EXHIBIT 10.27
AMENDMENT TO STOCK OPTION AGREEMENTS
THIS AMENDMENT dated as of March 11, 1999 amends each of the Incentive
Stock Option Agreements listed in APPENDIX A (collectively, the "Option
Agreements") by and between the undersigned optionee (the "Optionee") and Primix
Solutions Inc. (f/k/a OneWave, Inc., the "Company") under the Company's 1995
Stock Plan and 1996 Stock Plan (the "Stock Plans"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Option
Agreements or if not defined therein shall have the meanings ascribed to them in
the respective Stock Plans.
WHEREAS, the Company desires to provide for the acceleration of the
vesting of certain stock options in the event of certain transactions or
termination of employment without cause.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree that Section 1 of each of the Option Agreements be and hereby is amended
by deleting in its entirety the second paragraph of Section 1 and adding the
following:
"(a) EFFECT OF CERTAIN TRANSACTIONS. In the case of (a) the dissolution
or liquidation of the Company, (b) a merger, reorganization or consolidation in
which a majority of the outstanding voting power of the Company is acquired by
another person or entity (other than a holding company formed by the Company),
(c) the sale of all or substantially all of the assets of the Company to another
person or entity, or (d) the sale of fifty percent (50%) or more of the
outstanding stock of the Company to an unrelated person or entity (in each case,
a "Transaction"), other than a merger transaction to be accounted for as a
"pooling of interests" under XXX Xx. 00 in which the surviving entity assumes
this Stock Option (a "Pooling Transaction"), this Stock Option shall be deemed
fully vested and exercisable as of the closing or consummation of such
Transaction, provided that such acceleration and any notice of exercise of
options that become vested as of such closing or consummation shall in all cases
be subject to and contingent upon such closing or consummation. From and after
the closing or consummation of any such Transaction, other than a Pooling
Transaction, this Stock Option shall terminate and no longer be exercisable as
to any Option Shares unexercised on or prior to the closing or consummation date
of such Transaction, unless provision is made in such Transaction in the sole
discretion of the parties thereto for the assumption of this Stock Option or the
substitution for this Stock Option of a new stock option of the successor person
or entity or a parent or subsidiary thereof, if any, with such adjustment as to
the number and kind of shares and the per share exercise price as such parties
shall agree to. In the event of a Pooling Transaction, this Stock Option shall
remain in effect in accordance with its terms as provided herein and shall
become an obligation of the surviving entity, with appropriate adjustments to
the number and kind of shares and the per share exercise price as contemplated
by the Stock Plans. In the event of any Transaction subject to this Section, the
Company shall give to the Optionee written notice thereof at least fifteen (15)
days prior to the closing or anticipated consummation date, or the record date
for such transaction, if earlier.
(b) EFFECT OF TERMINATION OF EMPLOYMENT WITHOUT CAUSE. Notwithstanding
anything herein to the contrary, this Stock Option shall be deemed vested and
exercisable in full upon the date on which the Optionee's employment with the
Company and its Related Corporations is
terminated by the Company without Cause (as hereinafter defined) or by the
Optionee for Good Reason. For purposes hereof, "cause" for termination shall
mean: (i) dishonest statements or acts of the Optionee with respect to the
Company or any Related Corporation or acting in a manner that discredits or is
detrimental to the reputation, character or standing of the Company or any
Related Corporation; (ii) the commission by or indictment of the Optionee for
(A) a felony or (B) any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud, including, without limitation, any form of harassment
("indictment," for these purposes, means an indictment, probable cause hearing
or any other procedure pursuant to which an initial determination of probable or
reasonable cause with respect to such offense is made); (iii) the Optionee shall
commit a breach of any of the covenants, terms or provisions of the standard
Company employee agreements regarding inventions, proprietary rights,
confidentiality and non-competition; (iv) the Optionee shall have failed to
comply with written instructions from the Company's President or shall have
substantially failed to perform the Optionee's duties; or (v) gross negligence,
willful misconduct or insubordination of the Optionee with respect to the
Company or any Related Corporation. As used herein, the term "Good Reason" shall
mean the occurrence of any of the following events: (a) a substantial adverse
change in the nature or scope of the Optionee's responsibilities, authorities,
powers, functions or duties; (c) a reduction in the Optionee's annual base
salary except for across-the-board salary reductions similarly affecting all, or
substantially all, management employees; or (c) the relocation of the offices at
which the Optionee is principally employed to a location more than fifty (50)
miles from such offices."
Except as otherwise set forth herein, all other terms and conditions of
the Option Agreements shall remain in full force and effect.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to its conflict of laws
principles.
For the convenience of the parties and to facilitate execution, this
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same document.
PRIMIX SOLUTIONS INC.
By: /s/ LENNART MENGWAL
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Name: Xxxxxxx Xxxxxxxx
Title:Chief Executive Officer and President
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned.
Dated as of March 11, 1999 OPTIONEE:
/s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Optionee's Address:
c/o Primix Solutions Inc.
Xxx Xxxxxxx Xxxxxxxxxxx
Xxxxxxxxx, XX 00000
Designated Beneficiary:
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Beneficiary's Address:
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APPENDIX A
Incentive Stock Option Agreement between Xxxxx X. Xxxxxxx and the Company dated
September 30, 1996, with EXHIBIT A thereto as follows:
1. EXHIBIT A dated as of March 26, 1997 granting 10,000 shares under the 1996
Stock Plan;
2. EXHIBIT A dated as of October 1, 1997 granting 3,703 shares under the 1995
Stock Plan;
3. EXHIBIT A dated as of March 15, 1997 granting 2,222 shares under the 1995
Stock Plan;
4. EXHIBIT A dated as of October 23, 1996 granting 1,563 shares under the 1996
Stock Plan;
5. Exhibit A dated as of September 30, 1996 granting 19 shares under the 1996
Stock Plan; and
6. EXHIBIT A dated as of November 17, 1997 granting 25,000 shares under the
1996 Stock Plan.
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