EXHIBIT 10.3
QUADRACOMM, INC.
2001 STOCK OPTION / PERFORMANCE STOCK PLAN
STOCK OPTION AGREEMENT
(NONQUALIFIED STOCK OPTION)
EMPLOYEE/OPTIONEE: <>
NUMBER OF SHARES: <> Shares
OPTION EXERCISE PRICE: $ _________ per Share
DATE OF GRANT: <>
EXERCISE TERM: A Period of _____ Years from the Date of Xxxxx
VESTING SCHEDULE: Percentage
of Shares Date (from Grant Date)
---------- ----
______* __________
______* __________
______* __________
______* __________
*rounded to the next whole number of Shares
THIS OPTION AGREEMENT (the "AGREEMENT") is entered into effective as
of the _______ day of __________, 2001 by and between QUADRACOMM, INC., a
Colorado corporation (the "COMPANY"), and the individual designated above (the
"OPTIONEE").
RECITALS
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A. The 2001 Stock Option / Performance Stock Plan (the "PLAN") was
adopted by the Company on July 9, 2001; and
B. The Optionee performs valuable services for the Company, a
Subsidiary or a Parent; and
C. As of the date hereof, the Board of Directors of the Company granted
the Option as provided herein;
NOW, THEREFORE, the parties agree to the terms and conditions herein,
including the recitals.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 1
1. GRANT OF OPTION.
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1.1 Option. An option to purchase shares of the Company's Common
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Stock, $0.001 par value per share, (the "SHARES") is hereby granted to the
Optionee (the "OPTION").
1.2 Number of Shares. The number of Shares that the Optionee can
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purchase upon exercise of the Option and the dates upon which the Option can
first be exercised are set forth above.
1.3 Option Exercise Price. The price the Optionee must pay to exercise
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the Option (the "OPTION EXERCISE PRICE") is set forth above.
1.4 Date of Grant. The date the Option is granted (the "DATE OF
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GRANT") is set forth above.
1.5 Type of Option. The Option is intended to be a Nonqualified Stock
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Option. It is not intended to qualify as an Incentive Stock Option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time, or any successor provision thereto.
1.6 Construction. This Agreement shall be construed in accordance and
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consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference) and, except as otherwise expressly
set forth herein, the capitalized terms used in this Agreement shall have the
same definitions as set forth in the Plan.
1.7 Condition. The Option is conditioned on the Optionee's execution
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of this Agreement. If this Agreement is not executed by the Optionee it may be
canceled by the Board.
2. DURATION.
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The Option shall be exercisable to the extent and in the manner provided
herein during the Exercise Term, which is set forth above; provided, however,
that the Option may be earlier terminated as provided in the Plan or in Section
1.7 or Section 5 hereof.
3. VESTING.
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The Option shall vest, and may be exercised, with respect to the Shares, on
or after the dates set forth above, subject to earlier termination of the Option
as provided in Section 1.7 and Section 5 hereof or in the Plan. The right to
purchase the Shares as they become vested shall be cumulative and shall continue
during the Exercise Term unless sooner terminated as provided herein.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 2
4. MANNER OF EXERCISE AND PAYMENT.
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4.1 To exercise the Option, the Optionee must deliver a completed copy
of the OPTION EXERCISE FORM, attached hereto as EXHIBIT A, to the address
indicated on such Form or such other address designated by the Company from time
to time. The Option may be exercised in whole or in part with respect to the
vested Shares; provided, however, the Committee may establish a minimum number
of Shares (e.g., 100) for which an Option may be exercised at a particular time.
Within thirty (30) days of delivery of the Option Exercise Form, the Company
shall deliver certificates evidencing the Shares to the Optionee, duly endorsed
for transfer to the Optionee, free and clear of all liens, security interests,
pledges or other claims or charges. Contemporaneously with the delivery of the
Option Exercise Form, Optionee shall tender the Option Exercise Price to the
Company, by cash, check, wire transfer or such other method of payment (e.g.,
delivery or attestation of Shares already owned) as may be acceptable to the
Committee pursuant to the Plan.
4.2 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to any Shares subject to the Option
until (i) the Option shall have been exercised pursuant to the terms of this
Agreement and the Optionee shall have paid the full purchase price for the
number of Shares in respect of which the Option was exercised, (ii) the Company
shall have issued and delivered the Shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
5. TERMINATION OF EMPLOYMENT.
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5.1 Termination of Employment Due to Death. In the event of the death
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of the Optionee, who at the time of his or her death was an Employee and who had
been in Continuous Status as an Employee since the date of the grant of the
option, the Option shall terminate on the earlier of (i) six (6) months after
the date of the Optionee's death, or (ii) the expiration date otherwise provided
in this Agreement. Under these circumstances, the Option will be exercisable at
any time prior to such termination by the Optionee's estate, or by such person
or persons who have acquired the right to exercise the Option by bequest or by
inheritance or by reason of the death of the Optionee.
5.2 Termination of Employment Due to Disability. If Optionee's
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employment is terminated at any time during the Exercise Term by reason of a
disability (within the meaning of Section 22(e)(3) of the Code) and if the
Optionee had been in Continuous Status as an Employee at all times between the
date of grant of the Option and termination of his status as an Employee, the
Option terminates on the earlier of (i) one (1) year after the date of
termination of his status as an Employee, or (ii) the expiration date otherwise
provided in this Agreement.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 3
5.3 Termination of Employment for Other Reasons. If Optionee's status
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as an Employee is terminated by the Optionee at any time after the grant of an
Option for any reason other than death or disability, as provided in Sections
5.1 and 5.2, and not for "cause" as provided below, the Option terminates on the
earlier of (i) thirty (30) days following termination of Optionee's status as an
Employee, or (ii) the expiration date otherwise provided in this Agreement. If
Optionee's status as an Employee is terminated for "cause" (such termination
being referred to as a "Termination for Cause") at any time by the Company after
the grant of an Option by the Company, then the Option terminates on the date of
termination of Optionee's status as an Employee. For purposes of this Section
5.3, Termination for Cause shall mean a termination due to objective evidence of
any of the following: (i) material dishonesty related to employment; (ii)
fraud; (iii) commission of a felony or a crime involving moral turpitude; (iv)
theft of Company property or intentional destruction of Company property without
good reason and causing significant damage; (v) physical attack resulting in
physical injury to a fellow employee or other individual; (vi) unsanctioned
intoxication at work; (vii) use of unlawful drugs at work; (viii) any form of
substance abuse (including alcohol) to the extent that it significantly impairs
the performance of duties; or (ix) gross insubordination or gross dereliction of
duty.
5.4 Employment by Subsidiary. For purposes of this Section and Section
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8, employment with the Company includes employment with any Parent or Subsidiary
of the Company and service as a Director of the Company or any Parent or
Subsidiary shall be considered employment with the Company. A change of
employment between the Company and any Parent or Subsidiary (or between
Subsidiaries or between a Subsidiary and a Parent) is not a termination of
employment under this Agreement.
6. TRANSFERABILITY.
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Except as provided by the following sentence, the Option shall not be
transferable other than by will or by the laws of descent and distribution. For
a period of [_____________] months following the Date of Grant, the Option may
be transferred [in whole or in part] [to the extent of ___________ shares] to
the following persons: [list names of persons]; but to no other person. During
the lifetime of the Optionee, the Option shall be exercisable only by the
Optionee or a transferee permitted by the preceding sentence. Optionee hereby
represents and covenants that any transfer of the Option shall be to a "family
member" as that term is defined by the General Instructions to Form S-8, through
a gift or a domestic relations order. Optionee shall provide the Company with
notice of any such transfer prior to the date [___________] months following the
Date of Grant and shall further provide to the Company any further documentation
with respect to the transfer that the Company reasonably requests.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 4
7. RESTRICTIONS ON THE OPTIONS; RESTRICTIONS ON THE SHARES.
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The Option may not be exercised at any time unless, in the opinion of
counsel for the Company, the issuance and sale of the Shares issued upon such
exercise is exempt from registration under the Securities Act of 1933, as
amended, or any other applicable federal or state securities law, rule or
regulation, or the Shares have been duly registered under such laws. The
Company shall not be required to register the Shares issuable upon the exercise
of the Option under any such laws. Unless the Shares have been registered under
all applicable laws, the Optionee shall represent, warrant and agree, as a
condition to the exercise of the Option, that the Shares are being purchased for
investment only and without a view to any sale or distribution of such Shares
and that such Shares shall not be transferred or disposed of in any manner
without registration under such laws, unless it is the opinion of counsel for
the Company that such a disposition is exempt from such registration. The
Optionee acknowledges that an appropriate legend, in such form as the Company
shall determine, giving notice of the foregoing restrictions shall appear
conspicuously on all certificates evidencing the Shares issued upon the exercise
of the Option.
The Optionee also acknowledges and agrees that, in connection with any
public offering of the Company's stock, upon request of the Company or the
underwriters managing any underwritten public offering of the Company's stock
and making such request with the approval of the Company's Board of Directors,
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any of his Shares without the prior written consent of
the Company or such underwriters, as the case may be, from the effective date of
such registration for so long as the Company or the underwriters may specify,
but in any event not to exceed 180 days.
8. NO RIGHT TO CONTINUED EMPLOYMENT.
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Nothing in this Agreement or the Plan shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of employment by
the Company or any Parent or Subsidiary, nor shall this Agreement or the Plan
interfere in any way with the right of the Company or a Parent or Subsidiary to
terminate the Optionee's employment at any time.
9. ADJUSTMENTS UPON CERTAIN EVENTS.
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In the event of a change in capitalization, such as a stock split, the
Committee shall make appropriate adjustments to the number and class of Shares
or other stock or securities subject to the Option and the purchase price for
such Shares or other stock or securities. The Committee's adjustment shall be
made in accordance with the provisions of Section 7(j) of the Plan and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
Subject to Section 7(l) of the Plan, upon a merger, consolidation,
separation, reorganization or other business combination involving the Company,
the Option shall be assumed or replaced with a substitute equivalent option as
provided under the Plan or any successor plan (whether created by the Company or
its acquirer).
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 5
10. WITHHOLDINGS OF TAXES.
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The Company shall have the right to deduct from any distribution of cash to
the Optionee an amount equal to the federal, state and local income taxes and
other amounts as may be required by law to be withheld (the "Withholdings
Taxes") with respect to the Option. If the Optionee is entitled to receive
Shares upon exercise of the Option, the Optionee shall pay the Withholdings
Taxes (if any) to the Company in cash prior to the issuance of such Shares. In
satisfaction of the Withholdings Taxes, the Optionee may make a written election
(the "Tax Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the Shares issuable to him or her upon
exercise of the Option, having an aggregate Fair Market Value equal to the
Withholdings Taxes, provided that, if the Optionee may be subject to liability
under Section 16(b) of the Exchange Act, the election must comply with the
requirements applicable to Share transactions by such Optionees.
11. MODIFICATION OF AGREEMENT.
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This Agreement may be modified, amended, suspended or terminated, and any
terms or conditions may be waived, only by a written instrument executed by the
parties hereto.
12. SEVERABILITY.
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Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such Holdings and shall
continue in full force in accordance with their terms.
13. GOVERNING LAW.
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The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Colorado without giving
effect to the conflicts of laws principles thereof.
14. SUCCESSORS IN INTEREST.
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This Agreement shall be binding upon, and inure to the benefit of, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Optionee's heirs and legal
representatives. All obligations imposed upon the Optionee and all rights
granted to the Company under this Agreement shall be final, binding and
conclusive upon the Optionee's heirs, executors, administrators and successors.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 6
15. RESOLUTION OF DISPUTES.
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Any dispute or disagreement which may arise under, or as a result of, or in
any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Board. Any determination made hereunder
shall be final, binding and conclusive on the Optionee and the Company for all
purposes.
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QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 7
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
QUADRACOMM, INC.
By:
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Name:
----------------------------
Title:
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By signing below, Optionee hereby accepts the Option subject to all its
terms and provisions and agrees to be bound by the terms and provisions of the
Plan. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors of the Company, and of
the Committee responsible for administration of the Plan, upon any questions
arising under the Plan. Optionee authorizes the Company to withhold, in
accordance with applicable law, from any compensation payable to him or her, any
taxes required to be withheld by federal, state or local law as a result of the
grant, existence or exercise of the Option or subsequent sale of the Shares.
OPTIONEE
Signature:
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Name: <>
[EXHIBIT FOLLOWS]
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Nonqualified Stock Option Agreement
Page 8
EXHIBIT A
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OPTION EXERCISE FORM
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I, _____________________________, do hereby exercise the Option with a Date
of Grant of ___________________, ______ granted to me pursuant to the Option
Agreement. The Shares being purchased and the Total Option Exercise Price are
set forth below:
Number of Shares: ________________ Shares
Option Exercise Price Per Share x $ ____________ per Share
Total Option Exercise Price: = $ ____________.
The Total Option Exercise Price is included with this Form.
--------------------------------- Date: ___________________
Signature
Send or deliver this Form with an original signature to
QuadraComm, Inc.
Attn: [President or Chief Executive Officer]
[Address]
EXHIBIT A
