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EXHIBIT 10.3
**OPTIONEE COPY**
XXXXXXXX.XXX, INC.
1997 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into this GRANT DATE ("Date of Grant") between
XxxxXxxx.xxx, Inc., a Washington corporation (the "Company"), and NAME (the
"Optionee").
WHEREAS, the Board of Directors of the Company (the "Board") has approved
and adopted the 1997 Stock Option Plan, as amended (the "Plan"), pursuant to
which the Board is authorized to grant to employees and other selected persons
stock options to purchase common stock, no par value, of the Company (the
"Common Stock");
WHEREAS, the Plan provides for the granting of stock options that either
(i) are intended to qualify as "Incentive Stock Options" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
(ii) do not qualify under Section 422 of the Code ("Non-Qualified Stock
Options");
WHEREAS, the Board has authorized the grant to Optionee of options to
purchase a total of NUMBER OF OPTIONS shares of Common Stock (the "Options"),
which Options are intended to be:
Non-Qualified Stock Options
NOW, THEREFORE, the Company agrees to offer to the Optionee the option to
purchase, upon the terms and conditions set forth herein and in the Plan, NUMBER
OF OPTIONS shares of Common Stock. Capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Plan.
1. Exercise Price. The exercise price of the options shall be PRICE per
share.
2. Limitation on the Number of Shares. If the Options granted hereby are
Incentive Stock Options, the number of shares which may be acquired upon
exercise thereof is subject to the limitations set forth in Section 5(a) of the
Plan.
3. Vesting Schedule. The Options are exercisable in accordance with the
following vesting schedule:
Number of Months Following Start Date Percentage of Total
VEST DATE Option Vested
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0 0.0%
3 0.0%
6 0.0%
9 20.0%
12 6.7%
15 6.7%
18 6.7%
21 6.7%
24 6.7%
27 6.7%
30 6.7%
33 6.7%
36 6.7%
39 6.7%
42 6.7%
45 6.7%
48 6.3%
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XxxxXxxx.xxx, Inc. -- 1997 Stock Option Plan **OPTIONEE COPY**
Stock Option Agreement
Page 2
4. Options not Transferable. This Option may not be transferred,
assigned, pledged or hypothecated in any manner (whether by operation of law or
otherwise) other than by will, by applicable laws of descent and distribution or
(except in the case of an Incentive Stock Option) pursuant to a qualified
domestic relations order, and shall not be subject to execution, attachment or
similar process; provided, however, that if this Option represents a
Non-Qualified Stock Option, such Option is transferable without payment of
consideration to immediate family members of the Optionee or to trusts or
partnerships established exclusively for the benefit of the Optionee and the
Optionee's immediate family members. Upon any attempt to transfer, pledge,
hypothecate or otherwise dispose of any Option or of any right or privilege
conferred by the Plan contrary to the provisions thereof, or upon the sale, levy
or attachment or similar process upon the rights and privileges conferred by the
Plan, such Option shall thereupon terminate and become null and void.
5. Investment Intent. By accepting the option, the Optionee represents
and agrees that none of the shares of Common Stock purchased upon exercise of
the Option will be distributed in violation of applicable federal and state laws
and regulations. In addition, the Company may require, as a condition of
exercising the Options, that the Optionee execute an undertaking, in such a form
as the Company shall reasonably specify, that the Stock is being purchased only
for investment and without any then-present intention to sell or distribute such
shares.
6. Termination of Employment and Options. Vested Options shall terminate,
to the extent not previously exercised, upon the occurrence of the first of the
following events:
(i) Expiration: The expiration of ten (10) years from the Date of Grant
(EXPIRY DATE); except, that the expiration date of any Incentive Stock
Option granted to a greater-than-10 percent (>10%) shareholder of the
Company shall not be later than five (5) years from the Date of Grant.
(ii) Termination Due to Death or Disability: The expiration of one (1) year
from the date of the death of the Optionee or cessation of an Optionee's
employment or contractual relationship by reason of Disability (as defined
in Section 5(g) of the Plan). If an Optionee's employment or contractual
relationship is terminated by death, any Option held by the Optionee shall
be exercisable only by the person or persons to whom such Optionee's rights
under such Option shall pass by the Optionee's will or by the laws of
descent and distribution.
(iii) Termination for Any Other Reason: The expiration of ninety (90) days
from the date of an Optionee's termination of employment or contractual
relationship with the Company or any Related Corporation for any reason
whatsoever other than death or Disability (as defined in Section 5(g) of
the Plan).
Each unvested Option granted pursuant hereto shall terminate immediately upon
termination of the Optionee's employment or contractual relationship with the
Company for any reason whatsoever, including death or Disability unless vesting
is accelerated in accordance with Section 5(f) of the Plan.
7. Stock. In the case of any stock split, stock dividend or like change
in the nature of shares of Stock covered by this Agreement, the number of shares
and exercise price shall be proportionately adjusted as set forth in Section
5(m) of the Plan.
8. Exercise of Option. Options shall be exercisable, in full or in part,
at any time after vesting, until termination; provided, however, that any
Optionee who is subject to the reporting and liability provisions of Section 16
of the Securities and Exchange Act of 1934, as amended, with respect to the
Common Stock shall be precluded from selling or transferring any Common Stock or
other security underlying an Option during the six (6) months immediately
following the grant of that Option. If less than all of the shares included in
the vested portion of any Option are purchased, the remainder may be purchased
at any subsequent time prior to the expiration of the Option term. No portion of
any Option for less than five (5) shares (as adjusted pursuant to Section 5(m)
of the Plan) may be exercised; provided, that if the vested portion of any
Option is less than five (5) shares, it may be exercised with respect to all
shares for which it is vested. Only whole shares may be issued pursuant to an
Option, and to the extent that an Option covers less than one (1) share, it is
unexercisable.
Each exercise of the Option shall be by means of delivery of a notice of
election to exercise (which may
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XxxxXxxx.xxx, Inc. -- 1997 Stock Option Plan **OPTIONEE COPY**
Stock Option Agreement
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be in the form attached hereto as Exhibit A) to the Secretary of the Company at
its principal executive office, specifying the number of shares of Common Stock
to be purchased and accompanied by payment in cash by certified check or
cashier's check in the amount of the full exercise price for the Common Stock to
be purchased. In addition to payment in cash by certified check or cashier's
check, an Optionee or transferee of an Option may pay for all or any portion of
the aggregate exercise price by complying with one or more of the following
alternatives:
(i) by delivering to the Company shares of Common Stock previously held by
such person or by the Company withholding shares of Common Stock otherwise
deliverable pursuant to exercise of the Option, which shares of Common
Stock received or withheld shall have a fair market value at the date of
exercise (as determined by the Plan Administrator) equal to the aggregate
purchase price to be paid by the Optionee upon such exercise; or
(ii) by complying with any other payment mechanism approved by the Plan
Administrator at the time of exercise.
9. Holding Period for Incentive Stock Options. In order to obtain the tax
treatment provided for Incentive Stock Options by Section 422 of the Code, the
shares of Common Stock received upon exercising any Incentive Stock Options
received pursuant to this Agreement must be sold, if at all, after a date which
is later of two (2) years from the date of this agreement is entered into or one
(1) year from the date upon which the Options are exercised. The Optionee agrees
to report sales of such shares prior to the above determined date to the Company
within one (1) business day after such sale is concluded. The Optionee also
agrees to pay to the Company, within five (5) business days after such sale is
concluded, the amount necessary for the Company to satisfy its withholding
requirement required by the Code in the manner specified in Section 5(l)(2) of
the Plan. Nothing in this Section 9 is intended as a representation that Common
Stock may be sold without registration under state and federal securities laws
or an exemption therefrom, or that such registration or exemption will be
available at any specified time.
10. Subject to 1997 Stock Option Plan. The terms of the Options are
subject to the provisions of the Plan, as the same may from time to time be
amended, and any inconsistencies between this Agreement and the Plan, as the
same may be from time to time amended, shall be governed by the provisions of
the Plan, a copy of which has been delivered to the Optionee, and which is
available for inspection at the principal offices of the Company
11. Professional Advice. The acceptance of the Options and the sale of
Common Stock issued pursuant to the exercise of Options may have consequences
under federal and state tax and securities laws which may vary depending upon
the individual circumstances of the Optionee. Accordingly, the Optionee
acknowledges that he or she has been advised to consult his or her personal
legal and tax advisor in connection with this Agreement and his or her dealings
with respect to Options for the Common Stock. Without limiting other matters to
be considered, the Optionee should consider whether upon the exercise of
Options, the Optionee will file an election with the Internal Revenue Service
pursuant to Section 83(b) of the Code.
12. No Employment Relationship. Whether or not any Options are to be
granted under this Plan shall be exclusively within the discretion of the Plan
Administrator, and nothing contained in this Plan shall be construed as giving
any person any right to participate under this Plan. The grant of an Option
shall in no way constitute any form of agreement or understanding binding on the
Company or any Related Company, express or implied, that the Company or any
Related Company will employ or contract with an Optionee for any length of time,
nor shall it interfere in any way with the Company's or, where applicable, a
Related Company's right to terminate Optionee's employment at any time, which
right is hereby reserved.
13. Entire Agreement. This Agreement is the only agreement between the
Optionee and the Company with respect to the Options, and this Agreement and the
Plan supersede all prior and contemporaneous oral and written statements and
representations and contain the entire agreement between the parties with
respect to the Options
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XxxxXxxx.xxx, Inc. -- 1997 Stock Option Plan **OPTIONEE COPY**
Stock Option Agreement
Page 4
14. Notices. Any notice required or permitted to be made or given
hereunder shall be mailed or delivered personally to the addresses set forth
below, or as changed from time to time by written notice to the other:
The Company: XxxxXxxx.xxx, Inc.
00 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
President & CEO
The Optionee: ___________________________
___________________________
___________________________
XXXXXXXX.XXX, INC. OPTIONEE
By: _____________________________ _______________________________
Signature
of NAME
Its: _____________________________ Printed Name
THERE MAY NOT BE PRESENTLY AVAILABLE EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS FOR THE ISSUANCE OF
SHARES OF STOCK UPON EXERCISE OF THESE OPTIONS. ACCORDINGLY, THESE OPTIONS
CANNOT BE EXERCISED UNLESS THESE OPTIONS AND THE SHARES OF STOCK TO BE ISSUED
UPON EXERCISE OF THESE OPTIONS ARE REGISTERED OR AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS IS AVAILABLE.
THE SHARES OF STOCK ISSUED PURSUANT TO THE EXERCISE OF OPTIONS WILL BE
"RESTRICTED SECURITIES" AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933
AND WILL BEAR A LEGEND RESTRICTING RESALE UNLESS THEY ARE REGISTERED UNDER STATE
AND FEDERAL SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THE
COMPANY IS NOT OBLIGATED TO REGISTER THE SHARES OF STOCK OR TO MAKE AVAILABLE
ANY EXEMPTION FROM REGISTRATION.
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EXHIBIT A
Notice of Election to Exercise
This Notice of Election to Exercise shall constitute proper notice pursuant
to Section 5(h) of the XxxxXxxx.xxx, Inc. 1997 Stock Option Plan (the "Plan")
and Section 8 of that certain Stock Option Agreement (the "Agreement") dated as
of the ____ day of _____________, 19____ between FreeShop.coml, Inc. (the
"Company") and the undersigned.
The undersigned hereby elects to exercise Optionee's option to purchase
__________ shares of the common stock of the Company at a purchase price of
$_______ per share, for aggregate consideration of $_____, on the terms and
conditions set forth in the Agreement and the Plan. Such aggregate
consideration, in the form specified in Section 8 of the Agreement, accompanies
this notice.
The undersigned has executed this Notice this ____ day of ____________,
19____.
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Signature
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Name (typed or printed)
