Exhibit 10.3
FORM OF
EMPLOYEE NQSO
NON-QUALIFIED
STOCK OPTION AGREEMENT
UNDER THE
JUPITERMEDIA CORPORATION
2008 STOCK INCENTIVE PLAN
THIS AGREEMENT, made on the grant date (the "Effective Date") by and
between Jupitermedia Corporation, a Delaware corporation (the "Company"), and
you (the "Holder")
W I T N E S S E T H:
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WHEREAS, the Holder is now employed by the Company or an Affiliate or
otherwise provides services to the Company and the Company desires to have
Holder remain in such capacity and to afford Holder the opportunity to acquire,
or enlarge, Holder's ownership of the Company's Common Stock, par value $0.01
per share ("Stock"), so that Holder may have a direct proprietary interest in
the Company's success;
WHEREAS, all capitalized terms not otherwise defined herein shall have the
same meaning as set forth in Company's 2008 Stock Incentive Plan (the "Plan");
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein
and in the Plan, the Company hereby grants to the Holder, during the period
commencing on the Effective Date and ending on the date that is [____] years
from the Effective Date (the "Option Period"), the right and option (the right
to purchase any one share of Stock hereunder being an "Option") to purchase from
the Company, the aggregate number of shares of Stock, at the xxxxx xxxxx, as
specified in your notice of grant award provided by Xxxxxxx Xxxxx to you, which
you may access through the Xxxxxxx Xxxxx Benefits Online website ("Notice of
Grant Award").
2. Limitations on Exercise of Option. Subject to the terms and conditions
set forth herein, the Options shall vest and become exercisable in accordance
with the schedule set forth in the Notice of Grant Award.
Notwithstanding anything to the contrary in this Section 2, in the event
of a Change in Control, as defined in the Plan, all outstanding Options shall
vest and become immediately exercisable.
3. Termination of Employment. (a) If prior to the expiration of the Option
Period, the Holder's employment with the Employer terminates for any reason
other than by the Employer for Cause, or by reason of the Holder's death or
Disability, (i) all vesting with respect to the Options shall cease, (ii) any
unvested Options shall expire as of the date of such
termination, and (iii) any vested Options shall remain exercisable until the
earlier of the expiration of the Option Period or the date that is ninety (90)
days after the date of such termination. If the Holder dies or undergoes a
Disability prior to the expiration of the ninety (90) day period set forth in
this Section 3(a), any vested Options shall instead expire on the earlier of the
expiration of the Option Period or the date that is twelve (12) months after the
date of the Holder's termination of employment.
(b) If prior to the expiration of the Option Period, the Holder's
employment with the Employer terminates by reason of the Holder's death or
Disability, (i) all vesting with respect to the Options shall cease, (ii) any
unvested Options shall expire as of the date of such termination, and (iii) any
vested Options shall expire on the earlier of the expiration of the Option
Period or the date that is twelve (12) months after the date of the Holder's
termination of employment.
(c) If prior to the expiration of the Option Period, the Holder's
employment with the Employer is terminated by the Employer for Cause, all
Options (whether or not vested) shall immediately expire as of the date of such
termination.
(d) After the expiration of any exercise period described in either of
paragraphs 3(a), 3(b) or 3(c) hereof, the Options shall terminate together with
all of the Holder's rights hereunder, to the extent not previously exercised.
4. Method of Exercising Option. (a) Options which have become exercisable
may be exercised by delivery of written notice of exercise to the Committee
accompanied by payment of the exercise price. The exercise price may be payable
in cash, by bank check (acceptable to the Committee) and/or shares of Stock
(valued at the Fair Market Value at the time the Option is exercised), having in
the aggregate a value equal to the aggregate exercise price or, by any other
means approved by the Committee.
(b) At the time of exercise, (i) the Company shall have the right to
withhold from the number of shares of Stock to be issued upon exercise or (ii)
at the discretion of the Committee, the Holder shall be obligated to pay to the
Company such amount, as the Company deems necessary to satisfy its obligation to
withhold Federal, state or local income or other taxes incurred by reason of the
exercise or the transfer of shares thereupon.
5. Issuance of Shares. As promptly as practical after receipt of such
written notification and full payment of such purchase price and any required
income tax withholding amount, the Company shall issue or transfer to the Holder
the number of shares with respect to which Options have been so exercised, and
shall deliver to the Holder a certificate or certificates therefor, registered
in the Holder's name.
6. Holder. (a) Whenever the word "Holder" is used in any provision of this
Agreement under circumstances where the provision should logically be construed
to apply to the executors, the administrators, or the person or persons to whom
the Options may be transferred by will or by the laws of descent and
distribution, the word "Holder" shall be deemed to include such person or
persons.
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7. Non-Transferability. Except as otherwise provided by the Committee, the
Options are not transferable by the Holder otherwise than by will or the laws of
descent and distribution and are exercisable during the Holder's lifetime only
by Holder. Except as otherwise provided by the Committee, no assignment or
transfer of the Options, or of the rights represented thereby, whether voluntary
or involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right herein whatsoever, but immediately upon such assignment or transfer the
Options shall terminate and become of no further effect.
8. Rights as Stockholder. The Holder or a transferee of the Options shall
have no rights as a stockholder with respect to any share covered by the Options
until Holder shall have become the holder of record of such share, and no
adjustment shall be made for dividends or distributions or other rights in
respect of such share for which the record date is prior to the date upon which
Holder shall become the holder or record thereof.
9. Changes in Capital Structure. (a) The Options granted under this
Agreement shall be equitably and proportionally adjusted or substituted, as
determined by the Committee, as to the number, price or kind of a share of Stock
or other consideration subject to such Options (i) in the event of changes in
the outstanding Stock or in the capital structure of the Company by reason of
stock dividends, stock splits, reverse stock splits, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges, or other
relevant changes in capitalization occurring after the date of grant of any such
Award (including any Corporate Event (as defined below)); (ii) in connection
with any extraordinary dividend declared and paid in respect of shares of Stock,
whether payable in the form of cash, stock or any other form of consideration;
or (iii) in the event of any change in applicable laws or any change in
circumstances which results in or would result in any substantial dilution or
enlargement of the rights granted to, or available for, the Holder in the Plan.
(b) Notwithstanding the foregoing, in connection with (i) a merger or
consolidation involving the Company in which the Company is not the surviving
corporation; (ii) a merger or consolidation involving the Company in which the
Company is the surviving corporation but the holders of shares of Stock receive
securities of another corporation and/or other property, including cash; (iii) a
Change in Control; or (iv) the reorganization or liquidation of the Company
(each, a "Corporate Event"), the Committee may, in its discretion, provide for
any one or more of the following:
A. require that the Options be assumed in connection with such Corporate
Event, in which case, the Options shall be subject to the adjustment
set forth in subsection (a) above;
B. accelerate the vesting of any Options, subject to the consummation of
such Corporate Event; or
C. cancel any or all vested and/or unvested Options as of the
consummation of such Corporate Event, and provide that the Holder will
receive a payment in respect of cancellation of the vested Options
(including any Options that would vest on the Corporate Event but for
cancellation) based
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on the amount of the per share consideration being paid for the Stock
in connection with such Corporate Event, less the applicable exercise
price; provided, however, the Holder shall only be entitled to
consideration in respect of cancellation of such Options if the per
share consideration less the applicable exercise price is greater than
zero (and to the extent the per share consideration is less than or
equal to the applicable exercise price, such Options shall be
cancelled for no consideration).
10. Compliance with Law. Notwithstanding any of the provisions hereof, the
Holder hereby agrees that Holder will not exercise the Options, and that the
Company will not be obligated to issue or transfer any shares to the Holder
hereunder, if the exercise hereof or the issuance or transfer of such shares
shall constitute a violation by the Holder or the Company of any provisions of
any law or regulation of any governmental authority. Any determination in this
connection by the Committee shall be final, binding and conclusive. The Company
shall in no event be obliged to register any securities pursuant to the
Securities Act of 1933 (as now in effect or as hereafter amended) or to take any
other affirmative action in order to cause the exercise of the Options or the
issuance or transfer of shares pursuant thereto to comply with any law or
regulation of any governmental authority.
11. Notice. Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed to or delivered to the party for whom
it is intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by the Holder to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to the Holder may be given to the Holder personally or may be mailed
to Holder at the Holder's last known address, as reflected in the Company's
records.
12. Non-Qualified Stock Options. The Options granted hereunder are NOT
intended to be incentive stock options within the meaning of Section 422 of the
Code.
13. Binding Effect. Subject to Section 7 hereof, this Agreement shall be
binding upon the heirs, executors, administrators and successors of the parties
hereto.
14. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law thereof.
15. Plan. The terms and provisions of the Plan are incorporated herein by
reference. In the event of a conflict or inconsistency between discretionary
terms and provisions of the Plan and the express provisions of this Agreement,
this Agreement shall govern and control. In all other instances of conflicts or
inconsistencies or omissions, the terms and provisions of the Plan shall govern
and control.
16. Entire Agreement. This agreement, together with the Plan, is the entire
agreement between the parties with respect to this matter and may not be
modified or amended without a subsequent writing signed by the parties.
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17. Counterparts This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
By accepting this Option award, the parties hereto have executed this
Agreement.
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