EXHIBIT 10.2
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") is entered
into as of the ______ day of ____________, 20___, between L90, INC., a Delaware
corporation (the "Company"), and MERGEFIELD (the "Optionee").
R E C I T A L S
- - - - - - - -
A. The Board of Directors of the Company (the "Board") has
established the Company's Stock Incentive Plan (the "Plan") in order to provide
key employees, officers and directors of the Company with a favorable
opportunity to acquire shares of the Company's Common Stock, par value $.001 per
share ("Shares").
B. The Board regards the Optionee as a key employee, officer or
director as contemplated by the Plan and has determined that it would be in the
best interests of the Company and its stockholders to grant the option described
in this Agreement to the Optionee as an inducement to remain in the service of
the Company and as an incentive for promoting efforts during such service.
NOW, THEREFORE, it is agreed as follows:
1. Definitions and Incorporation. Unless otherwise defined herein or
-----------------------------
the context otherwise requires, the capitalized terms used in this Agreement
shall have the meanings given to such terms in the Plan. The Plan is hereby
incorporated in and made a part of this Agreement as if fully set forth herein.
The Optionee hereby acknowledges that he or she has received a copy of the Plan.
2. Grant of Option. Pursuant to the Plan, the Company hereby grants
---------------
to the Optionee as of the date hereof (the "Date of Grant") the option to
purchase all or any part of an aggregate of ((Quantity)) Shares (the "Option"),
subject to adjustment in accordance with Section 15 of the Plan. The Option is
intended to qualify as an Incentive Stock Option under Section 422 of the Code.
3. Option Price. The price to be paid for the Shares upon exercise
------------
of the Option or any part thereof shall be $_________ per share (the "Exercise
Price").
4. Right to Exercise. Subject to the conditions set forth in this
-----------------
Agreement, the Optionee shall have the right to exercise the Option in
accordance with the vesting provisions set forth on Exhibit 1 hereto.
---------
5. Securities Law Requirements. No part of the Option shall be
---------------------------
exercised if counsel to the Company determines that any applicable registration
requirement under the Securities Act of 1933 (the "Act") or any other applicable
requirement of Federal or state law has not been met.
6. Term of Option. The Option shall terminate in any event on the
--------------
earliest of (a) the _____ day of ____________, 20___, at 11:59 P.M. California
time, (b) the expiration of the period described in Section 7 below, (c) the
expiration of the period described in Section 8 below or (d) the expiration of
the period described in Section 9 below.
7. Exercise Following Cessation of Employment or Service. If the
-----------------------------------------------------
Optionee's employment or service with the Company ceases for any reason or no
reason, whether voluntarily or involuntarily, with or without Cause, other than
death, Disability or Retirement, the Option (to the extent it has not previously
been exercised and is exercisable at the time of cessation) may be exercised
within ninety (90) consecutive days after the date of such cessation. The
foregoing notwithstanding, the Option shall cease to be exercisable on the date
of such cessation if such cessation arises out of termination for Cause. Any
determination of "Cause" by the Administrator made in good faith shall be final
and binding upon the Company and the Optionee and all persons claiming under or
through them.
8. Exercise Following Death or Disability. If the Optionee's
--------------------------------------
employment or service with the Company ceases by reason of the Optionee's death
or Disability, or if the Optionee dies after cessation of employment or service
but while the Option would have been exercisable hereunder, the Option (to the
extent it has not previously been exercised and is exercisable at the time of
cessation) may be exercised within one (1) year after the date of the Optionee's
death or cessation by reason of Disability. In case of death, the exercise may
be made by his or her representative or by the person entitled thereto under the
Optionee's will or the laws of descent and distribution; provided that such
representative or such person consents in writing to abide by and be subject to
the terms of the Plan and this Agreement and such writing is delivered to the
President or Chairman of the Company.
9. Exercise Following Retirement. If the Optionee's employment or
-----------------------------
service with the Company ceases by reason of Retirement the Option (to the
extent it has not previously been exercised and is exercisable at the time of
cessation) may be exercised within ninety (90) days after the date of the
Optionee's retirement.
-2-
10. Time of Cessation of Service. For the purposes of this Agreement,
----------------------------
the Optionee's employment or service shall be deemed to have ceased on the
earlier of (a) the date when the Optionee's employment or service in fact ceased
or (b) except in the case of Retirement, the date when the Optionee gave or
received written notice that his or her employment or service is to cease.
11. Nontransferability. The Option shall be exercisable during the
------------------
Optionee's lifetime only by the Optionee or by the Optionee's guardian or legal
representative and shall be nontransferable, except that the Optionee may
transfer all or any part of the Option by will or by the laws of descent and
distribution. Except as otherwise provided herein, any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of the Option
or any right thereunder shall be null and void and, at the Company's option,
shall cause all of the Optionee's rights under this Agreement to terminate.
12. Effect of Exercise. Upon exercise of all or any part of the
------------------
Option, the number of Shares subject to the Option under this Agreement shall be
reduced by the number of Shares with respect to which such exercise is made.
13. Exercise of Option. The Option may be exercised by delivering to
------------------
the Company (a) a written notice of exercise in substantially the form attached
hereto as Exhibit 2 and (b) full payment of the Exercise Price for each Share
---------
purchased under the Option. Such notice shall specify the number of Shares with
respect to which the Option is exercised and shall be signed by the person
exercising the Option. If the Option is exercised by a person other than the
Optionee, such notice shall be accompanied by proof, satisfactory to the
Company, of such person's right to exercise the Option. The Exercise Price shall
be payable in U.S. dollars in cash (by check), or, at the election of the
Administrator, by (i) delivery of Shares registered in the name of the Optionee
having a Fair Market Value at the time of exercise equal to the amount of the
Exercise Price, (ii) delivery of any combination of the payment of cash and the
delivery of Shares, or (iii) the surrender for cancellation of Options to
purchase a number of Shares, the Fair Market Value of the appreciation of which
is equivalent to the Exercise Price of the number of Shares being purchased
pursuant to the Option, or as otherwise approved by the Administrator in its
sole and absolute discretion.
14. Withholding Taxes. The Company may require the Optionee to
-----------------
deliver payment, upon exercise of the Option, of all Applicable Taxes (in
addition to the Exercise Price) with respect to the difference between the
Exercise Price and the Fair Market Value of the Shares acquired upon exercise,
which payment shall be made (a) in cash, (b) upon written approval from the
Administrator, by delivery of Shares registered in the name of the Optionee, or
by the Company not issuing such number of Shares subject to the Option, having a
Fair Market Value at the time of exercise in the amount to
-3-
be withheld or (c) upon written approval from the Administrator, any combination
of (a) and (b) above.
15. Issuance of Shares. Subject to the foregoing conditions, the
------------------
Company, as soon as reasonably practicable after receipt of a proper notice of
exercise and without transfer or issue tax or other incidental expense to the
person exercising the Option, shall deliver to such person at the principal
office of the Company, or such other location as may be acceptable to the
Company and such person, one or more certificates for the Shares with respect to
which the Option is exercised. Such shares shall be fully paid and nonassessable
and shall be issued in the name of such person. However, at the request of the
Optionee, such shares may be issued in the names of the Optionee and his or her
spouse (a) as joint tenants with right of survivorship, (b) as community
property or (c) as tenants in common without right of survivorship.
16. Rights as Shareholder. Neither the Optionee nor any other person
---------------------
entitled to exercise the Option shall have any rights as a shareholder of the
Company with respect to the Shares subject to the Option until a certificate for
such shares has been issued to him or her following the exercise of the Option.
17. No Rights as to Service. Nothing in this Agreement shall be
-----------------------
construed to give any person the right to remain in the employ or service of the
Company or any Subsidiary or to affect the absolute and unqualified right of the
Company and any Subsidiaries to terminate such person's employment or service
relationship at any time for any reason or no reason and with or without cause
or prior notice.
18. Lock-Up. In the event that the Company files a registration
-------
statement with respect to an underwritten public offering under the Act in which
any class of the Company's equity securities is to be offered, the Optionee
shall (i) not offer to sell or effect any sale or distribution of any Shares or
any of the Company's other equity securities, or of any securities convertible
into, or exchangeable or exercisable for such securities, during the period
beginning thirty (30) days prior to the filing of such registration statement
with the Securities and Exchange Commission and ending on such date after such
registration statement has become effective as shall be specified by the
managing underwriter of such public offering, and (ii) enter into such further
written agreement restricting the transferability during such period of any
Shares or other equity securities of the Company upon such terms and conditions
as shall be required by such managing underwriter.
19. Notices. Any notice to the Company contemplated by this Agreement
-------
shall be addressed to it in care of its Chief Executive Officer at 0000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 or such other
address as the Company may specify in a notice to the Optionee; and any notice
to the Optionee shall be addressed to him or her at the address on file with the
Company on the date
-4-
hereof or at such other address as he or she may hereafter designate in writing.
Notice shall be deemed to have been given upon receipt or, if sooner, five (5)
days after such notice has been deposited, postage prepaid, certified or
registered mail, return receipt requested, in the United States mail addressed
to the address specified in the immediately preceding sentence.
20. Interpretation. The interpretation, construction, performance and
--------------
enforcement of this Agreement and of the Plan shall lie within the sole
discretion of the Administrator, and the Administrator's determinations shall be
conclusive and binding on all interested persons.
21. Choice of Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal substantive laws (not the law of choice of laws)
of the State of California.
22. Integration. This Agreement, together with the Plan and the
-----------
Exhibits hereto, constitutes the entire agreement of the parties with respect to
the subject matter hereof, and supersedes all prior understandings, whether
written or oral, with respect to the subject matter hereof. No representation or
warranty not included herein has been relied upon by any party hereto.
-5-
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
L90, INC.
By_____________________________
Name:
Title:
"OPTIONEE"
--------------------------------
Name:
"OPTIONEE'S SPOUSE"
--------------------------------
Name:
-6-
EXHIBIT 1
---------
VESTING SCHEDULE
----------------
EXHIBIT 2
---------
EXERCISE NOTICE
TO: L90, Inc.
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Controller
FROM: ________________________________
RE: Notice of Exercise of Stock Option
DATE: ________________________________
In accordance with the terms of the Incentive Stock Option Agreement
dated as of _____________ (the "Stock Option Agreement") between L90, Inc. (the
"Company") and me, I have been granted and am the holder of an incentive stock
option to purchase up to ________ shares of the Company's Common Stock at an
exercise price of $___________ per share. This letter shall constitute the
written notice of exercise required by the terms of the Stock Option Agreement.
I hereby advise the Company that by means of this notice of exercise,
I wish to purchase, effective as of the date hereof, ________ shares under the
Stock Option Agreement, and I authorize that the certificate representing said
shares shall be issued in the name(s) of:
__________________________
__________________________ (Spouse, if applicable)
Social Security Number(s):
__________________________
__________________________ (Spouse, if applicable)
This notice is accompanied by cash or a check for the full purchase
price of $____, which represents ______ shares multiplied by the Exercise Price
of $_____ per share.
I agree to notify the Company of any transfer of the Common Stock I am
purchasing hereunder if such transfer takes place within two (2) years of the
date of the grant of the option or within one (1) year of the date hereof. I
understand that such a transfer at such time will cause me to lose special tax
treatment with regard to my option and will subject me to additional withholding
taxes.
OPTIONEE
__________________________
Name:
Receipt of Notice of Exercise is hereby acknowledged on ________________.
L90, Inc.
By: _____________________
Name:
Title:
PLEASE MAIL STOCK CERTIFICATE(S) TO:
-----------------------------------
Name:________________________
Address:_____________________
City, State:_________________
Zip Code:____________________
Attention:
