Verecloud, Inc. 2009 Equity Incentive Plan Incentive Stock Option Agreement
Exhibit 10.2
Verecloud,
Inc. 2009 Equity Incentive Plan
PARTICIPANT:
Xxxxxxx X. Xxxx III
DATE OF
GRANT: June 22, 2010
THIS
AGREEMENT (this “Agreement”) is entered into by and between Verecloud, Inc., a
Nevada corporation (the “Company”), and the above named Participant
(“Participant”), who is an Employee of the Company or an Affiliate
thereof.
The
Company and Participant agree as follows:
1. Precedence
of Plan. This
Agreement is subject to and shall be construed in accordance with the terms and
conditions of the Verecloud, Inc. 2009 Equity Incentive Plan (the “Plan”), as
now or hereinafter in effect. Any capitalized terms that are used in
this Agreement without being defined and that are defined in the Plan shall have
the meaning specified in the Plan.
2. Grant
of Option. Participant is hereby granted an Incentive Stock
Option, within the meaning of Code Section 422 (the “Option”), to purchase
Common Stock of the Company pursuant to the Plan. The number of
shares as to which the Option is granted, the purchase price per share, and the
expiration date of such Option are set forth below:
(a) Number of
Shares Subject to Option: 5,700,000
(b) Purchase
Price per Share: $0.02
(c) Expiration
Date:* June 21, 2020
(d) Vesting
Date, Event, or Schedule: Options vest evenly on the last day of each
fiscal quarter and based on a three year period. The initial vesting
occurs on September 30, 2010.
(e) Vesting
Schedule:
| ● | Sept 30, 2010 | 475,000 | ||
| ● | Dec 31, 2010 | 475,000 | ||
| ● | Mar 31, 2011 | 475,000 | ||
| ● | June 30, 2011 | 475,000 | ||
| ● | Sept 30, 2011 | 475,000 | ||
| ● | Dec 31, 2011 | 475,000 | ||
| ● | Mar 31, 2012 | 475,000 | ||
| ● | June 30, 2012 | 475,000 | ||
| ● | Sept 30, 2012 | 475,000 | ||
| ● | Dec 31, 2012 | 475,000 | ||
| ● | Mar 31, 2013 | 475,000 | ||
| ● | June 30, 2013 | 475,000 |
*Unless
sooner terminated as provided in the Plan, the Option shall expire and terminate
on the expiration date, and in no event shall the Option be exercisable after
that date.
3. Time
of Exercise. The Option granted hereby shall become vested in
and exercisable by Participant in installments, on the dates and subject to the
conditions set forth in the vesting schedule above; provided, however, that
Participant must have been in Continuous Service from the date of grant of the
Option until the date specified in the vesting schedule or until the conditions
specified in the vesting schedule have been satisfied.
4. Manner
of Exercise. Except as provided in this Agreement, the Option
shall be exercisable, in whole or in part, from time to time, in the manner
determined by the Company as provided in Section 7.2 of the
Plan. The Company may require, as a condition to exercise,
execution and submission of an Exercise Agreement in such form as may be
provided by the Company (the “Exercise Agreement”), which shall state the
election to exercise the Option, the elected exercise date and the number of
shares as to which the Option is to be exercised and be accompanied by payment
in full. The Exercise Agreement shall be signed by Participant and
shall be delivered in person, electronically or by mail to the Company, and
shall be deemed received by the Company when actually received by the
representative of the Administrator if delivered in person or electronically,
and as of the third calendar day following dispatch if mailed or the date of
actual receipt by the Company if earlier.
5. Company’s
Right to Repurchase the Stock Upon Termination of Continuous Service.
(a) The
Company shall have the right to purchase all or any part of the shares of Stock
held by the Participant, upon the terms and conditions provided herein, in the
event that (a) the Participant’s Continuous Service with the Company is
terminated for any reason (the “Participant’s Departure”); or (b) the Stock
was acquired from the Company after the Participant’s Departure, as provided in
the Plan (a “Post-Termination Acquisition”).
(b) The
Company may exercise its right to purchase Stock held by the Participant by
providing written notice (a “Notice of Repurchase”) of such intention to the
Participant, stating the time, manner, terms and conditions of the repurchase in
accordance with this section. Such notice must be given within 180
days following the Participant’s Departure or the Post-Termination
Acquisition.
(c) The
purchase price per share for the shares of Stock that the Company elects to
purchase shall be the Stock’s then current Fair Market Value; provided that if
the Participant’s Continuous Service with the Company ends due to the
Participant’s termination by the Company for Cause, the purchase price per share
for the shares of Stock that the Company elects to purchase shall be the
purchase price paid for such shares of Stock by the Participant.
(d) A
purchase and sale required pursuant to this section shall take place at a
closing at a time and place designated by the Company; provided, however, that
the time must be within 90 days of the date of the Notice of
Repurchase. At the closing, the Participant shall transfer the Stock
to the Company free and clear of all liens and encumbrances and in accordance
with the terms of this Agreement. In return, the Company shall pay
the Participant the purchase price in cash or immediately available funds, or,
at its election, the Company may pay the Stockholder 20% of the purchase price
in cash or immediately available funds and the remaining 80% by execution and
delivery of a promissory note from the Company (a “Promissory Note”), bearing
interest at the applicable federal rate in effect as of the date of
closing. The Promissory Note shall provide for payment in four equal
annual installments of principal and interest on the first, second, third and
fourth anniversaries of the closing date. The Promissory Note shall
be prepayable, without penalty, in whole or in part, with prepayments applied to
the last installment or installments coming due.
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6. Nontransferability
of Option. The Option may not be pledged, encumbered, or
hypothecated to or in favor of any party other than the Company or an Affiliate,
and shall not be subject to any lien, obligation, or liability of such
Participant to any other party other than the Company or an
Affiliate. No Award shall be assigned, transferred, or otherwise
disposed of by a Participant for value other than by will or the laws of descent
and distribution. Any permitted transfer shall be subject to the
condition that the Plan Administrator receives evidence satisfactory to it that
the transfer is being made for estate or tax planning or securities compliance
purposes and on a basis consistent with the Company’s lawful issue of
securities.
7. General
Provisions.
(a) Withholding. Participant
shall reimburse the Company, in cash or by certified or bank cashier’s check,
for any federal, state or local taxes required by law to be withheld with
respect to the exercise of the Option or resulting from a disqualifying
disposition described in Code Section 422(a). The Company shall
have the right to deduct from any salary or other payments to be made to
Participant any federal, state or local taxes required by law to be so
withheld. The Company’s obligation to deliver a certificate or other
proof representing the Common Stock acquired upon exercise of the Option is
subject to the payment by Participant of any applicable federal, state and local
withholding tax.
(b) Amendment. Subject
to the terms and conditions of the Plan, the Plan Administrator may modify,
extend or renew the Option, or accept the surrender of the Option to the extent
not theretofore exercised and authorize the granting of new Options in
substitution therefore, except that no such action shall diminish or impair the
rights under the Option without the consent of Participant.
(c) Receipt
of Plan. By entering into this Agreement, Participant
acknowledges (i) that he or she has received and read a copy of the Plan, and
(ii) that this Agreement is subject to and shall be construed in accordance with
the terms and conditions of the Plan, as now or hereinafter in
effect.
(d) Legends. Certificates
representing Common Stock acquired upon exercise of this Option may contain such
legends and transfer restrictions as the Company shall deem reasonably necessary
or desirable, including, without limitation, legends restricting transfer of the
Common Stock until there has been compliance with federal and state securities
laws and until Participant or any other holder of the Common Stock has paid the
Company such amounts as may be necessary in order to satisfy any withholding tax
liability of the Company resulting from a disqualifying disposition described in
Code Section 422(a).
(e) Not an
Employment Contract. This Agreement is not an employment
contract and nothing in this Agreement shall be deemed to create in any way
whatsoever any obligation on the part of Participant to remain in the Continuous
Service of the Company, or of the Company to continue Participant in the
Continuous Service of the Company.
(f) Effect
on Employee Benefits. Participant agrees that the Option will
constitute special incentive compensation that will not be taken into account as
“salary” or “compensation” or “bonus” in determining the amount of any payment
under any pension, retirement, profit sharing or other remuneration plan of the
Company unless so provided in such plan.
(g) Confidentiality
of Information. By entering into this Agreement, Participant
acknowledges that the information regarding the grant of Options contained
herein is confidential and may not be shared with anyone other than
Participant’s immediate family and personal financial advisor.
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(h) Specific
Enforcement. Because of the unique value of the Common Stock,
in addition to any other remedies that the Company may have upon the breach of
the agreements contained herein, the obligations of Participant shall be
specifically enforceable.
(i) Costs of
Enforcement. In any action at law or in equity to enforce any
of the provisions or rights under this Agreement, the unsuccessful party of such
litigation, as determined by any court of competent jurisdiction in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys’ fees incurred therein by such party or
parties (including without limitation such costs, expenses and fees on any
appeals), and if such successful party shall recover judgment in any action or
proceeding, such costs, expenses and attorneys’ fees shall be included as part
of the judgment.
(j) Further
Action. The parties agree to execute such further instruments
and to take such further action as reasonably may be necessary to carry out the
intent of this Agreement.
(k)
Interpretation. The
interpretations and constructions of any provision of and determinations on any
question arising under the Plan or this Agreement shall be made by the Plan
Administrator, and all such interpretations, constructions and determinations
shall be final and conclusive as to all parties. This Agreement, as
issued pursuant to the Plan, constitutes the entire agreement between the
parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations and understandings. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision hereof. This
Agreement may be executed in counterparts, all of which shall be deemed to be
one and the same instrument, and it shall be sufficient for each party to have
executed at least one, but not necessarily the same, counterpart. The
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement in any
way.
(l) Assignment. This
Agreement shall be binding upon the parties and their respective legal
representatives, beneficiaries, successors and assigns.
(m)
Notices. All
notices or other communications that are required to be given or may be given to
either party pursuant to the terms of this Agreement shall be in writing and
shall be delivered personally or by registered or certified mail, postage
prepaid, to the address of the parties as set forth following the signature of
such party. Notice shall be deemed given on the date of delivery in
the case of personal delivery or on the delivery or refusal date as specified on
the return receipt in the case of registered or certified
mail. Either party may change its address for such communications by
giving notice thereof to the other party in conformity with this
section.
(n)
Governing
Law and Venue. This Agreement and the rights and obligations
of the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Nevada without regard to conflicts of
laws principles. Resolution of any disputes under this Agreement
shall only be held in courts in Denver, Colorado, and the parties expressly
consent to personal jurisdiction in courts in Denver, Colorado and waive any
objections to such jurisdiction.
*
* * * *
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The
Company, by a duly authorized officer of the Company, and Participant have
executed this Agreement on June 22, 2010, effective as of the date of
grant.
|
|
Participant | ||
| By: | /s/ Xxxx Xxxxxxx | /s/ Xxxxxxx X. Xxxx III | |
| Name: | Xxxx Xxxxxxx | Signature | |
| Title: | Chief Operating Officer | Xxxxxxx X. Xxxx III | |
|
Address:
|
Name | ||
| 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx | Address: 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx | ||
| Number 000 | Xxxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 | ||
| Xxxxxxxxx, Xxxxxxxx 00000 | |||
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