FORM OF NON-QUALIFIED STOCK OPTION
AGREEMENT dated as of [_______________],
1999, between GREENFIELD ONLINE, INC., a
Connecticut corporation (the "Company"), and
[OPTIONEE] (the "Optionee").
The Company, acting through its Board of Directors or a
committee thereof, has granted to the Optionee, effective as of the date of this
Agreement, an option under the Company's 1999 Stock Option Plan (the "Plan"), a
copy of which is attached as Exhibit A hereto, to purchase Class A Common
Shares, $0.01 par value per share, of the Company (the "Class A Common Shares")
on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements contained in this Agreement, the parties hereby agree as
follows:
Section 1. Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
"Board" means the Board of Directors of the Company or the
Committee (as defined in the Plan).
"Plan" means the 1999 Stock Option Plan of the Company.
"Purchase Agreement" means the Stock Purchase and Redemption
Agreement dated as of May 17, 1999, among the Company and the other
parties thereto, as the same may be amended, modified or supplemented
from time to time.
"Shareholders' Agreement" means the Shareholders' Agreement
dated as of May 17, 1999, among the Company and the shareholders of the
Company, as the same may be amended, modified or supplemented from time
to time.
"Transfer" means, with respect to any Class A Common Shares or
Options, to sell, or in any other way transfer, assign, pledge,
distribute, encumber or otherwise dispose of, such Class A Common
Shares or Options, either voluntarily or involuntarily and with or
without consideration.
"Vested Shares" means the Class A Common Shares with respect
to which the Option is exercisable at any particular time.
The Plan. The terms and provisions of the Plan are hereby
incorporated into this Agreement as if set forth herein in their
entirety. In the event of a conflict between any
provision of this Agreement and the Plan, the provisions of the Plan
shall control. A copy of the Plan may be obtained from the Company by
the Optionee upon request. Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Plan.
Section 2. Option; Option Price. On the terms and subject to the
conditions of this Agreement, the Optionee shall have the option (the "Option")
to purchase up to [_________] Class A Common Shares of the Company (the "Option
Shares") at the price of $[______] per Class A Common Share (the "Option Price")
at the times and in the manner set forth herein. The Option is not intended to
qualify for federal income tax purposes as an "incentive stock option" within
the meaning of Section 422 of the Code.
Section 3. Term. The term of the Option (the "Option Term") shall
commence on the date hereof and expire on the tenth ---- ----------- anniversary
of the date hereof, unless the Option shall theretofore have been terminated in
accordance with the terms of the Plan (including Sections 7(b) or 12 thereof) or
this Agreement (the date of such expiration or termination, the "Vesting
Termination Date").
Section 4. Time of Exercise.
(a) Unless accelerated in the sole discretion of the
Committee, the Option shall become exercisable in accordance with the
following schedule:
Vesting Date ("Vesting Date") Percentage of Vested Shares
----------------------------- ---------------------------
[First anniversary of grant date] 25%
[insert each six-month anniversary] 12.5%
(b) The Option shall remain exercisable as to all Vested
Shares until the Vesting Termination Date. Option Shares that do not
constitute Vested Shares on the Vesting Termination Date shall not
become Vested Shares after the Vesting Termination Date.
Section 5. Procedure for Exercise.
(a) The Option may be exercised with respect to Vested
Shares, from time to time, in whole or in part (but for the purchase of
whole Common Shares only (as described in Section 9(c) of the Plan)),
by delivery of a written notice (the "Exercise Notice") from the
Optionee to the Secretary of the Company, which Exercise Notice shall:
(i) state that the Optionee elects to exercise the
Option;
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(ii) state the number of Vested Shares with respect
to which the Optionee is exercising the Option;
(iii) include any representations of the Optionee
required under Section 8 hereof;
(iv) include appropriate proof of the right of such
Person to exercise the Option in the event that the Option
shall be exercised by any Person other than the Optionee;
(v) state the date upon which the Optionee desires to
consummate the purchase of such Vested Shares (which date must
be prior to the end of the Option Term); and
(vi) comply with such further provisions consistent
with the Plan as the Committee may reasonably require.
(b) Payment of the Option Price for the Vested Shares to
be purchased on the exercise of the Option shall be made as provided in
Section 8(a) of the Plan.
(c) The Company shall be entitled to require as a
condition of delivery of the Vested Shares that the Optionee remit or,
in appropriate cases, agree to remit when due an amount in cash
sufficient to satisfy all current or estimated future federal, state
and local income tax withholding and the employee's portion of any
employment taxes relating thereto.
(d) The Optionee shall deliver to the Company a copy of
any election filed by the Optionee with the Internal Revenue Service
under Section 83(b) of the Code no later than 30 days following the
filing of such election with the Internal Revenue Service.
Section 6. No Rights as a Holder of Common Shares. The Optionee shall
not have any rights or privileges of a holder of Class A Common Shares with
respect to any Option Shares until the date of payment for such Option Shares
pursuant to the exercise of the Option.
Section 7. Restriction on Transfer of Options. Notwithstanding any
provision to the contrary in the Shareholders' Agreement, the Option cannot be
Transferred and may be exercised during the lifetime of the Optionee only by the
Optionee, subject to Section 10(b) of the Plan.
Section 8. Shareholders' Agreement. The Optionee acknowledges that this
Option and all Option Shares shall be subject to the provisions of the
Shareholders' Agreement which are applicable to Retained Shareholder Shares (as
such term is defined in the Shareholders' Agreement) in addition to the
provisions of this Agreement and the Plan. The Optionee is a Retained
Shareholder (as such term is defined in the Shareholders' Agreement) and agrees
to comply with all of the terms of the Shareholders' Agreement.
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Section 9. Restrictive Legend. No Options shall be granted, and no
Class A Common Shares shall be issued and delivered upon the exercise of Options
granted, unless and until the Company and/or the Optionee shall have complied
with all applicable laws, rules and regulations of all public agencies and
authorities applicable to the issuance and distribution of such Common Shares
and to the listing of such Class A Common Shares on any stock exchange on which
any of the shares of the capital stock of the Company may be listed. As a
condition of participating in the Plan, each Optionee agrees to comply with all
such laws, rules and regulations and agrees to furnish to the Company all
information and undertakings as may be required to permit compliance with such
laws, rules and regulations. The Committee in its discretion may, as a condition
to the exercise of any Option granted under the Plan, require an Optionee (i) to
represent in writing that the shares received upon exercise of an Option are
being acquired for investment and not with a view to distribution and (ii) to
make such other representations and warranties as are deemed appropriate by the
Company. All certificates representing Option Shares issued upon exercise of the
Option shall, unless otherwise determined by the Committee, have affixed thereto
the legend required by the Shareholders' Agreement.
Section 10. Notices. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given and delivered if personally delivered or if sent
by nationally-recognized overnight courier, by telecopy, or by registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
(a) if to the Company to:
Greenfield Online, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
Wake, See, Dimes & Bryncizka
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. Flatten
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (203)
with a copy to:
Greenfield Holdings, LLC
c/o InSight Capital Partners III, L.P.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Nissan, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Optionee, to him at:
[Optionee]
[Address]
Facsimile:
Telephone:
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery (or if such date is not a
business day, on the next business day after the date sent), (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
sent, (iii) in the case of telecopy transmission, when received (or if not sent
on a business day, on the next business day after the date sent), and (iv) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
Section 11. Waiver of Breach. The waiver by either party of a breach of
any provision of this Agreement must be in writing and shall not operate or be
construed as a waiver of any other or subsequent breach.
Section 12. Optionee's Undertaking. The Optionee hereby agrees to take
whatever additional actions and execute whatever additional documents the
Company may in its reasonable judgment deem necessary or advisable in order to
carry out or effect one or more of the obligations or restrictions imposed on
the Optionee pursuant to the express provisions of this Agreement and the Plan.
Section 13. Modification of Rights. The rights of the Optionee are
subject to modification and termination in certain events as provided in this
Agreement and the Plan. This
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Agreement may not be amended except by written agreement executed by the Company
and the Optionee.
Section 14. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York (without giving
effect to principles of conflicts of law).
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts together shall constitute but one agreement.
Section 16. Entire Agreement; The Plan. This Agreement and the Plan
(and the other writings referred to herein) constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior written or oral negotiations, commitments, representations
and agreements with respect thereto.
Section 17. Severability. In the event any one or more of the
provisions of this Agreement should be held invalid, illegal or unenforceable in
any respect in any jurisdiction, such provision or provisions shall be
automatically deemed amended, but only to the extent necessary to render such
provision or provisions valid, legal and enforceable in such jurisdiction, and
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the date first written above.
GREENFIELD ONLINE, INC.
By:________________________________
Name:
Title:
________________________________
[Optionee]
EXHIBIT A
1999 Stock Option Plan
[See attached]
GREENFIELD ONLINE, INC.
FIRST AMENDMENT
TO NON-QUALIFIED STOCK OPTION AGREEMENT
THIS FIRST AMENDMENT ("Amendment") is made effective as of March __,
2000 to that certain Non-Qualified Stock Option Agreement (the "Agreement")
dated as of _________________, by and between Greenfield Online, Inc., a
Delaware corporation (the "Company") and ____________ ("Optionee").
WHEREAS, pursuant to the Agreement, the Company granted Optionee a
non-qualified option to purchase shares of its common stock pursuant to the
Company's 1999 Stock Option Plan, which option is subject to the vesting
schedule set forth in Section 4(a) of the Agreement;
WHEREAS, Optionee is a key employee of the Company that the Company
desires to incentivize and treat fairly; and
WHEREAS, Optionee and the Company have agreed to amend the Agreement in
order to provide for an acceleration of vesting in certain circumstances when
Optionee's employment with the Company terminates after a Corporate Transaction
(as defined below) in the Company;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties agree to amend the Agreement as follows:
1. The following defined terms shall be added to Section 1:
"Cause" means a good faith finding by the Board of Directors
of the Company that Optionee has: (i) engaged in conduct that
constitutes gross malfeasance of office or flagrant disloyalty to the
Company, dishonesty, fraud, or theft; (ii) willfully and repeatedly
failed to carry out the reasonable directions of the Board or has
engaged in conduct in clear violation of material policies of the
Company; or (iii) been convicted of or entered a plea of nolo
contendere to, a felony or crime under circumstances demonstrably
injurious to the Company. Any termination by the Company of Optionee
that is not for Cause shall be deemed to be without Cause.
"Corporate Transaction" means any of the following events:
(i) Consummation of any merger or consolidation of
the Company in which the Company is not the continuing or surviving
corporation, or pursuant to which shares of Common Stock are converted
into cash, securities, or other property, if following such merger or
consolidation the holders of the Company's outstanding voting
securities immediately prior to such merger or consolidation own less
than 66-2/3% of the outstanding voting securities of the surviving
corporation;
(ii) Consummation of any sale, lease, exchange, or
other transfer, in one transaction or a series of related transactions,
of all or substantially all of the Company's assets, other than a
transfer of the Company's assets to a majority-owned subsidiary
corporation of the Company; or
(iii) Approval by the holders of the Common Stock of
any plan or proposal for the liquidation or dissolution of the Company.
Ownership of voting securities shall take into account and
shall include ownership as determined by applying Rule 13d-3(d)(1)(i)
(as in effect on the date of adoption of the Plan) under the Exchange
Act.
"Good Reason" means any one of the following: (i) a material
alteration of Optionee's title and status in the Company or assignment
to duties and responsibilities inconsistent with his position; (ii) the
relocation of Optionee to any place greater than twenty five (25) miles
from his current principal location; (iii) the relocation of the
Company's corporate headquarters to a location more than 10 miles from
its current location in Wilton Connecticut; or (iv) a substantial
reduction of Optionee's compensation package, unless such a reduction
is made by the Company ratably with all other employees at similar
levels of responsibility. Any resignation by Optionee that is not for
Good Reason shall be deemed to be without Good Reason.
2. The first sentence of Section 4(a) is amended by inserting the words
"or pursuant to Section 4(c)" after the word "Committee".
3. A new Section 4(c) is added as follows:
(c) In the event that (i) the Company is subject to a
Corporate Transaction, and (ii) within one (1) year of such Corporate
Transaction, the Company terminates Optionee without Cause, or Optionee
resigns his employment within sixty (60) days of an event that
constitutes a Good Reason, all of the Option Shares shall immediately
become Vested Shares and the Option shall be exercisable with respect
to all such Option Shares for a period of sixty (60) days after such
resignation or termination. Upon the expiration of such sixty (60) day
period, the Option shall terminate with respect to any Option Shares as
to which it is not exercised.
4. The parties hereby acknowledge and reaffirm that all of the terms
and conditions of the Agreement not specifically amended herein shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first mentioned above.
GREENFIELD ONLINE, INC. OPTIONEE
By __________________________ ________________________
Its _________________________
