NON-QUALIFIED STOCK OPTION AGREEMENT OF NEXTERA ENTERPRISES, INC. (Independent Director)
EXHIBIT 10.18
THIS AGREEMENT is made by and between Nextera Enterprises, Inc., a Delaware corporation (the
“Company”), and an Independent Director of the Company
(“Optionee”).
WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its
Class A Common Stock;
WHEREAS, the Company wishes to carry out the Plan (the terms of which are hereby incorporated
by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined that it is to the
advantage and best interest of the Company and its stockholders to grant the Non-Qualified Option
provided for herein to the Optionee.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have the meaning specified
below unless the context clearly indicates to the contrary. The masculine pronoun shall include
the feminine and neuter, and the singular the plural, where the context so indicates. All
capitalized terms used herein without definition shall have the meanings ascribed to such terms in
the Plan.
Section 1.1 — Agreement
“Agreement” shall mean this Non-Qualified Stock Option Agreement of Nextera
Enterprises, Inc.
Section 1.2 Option
“Option” shall mean the option to purchase Class A Common Stock of the Company granted
under this Agreement. This Option shall not be an incentive stock option within the meaning of
Section 422 of the Code.
Section 1.3 — Plan
“Plan” shall mean The Amended and Restated 1998 Equity Participation Plan of Nextera
Enterprises, Inc, as amended.
ARTICLE II
GRANT OF OPTION
Section 2.1 — Grant of Option
The Company grants to the Optionee the option to purchase any part or all of an aggregate of
shares of its Class A Common Stock upon the terms and conditions set forth in this
Agreement and the Plan. Such Option shall not be an “Incentive Stock Option” within the meaning of
Section 422 of the Code.
Section 2.2 — Purchase Price
The purchase price of the shares of stock covered by this Option shall be equal to $ per
share without commission or other charge.
Section 2.3 – Grant Date
The Option is granted effective as of (the “Grant Date”).
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 — Commencement of Exercisability
(a) The Option shall become exercisable in installments as follows:
(i) The first installment shall consist of twenty-five percent (25%) of the shares of
Class A Common Stock covered by the Option and shall become exercisable on the first
anniversary of the Grant Date.
(ii) The second installment shall consist of twenty-five percent (25%) of the shares of
Class A Common Stock covered by the Option and shall become exercisable on the second
anniversary of the Grant Date.
(iii) The third installment shall consist of twenty-five percent (25%) of the shares of
Class A Common Stock covered by the Option and shall become exercisable on the third
anniversary of the Grant Date.
(iv) The fourth installment shall consist of twenty-five percent (25%) of the shares of
Class A Common Stock covered by the Option and shall become exercisable on the fourth
anniversary of the Grant Date.
(b) Subject to Section 3.4, no portion of the Option which is unexercisable at Termination of
Directorship shall thereafter become exercisable.
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Section 3.2 — Duration of Exercisability
The installments provided for in Section 3.1 hereof are cumulative. Each such installment
which becomes exercisable pursuant to Section 3.1 hereof shall remain exercisable until it becomes
unexercisable under Section 3.3 or as otherwise provided under the Plan.
Section 3.3 — Expiration of Option
The Option may not be exercised to any extent by anyone after the first to occur of the
following events:
(a) The expiration of ten (10) years from the Grant Date; or
(b) The expiration of ninety (90) days from the date of the Optionee’s Termination of
Directorship for any reason except death or Disability or Termination for Cause; or
(c) The expiration of one hundred eighty (180) days from the date of the Optionee’s
Termination of Directorship due to the Optionee’s death or Disability; or
(d) The date of the Termination of Directorship if such termination qualifies as a Termination
for Cause.
Section 3.4 — Acceleration of Exercisability
Notwithstanding Section 3.1 hereof, all Options shall become fully exercisable immediately
upon the Optionee’s Termination of Directorship if such termination occurs due to the Optionee’s
death or Disability.
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 — Person Eligible to Exercise
During the lifetime of the Optionee, only the Optionee may exercise the Option or any portion
thereof. After the death of the Optionee, any exercisable portion of the Option may, prior to the
time when the Option becomes unexercisable under Section 3.3 hereof or as otherwise provided under
the Plan, be exercised by the Optionee’s personal representative or by any person empowered to do
so under the deceased Optionee’s will or under the then applicable laws of descent and
distribution.
Section 4.2 — Partial Exercise
Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be
exercised in whole or in part at any time prior to the time when the Option or portion thereof
becomes unexercisable under Section 3.3 hereof or as otherwise provided under the Plan; provided,
however, that each partial exercise shall be for not less than one hundred (100) shares and shall
be for whole shares only.
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Section 4.3 — Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised solely by delivery to the
Secretary or his office of all of the following prior to the time when the Option or such portion
becomes unexercisable under Section 3.3 hereof or as otherwise provided under the Plan:
(a) A written notice in the form of Exhibit A hereto stating that the Option, or a
portion thereof, is exercised. The notice shall be signed by the Optionee or other person then
entitled to exercise the Option or such portion; and
(b) (i) Full cash payment to the Secretary of the Company for the shares with respect to which
the Option or portion is exercised; or
(ii) With the consent of the Committee, shares of the Company’s Class A Common Stock which
have been owned by the Optionee for a period of more than six months, duly endorsed for transfer to
the Company, with a Fair Market Value on the date of delivery equal to the aggregate exercise price
of the Option or exercised portion thereof; or
(iii) With the consent of the Committee, payment, in whole or in part, through the delivery of
property of any kind which constitutes good and valuable consideration;
(iv) With the consent of the Committee, payment, in whole or in part, through the delivery of
a notice that the Holder has placed a market sell order with a broker with respect to shares of
Class A Common Stock then issuable upon exercise of the Option, and the broker timely pays a
sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option
exercise price; or
(v) With the consent of the Committee, any combination of the consideration provided in the
foregoing subparagraphs (i), (ii) and (iii); provided, however, that the payment in
the manner prescribed in the preceding paragraphs shall not be permitted to the extent that the
Committee determines that payment in such manner shall result in an extension or maintenance of
credit, an arrangement for the extension of credit, or a renewal or an extension of credit in the
form of a personal loan to or for any Director or executive officer of the Company that is
prohibited by Section 13(k) of the Exchange Act or other applicable law; and
(c) Full payment to the Company (or other employer corporation) of all amounts which, under
federal, state or local tax law, it is required to withhold upon exercise of the Option; or with
the consent of the Committee, the consideration described in clauses (ii) and (iii) of Section
4.3(b) above equal to the sums required to be withheld, may be used to make all or part of such
payment; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 hereof by
any person or persons other than the Optionee, appropriate proof of the right of such person or
persons to exercise the Option.
Section 4.4 — Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of the Option, or any portion thereof, may
be either previously authorized but unissued shares or issued shares which have then been
reacquired by the Company. Such shares shall be fully paid and nonassessable. The Company shall
not be required
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to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise
of the Option or portion thereof prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing or quotation on all stock exchanges or
marketplaces on which such class of stock is then listed or quoted; and
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Committee shall, in its absolute discretion, deem
necessary or advisable; and
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Committee shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state or local tax law, the Company (or other employer corporation)
is required to withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise of the Option as the
Committee may from time to time establish for reasons of administrative convenience.
Section 4.5 — Rights as Stockholder
The holder of the Option shall not be, nor have any of the rights or privileges of, a
stockholder of the Company in respect of any shares purchasable upon the exercise of any part of
the Option unless and until certificates representing such shares shall have been issued by the
Company to such holder.
ARTICLE V
OTHER PROVISIONS
Section 5.1 — Administration
The Committee shall have the power to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be final and binding
upon the Optionee, the Company and all other interested persons. No member of the Committee shall
be personally liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Option. In its absolute discretion, the Board may at any time and from
time to time exercise any and all rights and duties of the Committee under the Plan and this
Agreement except with respect to matters which under Rule 16b-3 or Section 162(m) of the Code, or
any regulations or rules issued thereunder, are required to be determined in the sole discretion of
the Committee.
Section 5.2 — Option Not Transferable
Neither the Option nor any interest or right therein or part thereof shall be sold, pledged,
assigned, or transferred in any manner other than by will or the laws of descent and distribution,
unless
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and until the Option has been exercised (and, in such event, solely in accordance with the terms
and conditions of this Agreement and the Plan), or the shares underlying the Option have been
issued, and all restrictions applicable to such shares have lapsed. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts, contracts or engagements
of the Optionee or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect, except to the extent that such
disposition is permitted by the preceding sentence.
Section 5.3 — Shares to Be Reserved
The Company shall at all times during the term of the Option reserve and keep available such
number of shares of Class A Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
Section 5.4 — Notices
Any notice to be given under the terms of this Agreement to the Company shall be addressed to
the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed
to him at the address given beneath his signature hereto. By a notice given pursuant to this
Section 5.4, either party may hereafter designate a different address for notices to be given to
him. Any notice which is required to be given to the Optionee shall, if the Optionee is then
deceased, be given to the Optionee’s personal representative if such representative has previously
informed the Company of his status and address by written notice under this Section 5.4. All such
notices and communications shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five business days after being deposited in the mail, postage prepaid, if
mailed; when answered back if telexed; when receipt acknowledged, if telecopied; and the next
business day after timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.
Section 5.5 — Titles
Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
Section 5.6 — Construction
This Agreement shall be administered, interpreted and enforced under the internal laws of the
State of Delaware without regard to conflicts of laws thereof.
Section 5.7 — Conformity to Securities Laws
The Optionee acknowledges that the Plan is intended to conform to the extent necessary with
all provisions of the Securities Act and the Exchange Act and any and all regulations and rules
promulgated by the Securities and Exchange Commission thereunder, including without limitation Rule
16b-3. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the
Option is granted and may be exercised, only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be
deemed amended to the extent necessary to conform to such laws, rules and regulations.
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Section 5.8 — Amendments
This Agreement and the Plan may be amended without the consent of the Optionee provided that
such amendment would not impair any rights of the Optionee under this Agreement. No amendment of
this Agreement shall, without the consent of the Optionee, impair any rights of the Optionee under
this Agreement.
Section 5.9 — Incorporation of Plan
This Agreement is made pursuant to the provisions of the Plan which is incorporated by
reference herein. Terms used herein shall have the meaning employed by the Plan, unless the
context clearly requires otherwise. In the event of a conflict between the provisions of the Plan
and the provisions of this Agreement, the provisions of the Plan shall govern.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
Dated:
| NEXTERA ENTERPRISES, INC., a Delaware corporation |
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| By | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Print Name: |
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| Optionee | ||||||||||
| Address | ||||||||||
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Exhibit A
NEXTERA ENTERPRISES, INC.
NOTICE OF EXERCISE OF OPTION
NOTICE OF EXERCISE OF OPTION
Name:
I hereby give notice of the exercise of the following shares:
| Type of | Date | Number of | Option | Payment | ||||
| Option | Granted | Shares | Price | Due | ||||
| X | = | |||||||
Method of
Payment: Personal Check Wire Transfer Previously Owned Shares
Payment: Personal Check Wire Transfer Previously Owned Shares
In the case of an exercise using previously-owned shares, I hereby certify ownership of sufficient
number of shares of Class A Common Stock for a period of at least six months to effect such
exercise.
Tax Withholding
Method: Personal Check Wire Transfer
Method: Personal Check Wire Transfer
Address to be used for Stockholder Mailings:
Date
|
Optionee’s Signature |
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Section 10b-5) REMINDERS Both the federal securities laws and Company policy
prohibit transactions in the Company’s Common Stock at a time when you may be in possession of
material information about the Company which has not been publicly disclosed. This also applies to
members of your household, anyone receiving information regarding the Company from you, as well as
all others whose transactions may be attributable to you. Material information, in short, is any
information which could affect the stock price. Either positive or negative information may be
material.
You may be subject to additional legal restrictions and requirements. Contact the Company’s legal
counsel with any questions.