant in Disabled or because the Participant dies, in which case, such
Participant, or such Participant's personal representative, respectively, may
exercise the exercisable portion of the Option hereby granted for three months
following the cessation
ORBCOMM INC. STOCK OPTION PLAN
as director, termination of employment or the termination of the independent
contractor relationship or other unique relationship because the Participant is
Disabled or has died.
(B) If the Participant is terminated as a director by the
Company for Cause, if the Participant is terminated by the Company for Cause, or
if the Participant's relationship as an independent contractor or other unique
relationship is terminated by the Company for Cause, whichever applies, the
exercisable portion of the Option hereby granted will terminate on the date of
such termination.
(iii) For purposes of this Agreement, "Cause" means the
definition thereof contained in such Participant's employment agreement, if
any, with the Company or any subsidiary of the Company, as the same may be
amended from time to time and in effect or in the event that no definition
is so provided, any of the following: (A) the Participant's continued
failure, whether willful, intentional or negligent, to perform
substantially his duties as a director, an Employee or an independent
contractor or other person with a unique relationship with the Company and
any of its Affiliates, whichever applies (other than as a result of being
Disabled); (B) dishonesty or gross negligence in the performance of the
Participant's duties as a director, an Employee or an independent
contractor or other person with a unique relationship with the Company or
any of its Affiliates, whichever applies; (C) an act or acts on the
Participant's part constituting a felony under the laws of the United
States or any state thereof; (D) any willful act or omission on the
Participant's part which is materially injurious to the financial condition
or business reputation of the Company or any of its subsidiaries; or (E)
the Participant has breached any provision or covenant contained in (x) the
Participant's employment agreement or the independent contractor agreement
with the Company, whichever applies, (y) the Shareholders Agreement among
the Company, the Participant, and the other signatories thereto, if it has
been executed by the Participant or (z) any other agreement between the
Participant and the Company.
(iv) For purposes of this Agreement, "Disabled" means, the
Employee is terminated due to "Disability" within the meaning of Code
Section 22(e).
5. Repurchase Rights.
(a) The Company has the right to repurchase the Shares acquired upon
the exercise of Options for a period of three months after the Participant
ceases to be a director, an Employee or an independent contractor or other
person with a unique relationship to the Company or any of its Affiliates,
whichever applies, or three months
ORBCOMM INC. STOCK OPTION PLAN
after the Shares for which the Option is exercised or acquired, whichever is
later. The purchase price per Share payable is as follows:
(i) if the Participant ceases to be a director, an Employee or an
independent contractor or a person with a unique relationship with the Company
or any of its Affiliates, whichever applies, because the Participant was
terminated by the Company for Cause, the amount equal to the lesser of: (A) the
Fair Market value of the Shares at the time of the termination; and (B) the
Exercise Price;
(ii) if the Participant ceases to be a director, an Employee or
an independent contactor or other person with a unique relationship with the
Company or any of its Affiliates, whichever applies, because the Participant
voluntarily terminates as a director, voluntarily terminates employment or
voluntarily terminates the independent contractor relationship or other unique
relationship and such termination occurs prior to expiration of the Holding
Period (as defined in Section 5(b) below) for the Shares acquired through the
exercise of the exercisable portion of the Option, the amount equal to the
lesser of: (A) the Fair Market Value of the Shares at the time of the
termination; and (B) the Exercise Price;
(iii) if the Participant ceases to be a director, an Employee or
an independent contractor or other person with a unique relationship with the
Company or any of its Affiliates, whichever applies, because the Participant
voluntarily terminates as a director, voluntarily terminates employment or
voluntarily terminates the independent contractor relationship or other unique
relationship and such termination occurs after the expiration of the Holding
Period (as defined in Section 5(b) below) for the Shares acquired through the
exercise of the exercisable portion of the Option, the amount equal to the
greater of: (A) the Fair Market Value of the Shares at the time of the
termination; and (B) the Exercise Price;
(ii) if the Participant ceases to be a director, an Employee or
an independent contractor or other person with a unique relationship with the
Company or any of its Affiliates, whichever applies, because the Participant
terminates as a director, terminates employment or terminates the independent
contractor relationship or other unique relationship, whichever applies, for any
other reason (death, termination without Cause or because the Participant is
Disabled) the amount equal to the greater of: (A) the Fair Market Value of the
Shares at the time of the termination; and (B) the Exercise Price.
(b) For purposes of this Agreement, the Holding Period, is the third
anniversary of the earlier of: (i) the date on which such Shares obtained
through the exercise of the exercisable portion of the Option were first
exercised; and or (ii) the date
ORBCOMM INC. STOCK OPTION PLAN
on which such Shares obtained through the exercise of the exercisable portion of
the Option were first exercisable.
6. Manner of Exercise of Option. The Option may be exercised by
delivery, via first class mail, interoffice mail, fax or electronic mail of a
Notice of Option Exercise and related forms to the Company stating the number of
Shares with respect to which the Option is being exercised and accompanied by
payment of an amount equal to the Exercise Price multiplied by the number of
Shares being purchased pursuant to the Option (the "Total Exercise Cost") in
cash or by check, bank draft or money order payable to the order of the Company
or, subsequent to an Initial Public Offering, (i) through the delivery to the
Company of Shares of Common Stock with an aggregate Fair Market Value on the
date of exercise equal to the Total Exercise Cost, subject to such limitations
and prohibitions as the Committee may adopt from time to time or (ii) through
the delivery to the Company of an Authorization for Exercise of Options
"Cashless" Exercise Form with irrevocable instructions to a broker to deliver
promptly to the Company an amount equal to the Total Exercise Cost, subject to
such limitations as the Committee may adopt from time to time or by any
combination of the above methods of payment.
7. Non-Transferability. The right of the Participant to exercise the
Option (as and when exercisable) may not be assigned or transferred by the
Participant other than by will or the laws of descent and distribution. The
Option may be exercised and the Shares may be purchased during the lifetime of
the Participant only by the Participant (or the Participant's legal
representative in the event that the Participant's employment is terminated due
to becoming "Disabled" within the meaning of Section 4(b)(iv) of this
Agreement). Any attempted assignment or transfer, except as hereinabove
provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition
contrary to the provisions hereof, or any levy of execution, attachment, trustee
process or similar process, whether legal or equitable, upon the Option, will in
each instance be null and void.
8. Representation Letter and Investment Legend.
(a) In the event that for any reason the issuance of the Shares to be
issued upon exercise of an exercisable Option will not be effectively registered
under the Securities Act of 1933, as amended (the "1933 Act"), upon any date on
which the Option is exercised, the Participant (or the person exercising the
Option pursuant to Section 6) will give a written representation to the Company
in the form attached hereto as Exhibit A, and the Company will place the legend
described in Exhibit A, upon any certificate for the Shares issued by reason of
such exercise.
ORBCOMM INC. STOCK OPTION PLAN
(b) The Company will be under no obligation to qualify Shares or to
cause a registration statement or a post-effective amendment to any registration
statement to be prepared for the purpose of covering the issuance of Shares.
9. Adjustments. Subject to Section 8 of the Plan, in the event of any
change in the outstanding Shares by reason of an acquisition, spin-off or
reclassification, recapitalization or merger, combination or exchange of Shares
or other corporate exchange, Change of Control or similar event, or as required
under any Option Agreement, the Committee may adjust appropriately the number or
kind of Shares or securities subject to the Plan and available for or covered by
Grants and Share prices related to outstanding Grants and make such other
revisions to outstanding Grants as it deems are equitably required.
10. No Special Rights to Remain a Director, No Special Employment
Rights and No Special Rights to Remain an Independent Contractor or to Maintain
a Unique Relationship. Nothing contained in this Agreement will be construed or
deemed by any person under any circumstances to bind the Company or any of its
subsidiaries to continue the Participant as a director of the Company, to
continue employment of the Participant, to continue the Participant as an
independent contractor or to continue a unique relationship with the Company or
any of its Affiliates for the period within which this Option may vest or for
any other period.
11. Rights as a Shareholder. The Participant will have no rights as a
shareholder with respect to any Shares which may be purchased upon the vesting
of this Option unless and until a certificate or certificates representing such
Shares are duly issued and delivered to the Participant. If at any time during
the term of the Option, the Company will be advised by its counsel that the
Shares are required to be registered under the Securities Act or under
applicable state securities laws, or that delivery of the Shares must be
accompanied or preceded by a prospectus meeting the requirements of such laws,
delivery of Shares by the Company may be deferred until a registration is
effective or a prospectus is available or an appropriate exemption from
registration is secured. Prior to an Initial Public Offering, the Participant
will be required to enter into a shareholder agreement with the Company
prohibiting the sale, transfer or assignment of the Shares without first
offering the Shares to the Company and/or certain other stockholders, on a form
provided by the Company, upon the exercise of any Option under the Plan.
12. Withholding Taxes. The Participant hereby agrees, as a condition
to any exercise of the Option, to provide to the Company an amount sufficient to
satisfy its obligation to withhold certain federal, state and local taxes
arising by reason of such exercise (the "Withholding Amount"), if any, by (a)
authorizing the Company to withhold the Withholding Amount from the
Participant's cash compensation, if any, or
ORBCOMM INC. STOCK OPTION PLAN
(b) remitting the Withholding Amount to the Company in cash; provided that, to
the extent that the Withholding Amount is not provided by one or a combination
of such methods, the Company may at its election withhold from the Shares
delivered upon exercise of the Option that number of Shares having a Fair Market
Value equal to the Withholding Amount.
13. Execution of Shareholders Agreement. The Participant acknowledges
that, in connection with his prior or future purchase of Shares of the Company,
he has previously executed and delivered that certain Shareholders Agreement,
dated the date hereof, by and among the Company and the shareholders of the
Company named therein (the "Shareholders Agreement"). The Participant further
agrees that all Shares acquired by him upon exercise of the Option will be
subject to the terms and conditions of the Shareholders Agreement, as the same
may have been amended or modified in accordance with its terms.
14. Lock-Up Agreements. The Participant agrees that in the event of an
Initial Public Offering or any other offering of any securities of the Company,
if the Company so requests, the Participant will enter into an agreement on
terms and conditions satisfactory to the Company with the relevant underwriters
of such transaction that provides that the Participant may not directly or
indirectly offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer the Shares or any
other shares of the Company's Common Stock or securities convertible into or
exchangeable or exercisable for such shares owned by the Participant, or enter
into any swap or other arrangement that transfers, in whole or in part, the
economic consequences of ownership of any such shares, for a period of up to one
year after the date of the relevant prospectus.
15. Delivery of Certificates. The Participant will have no interest in
the Shares unless and until certificates for the Shares are issued following
exercise of the Option.
*********
[Signatures on Following Page]
ORBCOMM INC. STOCK OPTION PLAN
OPTION AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed, by its officer thereunto duly authorized, and the Participant has
executed this Agreement, all as of the day and year first above written.
ORBCOMM INC. PARTICIPANT
By:
--------------------------------- ----------------------------------------
Title:
------------------------------ Address:
-------------------------------
------------------------------------
(print name) -------------------------------
Facsimile Number:
----------------------
----------------------------------------
Social Security Number
Email Address:
-------------------------
EXHIBIT A
TO: ORBCOMM INC.
The undersigned hereby irrevocably exercises the right to purchase
______________ of the shares of Common Stock, par value $0.001 per share
("Common Stock") of Orbcomm Inc., a Delaware corporation (the "Company"),
evidenced by the attached Option, and herewith makes payment of the Exercise
Price with respect to such shares in full, all in accordance with the conditions
and provisions of said Option.
1. The undersigned hereby represents and warrants to and agrees with
the Company as follows:
(a) The undersigned understands and acknowledges that an investment in
the Common Stock issuable upon exercise of this Option involves a high degree of
risk and that there are limitations on the liquidity of the Common Stock
issuable upon exercise of this Option. The undersigned is able to bear the
economic risk of an investment in the Common Stock issuable upon exercise of
this Option. The undersigned has adequate means of providing for the
undersigned's current needs and contingencies; is able to afford to hold the
Common Stock issuable upon exercise of this Option for an indefinite period; and
has such knowledge and experience in financial and business matters that the
undersigned is capable of evaluating the merits and risks of the investment in
the Common Stock issuable upon exercise of this Option;
(b) The undersigned is acquiring the Common Stock issuable upon
exercise of this Option for its own account for investment and not as a nominee
and not with a present view to the distribution thereof in violation of the
Securities Act of 1933, as amended (the "1933 Act"). The undersigned understands
that the undersigned must bear the economic risk of this investment indefinitely
unless such shares are registered pursuant to the 1933 Act and any applicable
state securities laws, or an exemption from such registration is available. The
undersigned has no plan or intention to sell the shares of Common Stock issuable
upon exercise of this Option at any predetermined time, and has made no
predetermined arrangements to sell such shares;
(c) The undersigned will not make any sale, transfer or other
disposition of the shares of Common Stock issuable upon exercise of this Option
in violation of (1) the 1933 Act, the Securities Exchange Act of 1934, as
amended, any other applicable Federal or state securities laws or the rules and
regulations of the Securities and Exchange Commission or of any state securities
commissions or similar
ORBCOMM INC. STOCK OPTION PLAN
state authorities promulgated under any of the foregoing, or (2) any applicable
securities laws of jurisdictions outside the United States and the rules and
regulations thereunder.
2. The undersigned agrees not to offer, sell, transfer or otherwise
dispose of any of the Common Stock obtained on exercise of the Option, except in
accordance with the provisions of the Option, and consents that the following
legend may be affixed to the stock certificates for the Common Stock hereby
subscribed for, if such legend is applicable:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), or any provincial
or state securities law, and may not be sold, transferred, pledged,
hypothecated or otherwise disposed of until either (i) a registration
statement under the 1933 Act and applicable provincial or state
securities laws shall have become effective with regard thereto, or
(ii) an exemption from registration under the 1993 Act or applicable
provincial or state securities laws is available in connection with
such offer, sale or transfer."
3. The undersigned requests that stock certificates for such shares be
issued, and a new Option representing any unexercised portion hereof be issued,
pursuant to the Option in the name of the registered holder and delivered to the
undersigned at the address set forth below:
Dated:
------------------------------
------------------------------
Signature of Registered Holder
------------------------------
Name of Registered Holder (Print)
