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EXHIBIT 10.8
OPTION NO.: _______
ENTERWORKS, INC.
2000 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Enterworks, Inc., a Delaware corporation (the "Company"), hereby grants
an option to purchase shares of its common stock, par value $.01, (the "Stock")
to the optionee named below. The terms and conditions of the option are set
forth in this cover sheet, in the attachment and in the Company's 2000 Stock
Incentive Plan (the "Plan").
Grant Date: __________________, 200_
Name of Optionee: _________________________________________________
Optionee's Social Security Number: _____-____-_____
Number of Shares Covered by Option: ______________
Exercise Price per Share: $_____.___
Vesting Start Date: _________________, ____
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH
IS ALSO ATTACHED. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY REVIEWED THE PLAN, AND
AGREE THAT THE PLAN WILL CONTROL IN THE EVENT ANY PROVISION OF THIS AGREEMENT
SHOULD APPEAR TO BE INCONSISTENT.
Optionee:
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(Signature)
Company:
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(Signature)
Title:
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Attachment
This is not a stock certificate or a negotiable instrument.
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ENTERWORKS, INC.
2000 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
NONSTATUTORY STOCK OPTION This option is not intended to be an incentive
stock option under Section 422 of the Internal
Revenue Code and will be
interpreted accordingly.
VESTING This option is only exercisable before it
expires and then only with respect to the vested
portion of the option. Subject to the preceding
sentence, you may exercise this option, in whole
or in part, to purchase a whole number of vested
shares not less than 100 shares, unless the
number of shares purchased is the total number
available for purchase under the option, by
following the procedures set forth in the Plan
and below in this Agreement.
Your right to purchase shares of Stock under
this option vests as to one-fourth (1/4) of the
total number of shares covered by this option,
as shown on the cover sheet, on the one-year
anniversary of the Vesting Start Date
("Anniversary Date"), provided you then continue
in Service. Thereafter, for each such vesting
date that you remain in Service the number of
shares of Stock which you may purchase under
this option shall vest at the rate of 6 1/4%
(six and one-fourth percent) per calendar
quarter (which begin January, April, July and
October) as of the first day of each calendar
quarter following the Anniversary Date. The
resulting aggregate number of vested shares will
be rounded to the nearest whole number, and you
cannot vest in more than the number of shares
covered by this option. Section 15 of the Plan
contains a description of certain events
involving a Change of Control which may cause
vesting of your Option to accelerate.
No additional shares of Stock will vest after
your Service has terminated for any reason.
TERM Your option will expire in any event at the
close of business at Company headquarters on the
day before the 10th anniversary of the Date of
Option Grant, as shown on the cover sheet. Your
option will expire earlier if your Service
terminates, as described below.
REGULAR TERMINATION If your Service terminates for any reason, other
than death, Disability or Cause, then your
option will expire at the close of business at
Company headquarters on the 90th day after your
termination date.
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TERMINATION FOR If your Service is terminated for Cause or you
CAUSE OR RESIGNATION resign, then you shall immediately forfeit all
rights to your option and the option shall
immediately expire.
DEATH If your Service terminates because of your
death, then your option will expire at the close
of business at Company headquarters on the date
twelve (12) months after the date of death.
During that twelve month period, your estate or
heirs may exercise the vested portion of your
option.
In addition, if you die during the 90-day period
described in connection with a regular
termination (i.e., a termination of your Service
not on account of your death, Disability or
Cause), and a vested portion of your option has
not yet been exercised, then your option will
instead expire on the date twelve (12) months
after your termination date. In such a case,
during the period following your death up to the
date twelve (12) months after your termination
date, your estate or heirs may exercise the
vested portion of your option.
DISABILITY If your Service terminates because of your
Disability, then your option will expire at the
close of business at Company headquarters on the
date twelve (12) months after your termination
date.
LEAVES OF ABSENCE For purposes of this option, your Service does
not terminate when you go on a bona fide
employee leave of absence that was approved by
the Company in writing, if the terms of the
leave provide for continued Service crediting,
or when continued Service crediting is required
by applicable law. However, your Service will be
treated as terminating 90 days after you went on
employee leave, unless your right to return to
active work is guaranteed by law or by a
contract. Your Service terminates in any event
when the approved leave ends unless you
immediately return to active employee work.
The Company determines, in its sole discretion,
which leaves count for this purpose, and when
your Service terminates for all purpose under
the Plan.
NOTICE OF EXERCISE When you wish to exercise this option, you must
notify the Company by filing the proper "Notice
of Exercise" form at the address given on the
form. Your notice must specify how many shares
you wish to purchase (in a parcel of at least
100 shares generally). Your notice must also
specify how your shares of Stock should be
registered (in your name only or in your and
your spouse's names as joint tenants with right
of survivorship).
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The notice will be effective when it is received
by the Company.
If someone else wants to exercise this option
after your death, that person must prove to the
Company's satisfaction that he or she is
entitled to do so.
FORM OF PAYMENT When you submit your notice of exercise, you
must include payment of the option price for the
shares you are purchasing. Payment may be made
in one (or a combination) of the following
forms:
- Cash, your personal check, a cashier's
check, a money order or another cash
equivalent acceptable to the Company.
- Shares of Stock which have already been
owned by you for more than six months and
which are surrendered to the Company. The
value of the shares, determined as of the
effective date of the option exercise, will
be applied to the option price.
- To the extent a public market for the Stock
exists as determined by the Company, by
delivery (on a form prescribed by the
Company) of an irrevocable direction to a
securities broker to sell Stock and to
deliver all or part of the sale proceeds to
the Company in payment of the
aggregate exercise price and any withholding
taxes.
WITHHOLDING TAXES You will not be allowed to exercise this option
unless you make acceptable arrangements to pay
any withholding or other taxes that may be due
as a result of the option exercise or sale of
Stock acquired under this option. In the event
that the Company determines that any federal,
state, local or foreign tax or withholding
payment is required relating to the exercise or
sale of shares arising from this grant, the
Company shall have the right to require such
payments from you, or withhold such amounts from
other payments due to you from the Company or
any Affiliate.
TRANSFER OF OPTION During your lifetime, only you (or, in the event
of your legal incapacity or incompetency, your
guardian or legal representative) may exercise
the Option. You cannot transfer or assign this
option. For instance, you may not sell this
option or use it as security for a loan. If you
attempt to do any of these things, this option
will immediately become invalid. You may,
however, dispose of this option in your will or
it may be transferred upon your death by the
laws of descent and
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distribution.
Regardless of any marital property settlement
agreement, the Company is not obligated to honor
a notice of exercise from your spouse, nor is
the Company obligated to recognize your spouse's
interest in your option in any other way.
MARKET STAND-OFF In connection with any underwritten public
AGREEMENT offering by the Company of its equity securities
pursuant to an effective registration statement
filed under the Securities Act, including the
Company's initial public offering, you agree not
to sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer
for value or agree to engage in any of the
foregoing transactions with respect to any
shares of Stock without the prior written
consent of the Company or its underwriters, for
such period of time after the effective date of
such registration statement as may be requested
by the Company or the underwriters (not to
exceed 180 days in length).
INVESTMENT REPRESENTATION If the sale of Stock under the Plan is not
registered under the Securities Act, but an
exemption is available which requires an
investment or other representation, you shall
represent and agree at the time of exercise that
the Stock being acquired upon exercise of this
option are being acquired for investment, and
not with a view to the sale or distribution
thereof, and shall make such other
representations as are deemed necessary or
appropriate by the Company and its counsel.
THE COMPANY'S RIGHT OF In the event that you propose to sell, pledge or
FIRST REFUSAL otherwise transfer to a third party any Stock
acquired under this Agreement, or any interest
in such Stock, the Company shall have the "Right
of First Refusal" with respect to all (and not
less than all) of such shares of Stock. If you
desire to transfer Stock acquired under this
Agreement, you must give a written "Transfer
Notice" to the Company describing fully the
proposed transfer, including the number of
shares proposed to be transferred, the proposed
transfer price and the name and address of the
proposed transferee.
The Transfer Notice shall be signed both by you
and by the proposed new transferee and must
constitute a binding commitment of both parties
to the transfer of the shares. The Company shall
have the right to purchase all, and not less
than all, of the shares of Stock on the terms of
the proposal described in the Transfer Notice
(subject, however, to any change in such terms
permitted in the next paragraph) by delivery of
a notice of
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exercise of the Right of First Refusal within
thirty (30) days after the date when the
Transfer Notice was received by the Company.
If the Company fails to exercise its Right of
First Refusal within thirty (30) days after the
date when it received the Transfer Notice, you
may, not later than ninety (90) days following
receipt of the Transfer Notice by the Company,
conclude a transfer of the Stock subject to the
Transfer Notice on the terms and conditions
described in the Transfer Notice. Any proposed
transfer on terms and conditions different from
those described in the Transfer Notice, as well
as any subsequent proposed transfer by you,
shall again be subject to the Right of First
Refusal and shall require compliance with the
procedure described in the paragraph above. If
the Company exercises its Right of First
Refusal, the parties shall consummate the sale
of the Stock on the terms set forth in the
Transfer Notice within 60 days after the date
when the Company received the Transfer Notice
(or within such longer period as may have been
specified in the Transfer Notice); provided,
however, that in the event the Transfer Notice
provided that payment for the Stock was to be
made in a form other than lawful money paid at
the time of transfer, the Company shall have the
option of paying for the Stock with lawful money
equal to the present value of the consideration
described in the Transfer Notice.
In the case of any purchase of Stock under this
Right of First Refusal, at the option of the
Company, the Company may pay you the purchase
price in three or fewer annual installments.
Interest shall be credited on the installments
at the applicable federal rate (as determined
for purposes of Section 1274 of the Code) in
effect on the date on which the purchase is
made. The Company shall pay at least one-third
of the total purchase price each year, plus
interest on the unpaid balance, with the first
payment being made on or before the 60th day
after the purchase.
The Company's rights under this subsection shall
be freely assignable, in whole or in part, shall
inure to the benefit of its successors and
assigns and shall be binding upon any transferee
of the shares of Stock.
The Company's Right of First Refusal shall
terminate in the event that Stock is listed on
an established national or regional stock
exchange, is admitted for quotation on the
National Association of Securities Dealers
Automated Quotation System, or is publicly
traded in an established securities market.
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RIGHT TO REPURCHASE Following termination of your Service for any
reason, the Company shall have the right to
purchase all of those shares of Stock that you
have or will acquire under this option. If the
Company exercises its right to purchase such
shares, the purchase price shall be the Fair
Market Value of those shares on the date of
termination of Service. The Company will notify
you of its intention to purchase such shares,
and will consummate the purchase within 90 days
of your termination of Service or, in the case
of Stock acquired after your termination of
Service, within 90 days of the date of exercise.
The Company's rights of repurchase shall
terminate in the event that Stock is listed on
an established stock national or regional
exchange, is admitted for quotation on the
National Association of Securities Dealers
Automated Quotation System, or is publicly
traded in an established securities market.
RETENTION RIGHTS Your option or this Agreement do not give you
the right to be retained by the Company (or any
Parent, Subsidiaries or Affiliates) in any
capacity. The Company (and any Parent,
Subsidiaries or Affiliates) reserve the right to
terminate your Service at any time and for any
reason.
SHAREHOLDER RIGHTS You, or your estate or heirs, have no rights as
a shareholder of the Company until a certificate
for your option's shares has been issued. No
adjustments are made for dividends or other
rights if the applicable record date occurs
before your stock certificate is issued, except
as described in the Plan.
FORFEITURE OF RIGHTS If you should take actions in competition with
the Company, the Company shall have the right to
cause a forfeiture of your rights, including,
but not limited to, the right to cause you to
forfeit: (i) any outstanding Option, and (ii)
any gain recognized by you upon the exercise of
an Option during the period commencing twelve
(12) months prior to your termination of Service
with the Company due to taking actions in
competition with the Company and ending twelve
(12) months following such termination of
Service. Unless otherwise specified in an
employment or other agreement between the
Company and you, you take actions in competition
with the Company if you directly or indirectly,
own, manage, operate, join or control, or
participate in the ownership, management,
operation or control of, or are a proprietor,
director, officer, member, partner or an
employee or agent of, or a consultant to any
business, firm, corporation, partnership or
other entity which competes with any business in
which the Company or any of its Affiliates is
engaged during your employment or other
relationship with the Company or its Affiliates
or at the time of your termination of
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Service.
ADJUSTMENTS In the event of a stock split, a stock dividend
or a similar change in the Company stock, the
number of shares covered by this option and the
exercise price per Share may be adjusted (and
rounded down to the nearest whole number)
pursuant to the Plan. Your option shall be
subject to the terms of the agreement of merger,
liquidation or reorganization in the event the
Company is subject to such corporate activity.
LEGENDS All certificates representing the Stock issued
upon exercise of this option shall, where
applicable, have endorsed thereon the following
legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES
SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY
AND THE REGISTERED HOLDER, OR HIS OR HER
PREDECESSOR IN INTEREST. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY BY THE HOLDER OF RECORD OF THE SHARES
REPRESENTED BY THIS CERTIFICATE."
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
APPLICABLE LAW This Agreement will be interpreted and enforced
under the laws of the State of Delaware, other
than any conflicts or choice of law rule or
principle that might otherwise refer
construction or interpretation of this Agreement
to the substantive law of another jurisdiction.
THE PLAN The text of the Plan is incorporated in this
Agreement by reference. CERTAIN CAPITALIZED
TERMS USED IN THIS AGREEMENT ARE DEFINED IN THE
PLAN, AND HAVE THE MEANING SET FORTH IN THE
PLAN.
This Agreement and the Plan constitute the
entire understanding between you and the Company
regarding this option. Any prior
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agreements, commitments or negotiations
concerning this option are superseded
OTHER AGREEMENTS YOU AGREE, AS A CONDITION OF THE GRANT OF THIS
OPTION, THAT IN CONNECTION WITH THE EXERCISE OF
THE OPTION, YOU WILL EXECUTE SUCH DOCUMENT(s) AS
NECESSARY TO BECOME A PARTY TO ANY SHAREHOLDER
AGREEMENT OR VOTING TRUST AS THE COMPANY MAY
REQUIRE.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE
TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
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