TERMS AND CONDITIONS (v. MAY 1, 2001)
GOMEZ, INC. (THE COMPANY)
1. GRANT OF OPTION.
The Company hereby grants to the optionee (the Employee) referred to in the Notice of Grant
of Stock Option (the Notice) to which these terms and conditions are attached the right and
option to purchase all or any part of an aggregate of the number of shares of common stock of the
Company set forth in the Notice (Shares), on the terms and conditions and subject to all the
limitations set forth herein and in the stock option plan referred to in the Notice (the Plan),
which is incorporated herein by reference. The Employee acknowledges receipt of a copy of the
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be as set forth in the Notice,
subject to adjustment, as provided in the Plan, in the event of a stock split, reverse stock split
or other events affecting the holders of Shares. Payment shall be made in accordance with
Paragraph 9 of the Plan.
3. EXERCISABILITY OF OPTION.
Subject to the terms and conditions set forth in this Agreement and the Plan, the Option
granted hereby shall become exercisable as set forth in the Notice. The right to exercise shall be
cumulative so that if the Option is not exercised to the maximum extent possible during any
exercise period, it shall be exercisable, in whole or in part, with respect to all shares not so
purchased at any time prior to the expiration of the Option or the earlier termination of the
The foregoing to the contrary notwithstanding, if there is a Change in Control (as defined
below) of the Company, and if the Employee is employed by the Company on the date of consummation
thereof, then as of the effectiveness of the Change in Control the Option granted hereby shall
become immediately exercisable in full with respect to 50% of the then-remaining Shares covered
For purposes of this Section, Change in Control means:
(a) Any person (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the Exchange Act)) shall have acquired (by any means) the right (a)
through the Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of any voting securities of the Company or (2) by contract, agreement or
similar understanding or (3) any combination of (1) and (2), to elect a majority of the
(b) The approval by the stockholders of the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the assets of the
Company (Corporate Transaction); excluding, however, such a Corporate Transaction pursuant
to which (1) all or substantially all of the individuals and entities who are the Beneficial
Owners, respectively, of the then outstanding common stock (Outstanding Corporation Common
Stock) and of the then outstanding common stock entitled to vote generally in the election
of Directors (Outstanding Corporation Voting Securities) immediately prior to such
Corporate Transaction will beneficially own, directly or indirectly, more than 50% of,
respectively, the outstanding common stock, and the combined voting power of the then
outstanding common stock entitled to vote generally in the election of Directors, as the
case may be, of the company resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns the Company or all or
substantially all of the Companys assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership, immediately prior to
such Corporate Transaction, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities, as the case may be, and (2) individuals who were immediately
prior to the effective date of the Corporate Transaction members of the Board will
constitute at least a majority of the board of directors of the corporation resulting from
such Corporate Transaction; or
(c) The approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
The foregoing rights are cumulative and are subject to the other terms and conditions of this
4. TERM OF OPTION.
The Option shall expire ten (10) years from the date of this Agreement or, if the Employee
owns as of the date hereof more than ten percent (10%) of the total combined voting power of all
classes of capital stock of the Company or an Affiliate, five (5) years from the date of this
Agreement, but shall be subject to earlier termination as provided herein or in the Plan.
If the Employee ceases to be an employee of the Company or of an Affiliate (for any reason
other than the death or Disability of the Employee or termination of the Employees employment for
cause (as defined in the Plan)), the Option may be exercised, if it has not previously
terminated, within three (3) months after the date the Employee ceases to be an employee of the
Company or an Affiliate, or within the originally prescribed term of the Option, whichever is
earlier, but may not be exercised thereafter. In such event, the Option shall be exercisable only
to the extent that the Option has become exercisable and is in effect at the date of such cessation
Notwithstanding the foregoing, in the event of the Employees Disability or death within three
(3) months after the termination of employment, the Employee or the Employees Survivors may
exercise the Option within one (1) year after the date of the Employees termination of employment,
but in no event after the date of expiration of the term of the Option.
In the event the Employees employment is terminated by the Employees employer for cause
(as defined in the Plan), the Employees right to exercise any unexercised portion of this Option
shall cease as of such termination, and this Option shall thereupon terminate. Notwithstanding
anything herein to the contrary, if subsequent to the Employees termination as an employee, but
prior to the exercise of the Option, the Board of Directors of the Company determines that, either
prior or subsequent to the Employees termination, the Employee engaged in conduct which would
constitute cause, then the Employee shall immediately cease to have any right to exercise the
Option and this Option shall thereupon terminate.
In the event of the Disability of the Employee, as determined in accordance with the Plan, the
Option shall be exercisable within one (1) year after the Employees termination of employment or,
if earlier, within the term originally prescribed by the Option. In such event, the Option shall
||to the extent exercisable but not exercised as of the date of Disability; and
||in the event rights to exercise the Option accrue periodically, to the extent
of a pro rata portion of any additional rights to exercise the Option as would have
accrued had the Employee not become Disabled prior to the end of the accrual period
which next ends following the date of Disability. The proration shall be based upon
the number of days during the accrual period prior to the date of Disability.
In the event of the death of the Employee while an employee of the Company or of an Affiliate,
the Option shall be exercisable by the Participants Survivors within one (1) year after the date
of death of the Employee or, if earlier, within the originally prescribed term of the Option. In
such event, the Option shall be exercisable:
||to the extent exercisable but not exercised as of the date of death; and
||in the event rights to exercise the Option accrue periodically, to the extent
of a pro rata portion of any additional rights to exercise the Option as would have
accrued had the Employee not died prior to the end of the accrual period which next
ends following the date of death. The proration shall be based upon the number of days
during the accrual period prior to the Employees death.
5. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Agreement, the Option may be exercised by written
notice to the Company at its principal executive office, in substantially the form of a written
notice reasonably required by the Company from time to time. Such notice shall state the number of
Shares with respect to which the Option is being exercised and shall be signed by the person
exercising the Option. Payment of the purchase price for such Shares shall be made in accordance
with Paragraph 9 of the Plan. The Company shall deliver a certificate or certificates representing
such Shares as soon as practicable after the notice shall be received, provided, however, that the
Company may delay issuance of such Shares until completion of any action or obtaining of any
consent, which the Company deems necessary under any applicable law (including, without limitation,
state securities or blue sky laws). The certificate or certificates for the Shares as to which
the Option shall have been so exercised shall be registered in the name
of the person or persons so exercising the Option (or, if the Option shall be exercised by the
Employee and if the Employee shall so request in the notice exercising the Option, shall be
registered in the name of the Employee and another person jointly, with right of survivorship) and
shall be delivered as provided above to or upon the written order of the person or persons
exercising the Option. In the event the Option shall be exercised, pursuant to Section 4 hereof,
by any person or persons other than the Employee, such notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise the Option. All Shares that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid and nonassessable.
6. PARTIAL EXERCISE.
Exercise of this Option to the extent above stated may be made in part at any time and from
time to time within the above limits, except that no fractional share shall be issued pursuant to
The Option shall not be transferable by the Employee otherwise than by will or by the laws of
descent and distribution. The Option shall be exercisable, during the Employees lifetime, only by
the Employee (or, in the event of legal incapacity or incompetency, by the Employees guardian or
representative) and shall not be assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or similar process. Any
attempted transfer, assignment, pledge, hypothecation or other disposition of the Option or of any
rights granted hereunder contrary to the provisions of this Section 7, or the levy of any
attachment or similar process upon the Option shall be null and void.
8. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
The Employee shall have no rights as a stockholder with respect to Shares subject to this
Agreement until registration of the Shares in the Companys share register in the name of the
Employee. Except as is expressly provided in the Plan with respect to certain changes in the
capitalization of the Company, no adjustment shall be made for dividends or similar rights for
which the record date is prior to the date of such registration.
9. CAPITAL CHANGES AND BUSINESS SUCCESSIONS.
The Plan contains provisions covering the treatment of Options in a number of contingencies
such as stock splits and mergers. Provisions in the Plan for adjustment with respect to stock
subject to Options and the related provisions with respect to successors to the business of the
Company are hereby made applicable hereunder and are incorporated herein by reference.
The Employee acknowledges that any income or other taxes due from him or her with respect to
this Option or the Shares issuable pursuant to this Option shall be the Employees responsibility.
In the event of a Disqualifying Disposition (as defined in Section 15 below) or if the Option
is converted into a Non-Qualified Option and such Non-Qualified Option is exercised, the Company
may withhold from the Employees remuneration, if any, the appropriate amount of federal, state and
local withholding taxes attributable to such amount that is considered compensation includable in
such persons gross income. At the Companys discretion, the amount required to be withheld may be
withheld in cash from such remuneration, or in kind from the Shares otherwise deliverable to the
Employee on exercise of the Option. The Employee further agrees that, if the Company does not
withhold an amount from the Employees remuneration sufficient to satisfy the Companys income tax
withholding obligation, the Employee will reimburse the Company on demand, in cash, for the amount
11. PURCHASE FOR INVESTMENT.
Unless the offering and sale of the Shares to be issued upon the particular exercise of the
Option shall have been effectively registered under the Securities Act of 1933, as now in force or
hereafter amended (the 1933 Act), the Company shall be under no obligation to issue the Shares
covered by such exercise unless and until the following conditions have been fulfilled:
||The person(s) who exercise the Option shall warrant to the Company, at the time
of such exercise, that such person(s) are acquiring such Shares for their own
respective accounts, for investment, and not with a view to, or for sale in connection
with, the distribution of any such Shares, in which event the person(s) acquiring such
Shares shall be bound by the provisions of the following legend which shall be endorsed
upon the certificate(s) evidencing the Shares issued pursuant to such exercise:
||The shares represented by this certificate have been taken for investment
and they may not be sold or otherwise transferred by any person, including a
pledgee, unless (1) either (a) a Registration Statement with respect to such shares shall be effective under the Securities Act of 1933, as amended, or
(b) the Company shall have received an opinion of counsel satisfactory to it
that an exemption from registration under such Act is then available, and
(2) there shall have been compliance with all applicable state securities
||If the Company so requires, the Company shall have received an opinion of its
counsel that the Shares may be issued upon such particular exercise in compliance with
the 1933 Act without registration thereunder. Without limiting the generality of the
foregoing, the Company may delay issuance of the Shares until completion of any action
or obtaining of any consent, which the Company deems necessary
||under any applicable law (including without limitation state securities or blue
12. RESTRICTIONS ON TRANSFER OF SHARES.
12.1 The Shares acquired by the Employee pursuant to the exercise of the Option granted hereby
shall not be transferred by the Employee except as permitted herein. Notwithstanding the
foregoing, the provisions of this Section 12 shall not apply if the Shares are covered by a
separate Restricted Stock Agreement Terms and Conditions attached hereto (e.g. in connection with
grants of options at $.01 per share made to U.S. based employees in May 2001).
12.2 In the event of the Employees termination of employment for any reason, the Company
shall have the option, but not the obligation, to repurchase all or any part of the Shares issued
pursuant to this Agreement (including, without limitation, Shares purchased after termination of
employment, Disability or death in accordance with Section 4 hereof). In the event the Company
does not, upon the termination of employment of the Employee (as described above), exercise its
option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement
shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees,
executors, administrators and other successors in interest, agrees that the Shares shall remain
subject to such restrictions. The following provisions shall apply to a repurchase under this
||The per share repurchase price of the Shares to be sold to the Company upon
exercise of its option under this Section 12.2 shall be equal to the Fair Market Value
of each such Share determined in accordance with the Plan as of the date of termination
||The Companys option to repurchase the Employees Shares in the event of
termination of employment shall be valid for a period of eighteen (18) months
commencing with the date of such termination of employment.
||In the event the Company shall be entitled to and shall elect to exercise its
option to repurchase the Employees Shares under this Section 12.2, the Company shall
notify the Employee, or in case of death, his or her representative, in writing of its
intent to repurchase the Shares. Such written notice may be mailed by the Company up
to and including the last day of the time period provided for in Section 12.2(ii) for
exercise of the Companys option to repurchase.
||The written notice to the Employee shall specify the address at, and the time
and date on, which payment of the repurchase price is to be made (the Closing). The
date specified shall not be less than ten (10) days nor more than sixty (60) days from
the date of the mailing of the notice, and the Employee or his or her successor in
interest with respect to the Shares shall have no further rights as the owner thereof
from and after the date specified in the notice. At the Closing, the repurchase price
shall be delivered to the Employee or his or her successor in interest and the Shares
being purchased, duly endorsed for transfer, shall, to the
||extent that they are not then in the possession of the Company, be delivered to the
Company by the Employee or his or her successor in interest.
12.3 It shall be a condition precedent to the validity of any sale or other transfer of any
Shares by the Employee that the following restrictions be complied with (except as hereinafter
||No Shares owned by the Employee may be sold, pledged or otherwise transferred
(including by gift or devise) to any person or entity, voluntarily, or by operation of
law, except in accordance with the terms and conditions hereinafter set forth.
||Before selling or otherwise transferring all or part of the Shares, the
Employee shall give written notice of such intention to the Company, which notice shall
include the name of the proposed transferee, the proposed purchase price per share, the
terms of payment of such purchase price and all other matters relating to such sale or
transfer and shall be accompanied by a copy of the binding written agreement of the
proposed transferee to purchase the Shares of the Employee. Such notice shall
constitute a binding offer by the Employee to sell to the Company such number of the
Shares then held by the Employee as are proposed to be sold in the notice at the
monetary price per share designated in such notice, payable on the terms offered to the
Employee by the proposed transferee (provided, however, that the Company shall not be
required to meet any non-monetary terms of the proposed transfer, including, without
limitation, delivery of other securities in exchange for the Shares proposed to be
sold). The Company shall give written notice to the Employee as to whether such offer
has been accepted in whole by the Company within sixty (60) days after its receipt of
written notice from the Employee. The Company may only accept such offer in whole and
may not accept such offer in part. Such acceptance notice shall fix a time, location
and date for the closing on such purchase (Closing Date) which shall not be less than
ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The
place for such closing shall be at the Companys principal office. At such closing,
the Employee shall accept payment as set forth herein and shall deliver to the Company
in exchange therefor certificates for the number of Shares stated in the notice
accompanied by duly executed instruments of transfer.
||If the Company shall fail to accept any such offer, the Employee shall be free
to sell all, but not less than all, of the Shares set forth in his or her notice to the
designated transferee at the price and terms designated in the Employees notice,
provided that (i) such sale is consummated within six (6) months after the giving of
notice by the Employee to the Company as aforesaid, and (ii) the transferee first
agrees in writing to be bound by the provisions of this Section 12 so that such
transferee (and all subsequent transferees) shall thereafter only be permitted to sell
or transfer the Shares in accordance with the terms hereof. After the expiration of
such six (6) months, the provisions of this Section 12.3 shall again apply with respect
to any proposed voluntary transfer of the Employees Shares.
||The restrictions on transfer contained in this Section 12.3 shall not apply to
(a) transfers by the Employee to his or her spouse or children or to a trust for the
benefit of his or her spouse or children, (b) transfers by the Employee to his or her
guardian or conservator, and (c) or transfers by the Employee, in the event of his or
her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or
her will (collectively, Permitted Transferees); provided however, that in any such
event the Shares so transferred in the hands of each such Permitted Transferee shall
remain subject to this Agreement, and each such Permitted Transferee shall so
acknowledge in writing as a condition precedent to the effectiveness of such transfer.
||The provisions of this Section 12.3 may be waived by the Company. Any such
waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the
Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to
establish a segregated account in the amount of the repurchase price, such account to be turned
over to the Employee or his or her successor in interest upon delivery of such Shares, and
(b) immediately to take such action as is appropriate to transfer record title of such Shares from
the Employee to the Company and to treat the Employee and such Shares in all respects as if
delivery of such Shares had been made as required by this Agreement. The Employee hereby
irrevocably grants the Company a power of attorney which shall be coupled with an interest for the
purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to
any of its Common Stock, or otherwise distribute securities of the Company to the holders of its
Common Stock, the number of shares of stock or other securities of Company issued with respect to
the shares then subject to the restrictions contained in this Agreement shall be added to the
Shares subject to the Companys rights to repurchase pursuant to this Agreement. If the Company
shall distribute to its stockholders shares of stock of another corporation, the shares of stock of
such other corporation, distributed with respect to the Shares then subject to the restrictions
contained in this Agreement, shall be added to the Shares subject to the Companys rights to
repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a
greater number of shares or combined into a smaller number of shares, or in the event of a
reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall
be a party to a merger, consolidation or capital reorganization, there shall be substituted for the
Shares then subject to the restrictions contained in this Agreement such amount and kind of
securities as are issued in such subdivision, combination, reclassification, merger, consolidation
or capital reorganization in respect of the Shares subject immediately prior thereto to the
Companys rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have
been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner
of such Shares, or to accord the right to vote as such owner or to pay dividends to, any
person or organization to which any such Shares shall have been so sold, assigned or otherwise
transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a
public offering of any of the Companys securities pursuant to a registration statement filed with
the Securities and Exchange Commission pursuant to the Securities Act, in which offering the
aggregate gross proceeds to the Company exceed $10,000,000 and in which the price per share of such
securities equals or exceeds $5.00 (such price subject to equitable adjustment in the event of any
stock split, stock dividend, combination, reorganization, reclassification or other similar event).
12.9 If, in connection with a registration statement filed by the Company pursuant to the
Securities Act, the Company or its underwriter so requests, the Employee will agree not to sell any
Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its
directors and officers, has any duty or obligation to disclose to the Employee any material
information regarding the business of the Company or affecting the value of the Shares before, at
the time of, or following a termination of the employment of the Employee by the Company,
including, without limitation, any information concerning plans for the Company to make a public
offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this
Agreement shall have endorsed thereon a legend substantially as follows: The shares represented
by this certificate are subject to restrictions set forth in an Incentive Stock Option Agreement
with the Company, a copy of which Agreement is available for inspection at the offices of the
Company or will be made available upon request.
13. NO OBLIGATION TO EMPLOY.
The Company is not by the Plan or this Option obligated to continue the Employee as an
employee of the Company.
14. OPTION IS INTENDED TO BE AN ISO.
The parties each intend that the Option be an ISO so that the Employee (or the Employees
Survivors) may qualify for the favorable tax treatment provided to holders of Options that meet the
standards of Section 422 of the Code. Any provision of this Agreement or the Plan which conflicts
with the Code so that this Option would not be deemed an ISO is null and void and any ambiguities
shall be resolved so that the Option qualifies as an ISO. Nonetheless, if the Option is determined
not to be an ISO, the Employee understands that neither the Company nor any Affiliate is
responsible to compensate him or her or otherwise make up for the treatment of the Option as a
Non-qualified Option and not as an ISO. The Employee should consult with the Employees own tax
advisors regarding the tax effects of the Option and the requirements necessary to obtain favorable
tax treatment under Section 422 of the Code, including, but not limited to, holding period
15. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.
The Employee agrees to notify the Company in writing immediately after the Employee makes a
Disqualifying Disposition of any of the Shares acquired pursuant to the exercise of the Option. A
Disqualifying Disposition is defined in Section 424(c) of the Code and includes any disposition
(including any sale) of such Shares before the later of (a) two years after the date the Employee
was granted the Option or (b) one year after the date the Employee acquired Shares by exercising
the Option, except as otherwise provided in Section 424(c) of the Code. If the Employee has died
before the Shares are sold, these holding period requirements do not apply and no Disqualifying
Disposition can occur thereafter.
Any notices required or permitted by the terms of this Agreement or the Plan shall be deemed
to have been given upon the earlier of receipt, one business day following delivery to a recognized
courier service or three business days following mailing by registered or certified mail.
17. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the law of the State of
Delaware, without giving effect to the conflict of law principles thereof.
18. BENEFIT OF AGREEMENT.
Subject to the provisions of the Plan and the other provisions hereof, this Agreement shall be
for the benefit of and shall be binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto.
19. ENTIRE AGREEMENT.
This Agreement, together with the Plan, embodies the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and supersedes all prior oral
or written agreements and understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement not expressly set forth in this Agreement shall
affect or be used to interpret, change or restrict, the express terms and provisions of this
Agreement, provided, however, in any event, this Agreement shall be subject to and governed by the
20. MODIFICATIONS AND AMENDMENTS.
The terms and provisions of this Agreement may be modified or amended as provided in the Plan.
21. WAIVERS AND CONSENTS.
Except as provided in the Plan, the terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by written document executed by
the party entitled to the benefits of such terms or provisions. No such waiver or consent
shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.