EXHIBIT 10.12
UNITED SHIPPING & TECHNOLOGY, INC.
NON-STATUTORY
STOCK OPTION AGREEMENT
THIS non-statutory STOCK OPTION AGREEMENT (the "Agreement") is made
effective as of October 16, 2000, by and between United Shipping & Technology,
Inc., a Utah corporation (the "Company"), and ___________ (the "Optionee"). This
Agreement is specifically intended to be "outside" the Company's 2000 Stock
Option Plan (the "Plan"). However, for purposes of convenience only, unless
otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings herein.
WITNESSETH:
WHEREAS, as an incentive to the Optionee and in exchange for Optionee's
covenants as set forth herein, which the Optionee acknowledges are for the
benefit of the Company, the Company desires to make grant certain non-statutory
options outside the Plan to the Optionee;
NOW THEREFORE, in consideration of the foregoing recitals, which are
made a part hereof, and the mutual covenants hereinafter set forth, the parties
hereto agree as follows:
1. Grant of Option. Subject to the terms and conditions of this
Agreement and the definitions set forth in the Plan, which are used herein for
convenience only, the Company hereby grants to the Optionee an option (the
"Option") to purchase a total of 250,000 shares of Common Stock (the "Shares"),
at the price determined as provided herein.
2. Nature of the Option. This Option is not intended to qualify as an
Incentive Stock Option as defined in Section 422 of the Code.
3. Exercise Price. The exercise price for each share of Common Stock is
$3.531 (the "Exercise Price") representing the fair market value per share of
the Common Stock on the date of grant.
4. Exercise of Option. This Option shall be exercisable during its term
in accordance with the following provisions and the other terms and conditions
of this Agreement:
(i) Right to Exercise.
(a) Subject to the other terms hereof regarding the
exercisability of this Option, this Option shall be
exercisable cumulatively to the extent it is vested pursuant
to the vesting schedule as more completely described in
Exhibit A attached hereto and incorporated herein by
reference.
(b) This Option may not be exercised for a fraction
of a Share, and must be exercised for no fewer than one
hundred (100) Shares, or such lesser number of Shares as may
be vested.
(c) In the event of Optionee's death, disability or
termination of employment for Good Reason, the exercisability
of the Option is governed by Sections 7 through 11 below,
subject to the restrictions and limitations contained in this
Agreement.
(d) In no event may this Option be exercised after
the date of expiration of the term of this Option as set forth
in Section 12 below.
(ii) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being exercised,
and such other representations and agreements as to the holder's
investment intent with respect to such Shares of Common Stock as may be
required by the Company pursuant to the provisions of this Agreement.
Such written notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the Secretary of the
Company, or to such other person or firm as the Secretary shall
designate. The written notice shall be accompanied by payment of the
exercise price as set forth in Section 6 hereof. Until certificates for
the Shares are issued to the Optionee, such Optionee shall not have any
rights as a Shareholder of the Company.
No Shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
5. Optionee's Representations. In the event the Shares purchasable
pursuant to the exercise of this Option (the "Option Shares") have not been or
do not continue to be registered under the Securities Act of 1933, as amended,
as a condition to the exercise of this Option, Optionee shall, concurrently with
the exercise of all or any portion of this Option, deliver to the Company such
investment representations as the Company may require.
6. Method of Payment. Payment of the Exercise Price shall be by (i)
cash; (ii) check, bank draft or money order; (iii) if authorized by the Board of
Directors of the Company, by delivery of Common Stock of the Company (valued at
the fair market value thereof on the date of exercise) or (iv) by delivery of a
combination of cash and Common Stock. The Board of Directors may, in order to
prevent any possible violation of law, require the Exercise Price to be paid in
cash. In the event the Shares purchasable pursuant to the exercise of this
Option have been registered under the Securities Act of 1933, payment of the
Exercise Price may be made pursuant to a Broker Exercise Notice. For purposes of
this Section 6, a Broker Exercise Notice shall mean a written notice from the
Optionee to the Company's Corporate Secretary, made on a form and in a manner as
the Board of Directors may from time to time determine, pursuant to which the
Optionee irrevocably elects to exercise all or any portion of an Option and
irrevocably directs the Company to deliver the Common Stock certificates to be
issued to such Optionee upon such Option exercise directly to a "broker" or
"dealer" (within the meaning of Section 3(a) of the Exchange Act). A Broker
Exercise Notice must be accompanied by or contain irrevocable instructions to
the broker or dealer: (i) to promptly sell a sufficient number of shares of such
Common Stock or to loan the Optionee a sufficient amount of money to pay the
exercise price for the Options and to fund any related employment and
withholding tax obligations to which the Broker Exercise Notice relates; and
(ii) to promptly remit such sums to the Company upon the broker's or dealer's
receipt of the certificates.
2
7. Compliance With Laws and Regulations. This Option and the obligation
of the Company to sell and deliver Shares hereunder shall be subject to all
applicable federal and state laws, rules and regulations, the requirements of
any stock exchange upon which the Shares may then be listed, and to such
approvals by any government or regulatory agency as may be required. In
addition, this Option shall not be exercisable, and the Company shall not be
required to issue or deliver any certificates for Shares prior to (i) the
listing of such Shares on Nasdaq or any stock exchange on which the Company's
Stock may then be listed, and (ii) the completion of any registration or
qualification of such Shares under any federal or state law, or any rule or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, this Option may
not be exercised if its exercise, or the issuance of Shares upon such exercise,
or the method of payment of consideration for such Shares would constitute a
violation of any applicable federal or state securities or other law or
regulation.
8. Disability of Optionee. In the event of the complete or partial
mental or physical disability of the Optionee such that the Optionee is unable
by himself to make decisions affecting his rights under this Agreement,
including but not limited to the exercise of the Option, the Option may be
exercised (but in no event later than the date of expiration of the term of this
Option as set forth in Section 12 below), by the authorized legal representative
or guardian of the Optionee, and if no such legal representative or guardian has
been appointed, then the Company may petition any Court of competent
jurisdiction to appoint such representative or guardian prior to Company being
required to take any action hereunder. In the event Optionee's employment with
the Company or a Related Company is terminated pursuant to Section 6.02 of that
certain Employment Agreement among Optionee, Velocity Express, Inc. and the
Company (the "Employment Agreement"), and the illness or injury causing such
termination is work-related, then upon such termination the provisions of
Section 4(i)(a) and Exhibit A hereof pertaining to vesting shall cease to apply
and this Option shall become immediately exercisable in full as to all Shares.
9. Death of Optionee. In the event of the death of Optionee during the
term of this Option, the provisions of Section 4(i)(a) and Exhibit A hereof
pertaining to vesting shall cease to apply and this Option shall become
immediately exercisable in full as to all Shares, and may be exercised, at any
time within one (1) year following the date of death (but in no event later than
the date of expiration of the term of this Option as set forth in Section 12
below), by Optionee's estate or by a person who acquired the right to exercise
the Option by bequest or inheritance.
10. Termination for Good Reason. In the event Optionee terminates his
employment with the Company or a Related Company for Good Reason, as defined in
Section 7.02 of the Employment Agreement, then upon such termination the
provisions of Section 4(i)(a) and Exhibit A hereof pertaining to vesting shall
cease to apply and this Option shall become immediately exercisable in full as
to all Shares.
11. Cancellation of Option for Misconduct. Notwithstanding anything to
the contrary contained herein, whether expressed or implied, and whether or not
the Optionee's employment or other relationship with the Company is terminated,
in the event the Company determines that Optionee has committed an act of
embezzlement, fraud, dishonesty, nonpayment of an obligation owed to the
Company, breach of fiduciary duty or deliberate disregard of the Company's rules
resulting in loss, damage or injury to the Company, or if the Optionee makes an
unauthorized
3
disclosure of any Company trade secret or confidential information, engages in
any conduct constituting unfair competition with respect to the Company,
breaches this Agreement, or induces any party to breach a contract with the
Company, then this Option shall be automatically cancelled and of no further
force or effect, subject to any full or partial waiver of such cancellation by
the Board of Directors.
12. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by him. The terms of
this Option shall be binding upon the Optionee and his or her personal
representatives, heirs, successors and assigns.
13. Term of Option. This Option may not be exercised after October 16,
2010, and may be exercised only in accordance with the terms of this Option.
14. Acceleration of Vesting Upon Change in Control. In the event of a
Change in Control, as defined in Section 11.03 of the Employment Agreement, the
provisions of Section 4(i)(a) and Exhibit A hereof pertaining to vesting shall
cease to apply and this Option shall become immediately vested and fully
exercisable with respect to all Shares.
15. Early Disposition of Stock. Optionee understands that if he
disposes of any Shares received under this Option within two (2) years after the
date of this Agreement or within one (1) year after such Shares were transferred
to him, he may be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount generally measured
by the difference between the price paid for the Shares and the lower of the
fair market value of the Shares at the date of the exercise or the fair market
value of the Shares at the date of disposition. The amount of such ordinary
income may be measured differently if Optionee is an officer, director or 10%
shareholder of the Company, or if the Shares were subject to a substantial risk
of forfeiture at the time they were transferred to Optionee. OPTIONEE HEREBY
AGREES TO NOTIFY THE COMPANY IN WRITING WITHIN 30 DAYS AFTER THE DATE OF ANY
SUCH DISPOSITION.
16. Withholding Taxes. As a condition to the issuance of Shares of
Common Stock of the Company pursuant to the exercise of this Option, the
Optionee authorizes the Company or a Related Company to withhold in accordance
with applicable law from any regular cash compensation payable to him any taxes
required to be withheld by the Company or a Related Company under federal or
state law as a result of his exercise of this Option. To the extent that
Optionee's current compensation is insufficient to satisfy the withholding tax
liability, the Company will require the Optionee to make a cash payment to cover
such liability as a condition to exercise of this Option, or may deduct any such
taxes from any payment of any kind otherwise due to the Optionee.
17. Subject to Lock Up. The Optionee understands that the Company at a
future date may file a registration or offering statement (the "Registration
Statement") with the Securities and Exchange Commission to facilitate an
underwritten public offering of its securities. The Optionee agrees, for the
benefit of the Company, that should such an underwritten public offering be made
and should the managing underwriter of such offering require, the Optionee will
not, without the prior written consent of the Company and such underwriter,
during the Lock Up Period as defined herein: sell, transfer or otherwise dispose
of, or agree to sell, transfer or
4
otherwise dispose of this Option or any of the Shares acquired or to be acquired
upon exercise of this Option during the Lock Up Period; or sell or grant, or
agree to sell or grant, options, rights or warrants with respect to any of the
Shares acquired or to be acquired upon exercise of this Option. The foregoing
does not prohibit gifts to donees or transfers by will or the laws of descent to
heirs or beneficiaries provided that such donees, heirs and beneficiaries shall
be bound by the restrictions set forth herein. The term "Lock Up Period" shall
mean the lesser of (x) 180 days or (y) the period during which Company officers
and directors are restricted by the managing underwriter from effecting any
sales or transfers of the Shares. The Lock Up Period shall commence on the
effective date of the Registration Statement.
18. Provisions for Registration. Despite anything in this Option to the
contrary, the Optionee shall have the following rights regarding registration of
Option Shares which have been acquired or may be hereafter acquired upon
exercise of this Option:
(i) Required Registration. If at any time the Company receives
the written request from a record holder of this Option or of Option Shares
acquired hereunder (a "Holder"), the Company shall prepare and file a
registration statement under the Securities Act covering the Option Shares which
are the subject of such requests and shall use its best efforts to cause such
registration statement to become effective provided, however, that all such
Option Shares to be so registered shall be converted into Common Stock prior to
sale pursuant to such registration statement. In addition, upon the receipt of
the aforementioned request, the Company shall promptly give written notice to
all other Holders that such registration is to be effected. The Company shall
include in such registration statement such Option Shares for which it has
received written requests to register by such other Holders within fifteen (15)
days after the Company's written notice to such other Holders. The Company shall
be obligated to prepare, file and cause to become effective only two (2)
registration statements pursuant to this Section 18(i). In the event that the
Holders of a majority of the Option Shares for which registration has been
requested pursuant to this Section determine for any reason not to proceed with
a registration at any time before the registration statement has been declared
effective by the Commission and such Holders thereafter request the Company to
withdraw such registration statement, or cancel their participation in same, and
if the Holders of such Option Shares agree to bear their own expenses incurred
in connection therewith and to reimburse the Company for the expenses incurred
by it attributable to such registration statement, then, and in such event, the
Holders of such Option Shares shall not be deemed to have exercised their right
to require the Company to register Option Shares pursuant to this Section 18(i).
(ii) Incidental Registration. Each time the Company shall
determine to proceed with the actual preparation and filing of a registration
statement under the Securities Act in connection with the proposed offer and
sale for money of any of its Common Stock by it or any of its security holders,
the Company will give written notice of its determination to all Holders
hereunder. Upon the written request of a Holder given within fifteen (15) days
after receipt of any such notice from the Company, the Company will, except as
herein provided, cause all such Option Shares, the record Holders of which have
so requested registration thereof, to be included in such registration
statement, all to the extent requisite to permit the sale or other disposition
by the prospective seller or sellers of the Option Shares to be so registered;
provided, however, that (a) all such Option Shares to be so registered shall be
converted into Common Stock prior to sale pursuant to such registration
statement; (b) nothing herein shall prevent the
5
Company from, at any time, abandoning or delaying any such registration
initiated by it; and (c) if the Company determines not to proceed with a
registration after the registration statement has been filed with the Commission
and the Company's decision not to proceed is primarily based upon the
anticipated public offering price of the securities to be sold by the Company,
the Company shall promptly complete the registration for the benefit of those
selling security holders who wish to proceed with a public offering of their
securities and who bear all expenses in excess of $25,000 incurred by the
Company as the result of such registration after the Company has decided not to
proceed. If any registration pursuant to this Section shall be underwritten in
whole or in part, the Company may require that the Option Shares requested for
inclusion pursuant to this Section be included in the underwriting on the same
terms and conditions as the securities otherwise being sold through the
underwriters. If in the good faith judgment of the managing underwriter of such
public offering the inclusion of all of the Option Shares originally covered by
a request for registration would reduce the number of shares to be offered by
the Company or interfere with the successful marketing of the shares of stock
offered by the Company, the number of Option Shares otherwise to be included in
the underwritten public offering may be reduced pro rata among the Holders
thereof requesting such registration to a number that the managing underwriter
believes will not adversely affect the sale of shares by the Company. Those
securities which are thus excluded from the underwritten public offering, and
any other Common Stock owned by such Holders, shall be withheld from the market
by the Holders thereof for a period, not to exceed one hundred eighty (180)
days, which the managing underwriter reasonably determines is necessary in order
to effect the underwritten public offering.
(iii) Registration Procedures. If and whenever the Company is
required by the provisions of Sections 18(i) or 18(ii) to effect the
registration of any Option Shares under the Securities Act, the Company will:
(a) prepare and file with the Commission a registration
statement with respect to such Option Shares, and use its best efforts to cause
such registration statement to become and remain effective for such period as
may be reasonably necessary to effect the sale of such Option Shares, not to
exceed three (3) months;
(b) prepare and file with the Commission such
amendments to such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration statement
effective for such period as may be reasonably necessary to effect the sale of
such Option Shares, not to exceed three (3) months;
(c) furnish to the Holders participating in such
registration and to the underwriters of the Option Shares being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such security Holders
and underwriters may reasonably request in order to facilitate the public
offering of such Option Shares;
(d) use its best efforts to register or qualify the
Option Shares covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating Holders
may reasonably request within ten (10) days following the original filing of
such registration statement, except that the Company shall not for any purpose
be
6
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified;
(e) notify the Holders participating in such
registration, promptly after it shall receive notice thereof, of the time when
such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
(f) notify such Holders promptly of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon
the request of any such Holders, any amendments or supplements to such
registration statement or prospectus which, in the opinion of counsel for such
Holders (and concurred in by counsel for the Company), is required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of the Option Shares by such Holder;
(h) prepare and promptly file with the Commission and
promptly notify such Holders of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
(i) advise such Holders, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order
by the Commission suspending the effectiveness of such registration statement
or the initiation or threatening of any proceeding for that purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued; and
(j) not file any amendment or supplement to such
registration statement or prospectus to which a majority in interest of such
Holders shall have reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements of the
Securities Act or the rules and regulations thereunder, after having been
furnished with a copy thereof at least five (5) business days prior to the
filing thereof, unless in the opinion of counsel for the Company the filing of
such amendment or supplement is reasonably necessary to protect the Company from
any liabilities under any applicable federal or state law and such filing will
not violate applicable law.
(iv) Expenses. With respect to any registration, requested
pursuant to Section 18(i) (except as otherwise provided in such section with
respect to registrations voluntarily terminated at the request of the requesting
Holders) and with respect to each inclusion of securities in a registration
statement pursuant to Section 18(ii) (except as otherwise provided in Section
18(ii) with respect to registrations terminated by the Company), the Company
shall bear the following fees, costs and expenses: all registration, filing and
NASD fees, printing expenses,
7
fees and disbursements of counsel and accountants for the Company, fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if the Company and/or selling security Holders are required to bear such fees
and disbursements), all internal Company expenses, the premiums and other costs
of policies of insurance against liability arising out of the public offering,
and all legal fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified. Fees and disbursements of counsel and
accountants for the selling Holders, underwriting discounts and commissions and
transfer taxes for selling Holders and any other expenses incurred by the
selling Holders not expressly included above shall be borne by the selling
Holders.
(v) Copies of Prospectus; Amendments of Prospectus. The
Company will furnish the Holders with a reasonable number of copies of any
prospectus or offering circular and one copy of the registration statement
included in such filings and will amend or supplement the same as required
during the nine (9) month period following the effective date of the
registration statement, provided, that the expenses of any amendment or
supplement made or filed more than three (3) months after the effective date of
the registration statement, at the request of the Holder, shall be borne by the
Holder.
(vi) Conditions of the Company's Obligations. It shall be a
condition of the Company's obligation to register the Option Shares hereunder
that the Holder agrees to cooperate with the Company in the preparation and
filing of any such registration statement, or in its efforts to establish that
the proposed sale is exempt under the Securities Act, as to any proposed
distribution. It shall also be a condition of the Company's obligations under
this Agreement that, in the case of the filing of any registration statement,
and to the extent permissible under the Securities Act, and controlling
precedent thereunder, the Company and the Holder provide cross-indemnification
agreements to each other in customary scope covering the accuracy and
completeness of the information furnished by each.
19. Notices. Any notice hereunder to the Company shall be addressed to
it at its principal executive offices, located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer or such
other person specified herein; and any notice hereunder to the Optionee shall be
addressed to him at the address set forth below; subject to the right of either
party to designate at any time hereunder in writing some other address.
20. Amendment, Modification or Waiver. No amendment, modification or
waiver of any condition, provision or term of this Agreement shall be valid or
of any effect unless made in writing, signed by the party or parties to be bound
or such party's duly authorized representative and specifying with particularity
and nature and extent of such amendment, modification or waiver. Any waiver by
any party of any default of another party shall not affect or impair any right
arising from any subsequent default. Nothing herein shall limit the remedies and
rights of the parties hereto under the pursuant to this Agreement.
21. Severability. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. Notwithstanding the
8
foregoing, in the event that any provision of this Agreement is unenforceable
because it is overbroad, then such provision shall be limited to the extent
necessary to make it enforceable under applicable law and enforced as so
limited. Optionee acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Agreement be given the construction which renders
its provisions valid and enforceable to the maximum extent (not exceeding its
express terms) possible under applicable law.
22. Entire Agreement; Survival of Provisions. This Agreement contains
the entire understanding of the parties in respect of the transactions
contemplated and supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
23. Counterparts. This Agreement may be executed in two counterparts
each of which shall constitute one and the same instrument.
DATE OF GRANT: October 16, 2000
----------------
UNITED SHIPPING & TECHNOLOGY, INC.
By:_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
OPTIONEE ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN
THE COMPANY'S 2000 STOCK OPTION PLAN, THE DEFINITIONS OF WHICH ARE INCORPORATED
HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO
CONTINUATION OF EMPLOYMENT BY THE COMPANY OR A RELATED COMPANY, NOR SHALL IT
INTERFERE IN ANY WAY WITH HIS RIGHT, OR THE RIGHT OF THE COMPANY OR A RELATED
COMPANY, TO TERMINATE HIS EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE, SUBJECT
TO THE EMPLOYMENT AGREEMENT, AS DEFINED IN SECTION 8 HEREOF.
9
Optionee hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
Optionee:
---------------------------
Dated: October 16, 2000
---------------- ------------------
Residence Address:
10
EXHIBIT A
EMPLOYEE OPTION AND VESTING DATA
Name of Employee:
----------------------
Number of Shares Subject to Option: 250,000
Date of Grant: October 16, 2000
OPTION VESTING SCHEDULE
NO. OF SHARES
DATE EXERCISABLE
October 16, 2001 83,333
October 16, 2002 83,333
October 16, 2003 83,334
Your Option will vest (that is, it will become exercisable) as to a
portion of the shares on each of the vesting dates shown above. Your rights to
exercise the un-vested portion of your Option will cease upon your death, except
as otherwise set forth in Sections 7 through 11 of this Stock Option Agreement.