Exhibit 10.35(b)
NO.____
MICRON ELECTRONICS, INC.
1995 STOCK OPTION PLAN
NOTICE OF GRANT
This Notice of ▇▇▇▇▇ (the "AGREEMENT") is made and entered into as of
the date of grant set forth below (the "DATE OF GRANT") by and between Micron
Electronics, Inc. (the "COMPANY"), and the participant named below (the
"PARTICIPANT"). Capitalized terms not defined herein shall have the meaning
ascribed to them in Micron Electronics, Inc. 1995 Stock Option Plan.
PARTICIPANT: _____________________________________________________
TOTAL OPTION SHARES: _____________________________________________________
EXERCISE PRICE PER SHARE: _____________________________________________________
DATE OF GRANT: _____________________________________________________
FIRST VESTING DATE: _____________________________________________________
EXPIRATION DATE: _____________________________________________________
(unless earlier terminated under Section 9 of the Plan)
TYPE OF STOCK OPTION: [ ] INCENTIVE STOCK OPTION
[ ] NONQUALIFIED STOCK OPTION
IN WITNESS WHEREOF, Micron Electronics, Inc. has caused this Agreement
to be executed in triplicate by its duly authorized representative and
Participant has executed this Agreement in triplicate, effective as of the Date
of Grant.
MICRON ELECTRONICS, INC. PARTICIPANT
By: _____________________________ ______________________________________
(Signature)
_________________________________ ______________________________________
(Please print name) (Please print name)
_________________________________
(Please print title)
TERMS AND CONDITIONS
OF NOTICE OF GRANT
1. GRANT OF OPTION. The Company hereby grants to Participant an option
(this "OPTION") to purchase the total number of shares of the Company's Common
Stock, .01 par value, set forth above as Total Option Shares (the "SHARES") at
the Exercise Price Per Share set forth above (the "EXERCISE PRICE"), subject to
all of the terms and conditions of this Agreement and the Plan. If designated in
this Notice of Grant as an Incentive Stock Option ("ISO"), this Option is
intended to qualify as an ISO under Section 422 of the Code. However, if this
Option is intended to be an ISO, to the extent that it exceeds the $100,000 rule
of Code Section 422(d), it shall be treated as a Nonstatutory Stock Option
("NSO").
2. EXERCISE PERIOD.
2.1 Exercise Period of Option. Provided Participant continues to
provide services to the Company or any Subsidiary or Parent of the Company or,
for so long as it owns 50% or more of the total combined voting power of the
Company, to Micron Technology, Inc., the Option will become vested and
exercisable as to portions of the Shares as follows: (i) this Option shall not
vest nor be exercisable with respect to any of the Shares until the First
Vesting Date set forth on the first page of this Agreement (the "FIRST VESTING
DATE"); (ii) on the First Vesting Date the Option will become vested and
exercisable as to twenty-five percent (25%) of the Shares; and (iii) thereafter
at the end of each full succeeding month the Option will become vested and
exercisable as to 2.08333% of the Shares until the Shares are vested with
respect to one hundred percent (100%) of the Shares. If application of the
vesting percentage causes a fractional share, such share shall be rounded down
to the nearest whole share for each month except for the last month in such
vesting period, at the end of which last month this Option shall become
exercisable for the full remainder of the Shares.
2.2 Vesting of Options. Shares that are vested pursuant to the
schedule set forth in Section 2.1 are "VESTED SHARES." Shares that are not
vested pursuant to the schedule set forth in Section 2.1 are "UNVESTED SHARES."
2.3 Expiration. The Option shall expire on the Expiration Date set
forth above or earlier as provided in Section 3 below or pursuant to Section 7
of the Plan.
3. TERMINATION.
3.1 Termination for Any Reason Except Death, Disability or Cause. If
Participant's Continuous Status as an Employee or Consultant is terminated for
any reason other than death, Disability or for cause, then the Participant may
exercise such Participant's Options only to the extent that such Options are
exercisable upon the date of such termination or as otherwise determined by the
Administrator. Such Options must be exercised by the Participant, if at all, as
to all or some of the Vested Shares calculated as of the termination date or
such other date determined by the Administrator, within thirty (30) days after
the termination date but in any event, no later than the expiration date of the
Options.
3.2 Termination Because of Death or Disability. If Participant's
Continuous Status as an Employee or Consultant is terminated because of
Participant's death or Disability, then Participant's Options may be exercised
only to the extent that such Options are exercisable
by Participant on the date of such termination or as otherwise determined by the
Administrator. Such Options must be exercised by Participant (or Participant's
legal representative or authorized assignee), if at all, as to all or some of
the Vested Shares calculated as of the termination date or such other date
determined by the Administrator, within twelve (12) months after the termination
date but in any event no later than the expiration date of the Options.
3.3 Termination for Cause. If Participant is terminated for cause,
then Participant's Options shall expire on the date of termination, or at such
later time and on such conditions as are determined by the Administrator.
3.4 No Obligation to Employ. Nothing in the Plan or this Agreement
shall confer on Participant any right to continue in the employ of, or other
relationship with, the Company, or any Parent or Subsidiary of the Company, or
Micron Technology, Inc., or limit in any way the right of the Company, or any
Parent or Subsidiary of the Company, or Micron Technology, Inc., to terminate
Participant's employment or other relationship at any time, with or without
cause.
3.5 Confidentiality. Participant agrees that information regarding
this Option, including, but not limited to, the issuance of the Option to
Participant and the number of Shares subject to the Option, is Company
confidential information, and is subject to Participant's obligations to
maintain such information in confidence. Participant agrees not to disclose such
information to any third party, except to his or her immediate family members,
accountants, financial advisors and attorneys (each of whom shall be informed of
the confidential nature of the information and agree not to disclose the
information to any third party), or as required by law. Participant agrees that
the Administrator may, at its discretion, immediately terminate all or part of
this Option if Participant violates this Section 3.5.
4. MANNER OF EXERCISE.
4.1 Stock Option Exercise Agreement. To exercise this Option,
Participant (or in the case of exercise after Participant's death or incapacity,
Participant's executor, administrator, heir or legatee, as the case may be) must
deliver to the Company an executed stock option exercise agreement in such form
as may be approved by the Administrator from time to time (the "EXERCISE
AGREEMENT"), which shall set forth, inter alia, (i) Participant's election to
exercise the Option, (ii) the number of Shares being purchased, (iii) any
restrictions imposed on the Shares and (iv) any representations, warranties and
agreements regarding Participant's investment intent and access to information
as may be required by the Company to comply with applicable securities laws. If
someone other than Participant exercises the Option, then such person must
submit documentation reasonably acceptable to the Company verifying that such
person has the legal right to exercise the Option and such person shall be
subject to all of the restrictions contained herein as if such person were the
Participant.
4.2 Limitations on Exercise. The Option may not be exercised unless
such exercise is in compliance with all applicable federal and state securities
laws, as they are in effect on the date of exercise. The Option may not be
exercised as to fewer than one hundred (100) Shares unless it is exercised as to
all Shares as to which the Option is then exercisable.
4.3 Payment. The Exercise Agreement shall be accompanied by full
payment of the Exercise Price for the shares being purchased in cash (by check),
or where permitted by law:
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of shares of the Company's Common Stock that (i)
either (A) have been owned by Participant for more than six (6)
months and have been paid for within the meaning of SEC Rule 144
(and, if such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to
such shares); or (B) were obtained by Participant in the open
public market; and (ii) are clear of all liens, claims,
encumbrances or security interests;
(c) by waiver of compensation due or accrued to Participant for
services rendered;
(d) provided that a public market for the Company's stock exists:
(i) through a "same day sale" commitment from Participant and a
broker-dealer that is a member of the National Association of
Securities Dealers (an "NASD DEALER") whereby Participant
irrevocably elects to exercise the Option and to sell a portion
of the Shares so purchased sufficient to pay for the total
Exercise Price and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the total Exercise Price
directly to the Company, or (ii) through a "margin" commitment
from Participant and an NASD Dealer whereby Participant
irrevocably elects to exercise the Option and to pledge the
Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the
total Exercise Price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the total
Exercise Price directly to the Company; or
(e) any other form of consideration approved by the Administrator;
or
(f) by any combination of the foregoing.
4.4 Tax Withholding. Prior to the issuance of the Shares upon
exercise of the Option, Participant must pay or provide for any applicable
federal, state and local withholding obligations of the Company. If the
Administrator permits, Participant may provide for payment of withholding taxes
upon exercise of the Option by requesting that the Company retain the minimum
number of Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld; but in no event will the Company withhold Shares if
such withholding would result in adverse accounting consequences to the Company.
In such case, the Company shall issue the net number of Shares to the
Participant by deducting the Shares retained from the Shares issuable upon
exercise.
4.5 Issuance of Shares. Provided that the Exercise Agreement and
payment are in form and substance satisfactory to counsel for the Company, the
Company shall issue the Shares registered in the name of Participant,
Participant's authorized assignee, or Participant's legal representative, and
shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.
5. CORPORATE TRANSACTIONS.
5.1 Assumption or Replacement of Options by Successor. In the event
of (i) a dissolution or liquidation of the Company, (ii) a merger of the Company
with or into another corporation (other than a Change in Control), or (iii) a
sale of all or substantially all the assets of the Company (other than a Change
in Control), any or all outstanding Options may be assumed or an equivalent
option or right may be substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In lieu of such assumption or
substitution, or in the event the successor corporation does not assume the
Option or substitute an equivalent option or right, the Administrator may
provide for the Participant to have the right to exercise all or a portion of
the Optioned Stock, including Shares as to which it would not otherwise be
exercisable. If the Administrator makes an Option exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Participant that the Option shall be fully
exercisable for a period of thirty (30) days from the date of such notice, and
the Option will terminate upon the expiration of such period. For the purposes
of this Subsection 5.1, the Option shall be considered assumed if, following the
merger or sale of assets, the option or right confers the right to purchase, for
each Share of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders of
Common Stock for each Share held on the effective date of the transaction (and
if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of assets was
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock subject to the Option, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of
assets.
In the event of a Change in Control, the unexercised portion of the
Option shall become immediately exercisable, to the extent such acceleration
does not disqualify the Plan, or cause an ISO to be treated as a NSO without the
Participant's consent.
5.2 Other Treatment of Options. Subject to any greater rights
granted to Participants under the foregoing provisions of this Section 5, in the
event of the occurrence of any transaction described in Section 5.1 hereof, any
outstanding Options will be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation or sale of assets.
6. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of the Option and
the issuance and transfer of Shares shall be subject to compliance by the
Company and Participant with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on
which the Company's Common Stock may be listed at the time of such issuance or
transfer. Participant understands that the Company is under no obligation to
register or qualify the Shares with the SEC, any state securities commission or
any stock exchange to effect such compliance.
7. NONTRANSFERABILITY OF OPTION. The Option may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other than by
will or by the laws of
descent and distribution and may be exercised, during Participant's lifetime,
only by the Participant.
8. TAX CONSEQUENCES. Set forth below is a brief summary as of April of
2001 of some of the tax consequences of exercise of the Option and disposition
of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISER
BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES.
8.1 Exercise of NSO. There may be a regular federal and state income
tax liability upon the exercise of the Option. Participant will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price. If Participant is a current or former employee
of the Company, the Company may be required to withhold from Participant's
compensation or collect from Participant and pay to the applicable taxing
authorities an amount equal to a percentage of this compensation income at the
time of exercise.
8.2 Exercise of ISO. If the Option qualifies as an ISO, there will
be no regular federal income tax liability upon the exercise of the Option,
although the excess, if any, of the Fair Market Value of the Shares on the date
of exercise over the Exercise Price will be treated as a tax preference item for
federal alternative minimum tax purposes and may subject the Participant to the
alternative minimum tax in the year of exercise.
8.3 Disposition of Shares. The following tax consequences may apply
upon disposition of the Shares.
(a) ISO's. If the Shares are held for more than twelve (12)
months after the date of purchase of the Shares pursuant to the exercise of an
ISO and are disposed of more than two (2) years after the Date of Grant, any
gain realized on disposition of the Shares will be treated as long term capital
gain for federal income tax purposes. If Shares purchased under an ISO are
disposed of within the applicable one (1) year or two (2) year period (a
"DISQUALIFYING DISPOSITION"), any gain realized on such disposition will be
treated as compensation income (taxable at ordinary income rates) to the extent
of the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price. Participant shall immediately notify the
Company in writing of any Disqualifying Disposition. Participant agrees that
Participant may be subject to income tax withholding by the Company on the
compensation income recognized by Participant from the Disqualifying Disposition
by payment in cash or out of the current wages or other compensation payable to
Participant.
(b) NSO's. If the Shares are held for more than twelve (12)
months after the date of purchase of the Shares pursuant to the exercise of an
Option, any gain realized on disposition of the Shares will be treated as long
term capital gain for federal income tax purposes. If the Shares are disposed of
within this twelve (12) month period, any gain realized on such disposition will
be treated as compensation income.
(c) Withholding. The Company may be required to withhold from
the Participant's compensation or collect from the Participant and pay to the
applicable taxing authorities an amount equal to a percentage of the
Participant's compensation income.
9. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the
rights of a stockholder with respect to any Shares until the Shares are issued
to Participant.
10. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by the Participant or the Company to the
Administrator for review. The resolution of such a dispute by the Administrator
shall be final and binding on the Company and the Participant.
11. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. This
Agreement and the Plan constitute the entire agreement of the parties and
supersede all prior undertakings and agreements with respect to the subject
matter hereof.
12. NOTICES. Any notice required to be given or delivered to the Company
under the terms of this Agreement shall be in writing and addressed to the
Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Participant shall be in writing and
addressed to Participant at the address indicated above or to such other address
as such party may designate in writing from time to time to the Company. All
notices shall be deemed to have been given or delivered upon: (i) personal
delivery; (ii) three (3) days after deposit in the United States mail by
certified or registered mail (return receipt requested); (iii) one (1) business
day after deposit with any return receipt express courier (prepaid); or (iv) one
(1) business day after transmission by facsimile, rapifax or telecopier.
13. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon
Participant and Participant's heirs, executors, administrators, legal
representatives, successors and assigns.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota except for that body of law
pertaining to conflicts of law. If any provision of this Agreement is determined
by a court of law to be illegal or unenforceable, then such provision will be
enforced to the maximum extent possible and the other provisions will remain
fully effective and enforceable.
15. ACCEPTANCE. Participant hereby acknowledges receipt of a copy of the
Plan and this Agreement. Participant has read and understands the terms and
provisions thereof, and accepts the Option subject to all the terms and
conditions of the Plan and this Agreement. Participant acknowledges that there
may be adverse tax consequences upon exercise of the Option or disposition of
the Shares and that Participant should consult a tax adviser prior to such
exercise or disposition.
