INCENTIVE STOCK OPTION AGREEMENT FINGERHUT DIRECT MARKETING, INC. 2003 EQUITY INCENTIVE PLAN (NON-EXECUTIVE)
Exhibit 10.2(ii)
FINGERHUT DIRECT MARKETING, INC.
2003 EQUITY INCENTIVE PLAN
(NON-EXECUTIVE)
2003 EQUITY INCENTIVE PLAN
(NON-EXECUTIVE)
THIS AGREEMENT, made effective as of this ____ day of _____________, ______,(the “Issue Date”)
by and between Fingerhut Direct Marketing, Inc. , a Delaware corporation (the “Company”), and
______________________ (“Optionee”).
W I T N E S S E T H:
WHEREAS, Optionee on the date hereof is an employee or officer of the Company or one of its
Affiliates; and
WHEREAS, the Company wishes to grant an incentive stock option to Optionee to purchase shares
of the Company’s Common Stock pursuant to the Company’s 2003 Equity Incentive Plan (the “Plan”);
and
WHEREAS, the Administrator of the Plan has authorized the grant of an incentive stock option
to Optionee and has determined that, as of the effective date of this Agreement, the fair market
value of the Company’s Common Stock is $0.80 per share;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Optionee on the date set forth
above (the “Date of Grant”), the right and option (the “Option”) to purchase all or portions of an
aggregate of______________ ( ) shares of Common Stock at a per share price of $0.80 the terms and conditions set forth herein, and subject
to adjustment pursuant to Section 12 of the Plan. This Option is intended to be an incentive stock
option within the meaning of Section 422, or any successor provision, of the Internal Revenue Code
of 1986, as amended (the “Code”), and the regulations thereunder, to the extent permitted under
Code Section 422(d).
2. Duration and Exercisability.
a. General. The term during which this Option may be exercised shall terminate on
a date which is ten (10) years from the Issue Date (the “Expiration Date”),, 2013, except
as otherwise provided in Paragraphs 2(b) through 2(e) below. This Option shall become exercisable
according to the following schedule:
| Vesting Date | Percentage of Shares | |
| 12.5% | ||
| 12.5% | ||
| 12.5% | ||
| 12.5% | ||
Once the Option becomes exercisable to the extent of any of the aggregate number of shares
specified in Paragraph 1, Optionee may continue to exercise this Option with respect to such shares
under the terms and conditions of this Agreement until the termination of the Option as provided
herein. If Optionee does not purchase upon an exercise of this Option the full number of shares
which Optionee is then entitled to purchase, Optionee may purchase upon any subsequent exercise
prior to this Option’s termination such previously unpurchased shares in addition to those Optionee
is otherwise entitled to purchase.
b. Termination of Employment (other than Termination for Cause, Disability or
Death). If Optionee’s employment with the Company or any Affiliate is terminated for any
reason other than termination by the Company for “cause,” disability, or death, this Option shall
completely terminate on the earlier of (i) the close of business on the three-month anniversary
date of such termination of employment, and (ii) the expiration date of this Option stated in
Paragraph 2(a) above. In such period following the termination of Optionee’s employment, this
Option shall be exercisable only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of employment, but had not previously been exercised. To
the extent this Option was not exercisable upon such termination of employment, or if Optionee does
not exercise the Option within the time specified in this Paragraph 2(b), all rights of Optionee
under this Option shall be forfeited.
c. Termination of Employment for Cause. If Optionee’s employment with the Company
or any Affiliate is terminated for “cause,” the unexercised portion of this Option shall
immediately expire, and all rights of Optionee under this Option shall be forfeited. Solely for
purposes of this Paragraph 2(c), “cause” shall mean (i) Optionee being charged with a felony or
convicted of any criminal misdemeanor or more serious act; (ii) any intentional and/or willful act
of fraud or dishonesty by Optionee related to or connected with Optionee’s employment by the
Company or any of its Affiliates; (iii) the willful and/or continued failure, neglect or refusal by
Optionee to perform his or her employment duties with the Company or any of its Affiliates, (iv) a
material violation of the Company’s or an Affiliate’s policies or codes of conduct; or (v) the
willful and/or material breach by Optionee of any agreement between Optionee and the Company or any
of its Affiliates, including but not limited to an employment agreement or a noncompetition
agreement.
d. Disability. If Optionee’s employment terminates because of disability (as
defined in Code Section 22(e), or any successor provision), this Option shall terminate on the
earlier of (i) the close of business on the twelve-month anniversary date of such termination of
employment, and (ii) the expiration date of this Option stated in Paragraph 2(a) above. In such
period following the termination of Optionee’s employment, this Option shall be exercisable only to
the extent the Option was exercisable on the vesting date immediately preceding such termination of
employment, but had not previously been exercised. To the extent this Option was not exercisable
upon such termination of employment, or if Optionee does not exercise the Option within the time
specified in this Paragraph 2(d), all rights of Optionee under this Option shall be forfeited.
e. Death. In the event of Optionee’s death, this Option shall terminate on the
earliest of (i) the close of business on the twelve-month anniversary date of such termination of
employment, and (ii) the expiration date of this Option stated in Paragraph 2(a) above. In such
period following Optionee’s death, this Option shall be exercisable by the person or persons to
whom Optionee’s rights under this Option shall have passed by Optionee’s will or by the laws of
descent and distribution only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of employment, but had not previously been exercised. To
the extent this Option was not exercisable upon the date of Optionee’s death, or if such person or
persons do not exercise this Option within the time specified in this Paragraph 2(e), all rights
under this Option shall be forfeited.
3. Manner of Exercise.
a. General. The Option may be exercised only by Optionee (or other proper party
in the event of death or incapacity), subject to the conditions of the Plan and subject to such
other administrative rules as the Administrator may deem advisable, by delivering within the Option
Period written notice of exercise to the Company at its principal office. The notice shall state
the number of shares as to which the Option is being exercised and shall be accompanied by payment
in full of the Option price for all shares designated in the notice. The exercise of the Option
shall be deemed effective upon receipt of such notice by the Company and upon payment that complies
with the terms of the Plan and this Agreement. The Option may be exercised with respect to any
number or all of the shares as to which it can then be exercised and, if partially exercised, may
be so exercised as to the unexercised shares any number of times during the Option period as
provided herein.
b. Form of Payment. Subject to approval by the Administrator, payment of the
option price by Optionee shall be in the form of cash, personal check, certified check or mature,
previously-acquired shares of Common Stock of the Company, broker-assisted exercise, or any
combination thereof; provided, however, that Optionee shall not be permitted to pay the option
price in the form of a broker-assisted exercise or in the form of mature, previously-acquired
shares of Common Stock until after the effective date of an initial public offering of the
Company’s Common Stock; and provided, further, that Optionee shall not be permitted to pay the
option price in the form of a broker-assisted exercise or in the form of mature,
previously-acquired shares of Common Stock if payment in such form will cause the Company to
recognize a compensation expense under generally accepted accounting principles. Any stock
tendered as part of such payment shall be valued at its Fair Market Value as provided in the Plan.
For purposes of this Agreement, “mature, previously-acquired shares of Common Stock” and
“broker-assisted exercise” shall have the meaning set forth in Section 8 of the Plan. The
Administrator may, in its discretion, permit Optionee to tender such mature, previously-acquired
shares through the actual delivery of such shares or through attestation of ownership on such forms
as the Administrator may prescribe.
c. Stock Transfer Records. As soon as practicable after the effective exercise of
all or any part of the Option, Optionee shall be recorded on the stock transfer books of the
Company as the owner of the shares purchased, and the Company shall deliver to Optionee one or more
duly issued stock certificates evidencing such ownership. All requisite original issue or transfer
documentary stamp taxes shall be paid by the Company.
4. Miscellaneous.
a. Employment-at-Will; Rights as Shareholder. This Agreement shall not confer on
Optionee any right with respect to continuance of employment by the Company or any of its
Affiliates, nor will it interfere in any way with the right of the Company to terminate such
employment. Optionee’s employment relationship with the Company and its Affiliates shall be
employment-at-will, and nothing in this Agreement shall be construed as creating an employment
contract for any specified term between Optionee and the Company or any Affiliate. Optionee shall
have no rights as a shareholder with respect to shares subject to this Option until such shares
have been issued to Optionee upon exercise of this Option. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other property), distributions
or other rights for which the record date is prior to the date such shares are issued, except as
provided in Section 12 of the Plan.
b. Securities Law Compliance. The exercise of all or any parts of this Option
shall only be effective at such time as counsel to the Company shall have determined that the
issuance and delivery of Common Stock pursuant to such exercise will not violate any state or
federal securities or other laws. Optionee may be required by the Company, as a condition of the
effectiveness of any exercise of this Option, to agree in writing that all Common Stock to be
acquired pursuant to such exercise shall be held, until such time that such Common Stock is
registered and freely tradable under applicable state and federal securities laws, for Optionee’s
own account without a view to any further distribution thereof, that the certificates for such
shares shall bear an appropriate legend to that effect and that such shares will be not transferred
or disposed of except in compliance with applicable state and federal securities laws.
c. Mergers, Recapitalizations, Stock Splits, Etc. Pursuant and subject to Section
12 of the Plan, certain changes in the number or character of the Common Stock of the Company
(through merger, consolidation, exchange, reorganization, divestiture (including a spin-off),
liquidation, recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in Optionee’s rights with respect to any
unexercised portion of the Option (i.e., Optionee shall have such “anti-dilution” rights
under the Option with respect to such events, but shall not have “preemptive” rights).
d. Shares Reserved. The Company shall at all times during the option period
reserve and keep available such number of shares as will be sufficient to satisfy the requirements
of this Agreement.
e. Withholding Taxes on Disqualifying Disposition. In the event of a
disqualifying disposition of the shares acquired through the exercise of this Option, Optionee
hereby agrees to inform the Company of such disposition. Upon notice of a disqualifying
disposition, the Company may take such action as it deems appropriate to insure that, if necessary
to comply with all applicable federal or state income tax laws or regulations, all applicable
federal and state payroll, income or other taxes are withheld from any amounts payable by the
Company to Optionee. If the Company is unable to withhold such federal and state taxes, for
whatever reason, Optionee hereby agrees to pay to the Company an amount equal to the amount the
Company would otherwise be required to withhold under federal or state law. Optionee may, subject
to the approval and discretion of the Administrator or such administrative rules it may deem
advisable, elect to have all or a portion of such tax withholding obligations satisfied by
delivering shares of the Company’s Common Stock having a fair market value equal to such
obligations.
f. Nontransferability. During the lifetime of Optionee, the accrued Option shall
be exercisable only by Optionee or by the Optionee’s guardian or other legal representative, and
shall not be assignable or transferable by Optionee, in whole or in part, other than by will or by
the laws of descent and distribution.
g. 2003 Equity Incentive Plan. The Option evidenced by this Agreement is granted
pursuant to the Plan, a copy of which Plan has been made available to Optionee and is hereby
incorporated into this Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. The Plan governs this Option and, in the event of any
questions as to the construction of this Agreement or in the event of a conflict between the Plan
and this Agreement, the Plan shall govern, except as the Plan otherwise provides.
h. Lockup Period Limitation. Optionee agrees that in the event the Company
advises Optionee that it plans an underwritten public offering of its Common Stock in compliance
with the Securities Act of 1933, as amended, and that the underwriter(s) seek to impose
restrictions under which certain shareholders may not sell or contract to sell or grant any option
to buy or otherwise dispose of part or all of their stock purchase rights of the underlying Common
Stock, Optionee hereby agrees that for a period not to exceed 180 days from the prospectus,
Optionee will not sell or contract to sell or grant an option to buy or otherwise dispose of this
option or any of the underlying shares of Common Stock without the prior written consent of the
underwriter(s) or its representative(s).
i. Blue Sky Limitation. Notwithstanding anything in this Agreement to the
contrary, in the event the Company makes any public offering of its securities and determines, in
its sole discretion, that it is necessary to reduce the number of issued but unexercised stock
purchase rights so as to comply with any state securities or Blue Sky law limitations with respect
thereto, the Board of Directors of the Company shall (i) accelerate the exercisability of this
Option and the date on which this Option must be exercised, provided that the Company gives
Optionee 15 days’ prior written notice of such acceleration, and (ii) cancel any portion of this
Option or any other option granted to Optionee pursuant to the Plan which is not exercised prior to
or contemporaneously with such public offering. Notice shall be deemed given when delivered
personally or when deposited in the United States mail, first class postage prepaid and addressed
to Optionee at the address of Optionee on file with the Company.
j. Accounting Compliance. Optionee agrees that, if a merger, reorganization,
liquidation or other “transaction” as defined in Section 12 of the Plan occurs and Optionee is an
“affiliate” of the Company or any Affiliate (as defined in applicable legal and accounting
principles) at the time of such transaction, Optionee will comply with all requirements of Rule 145
of the Securities Act of 1933, as amended, and the requirements of such other legal or accounting
principles, and will execute any documents necessary to ensure such compliance.
k. Right of First Refusal.
(i) Notice to Company. Optionee shall not sell, assign, give, bequest or
otherwise transfer or dispose of any shares of Common Stock acquired through the exercise of this
Option without first giving written notice to the Company of Optionee’s intent to sell, transfer or
otherwise dispose of such Stock. Such notice shall specify the number of shares of Common Stock
Optionee intends to sell or transfer. The Company shall have the right to repurchase all or any
portion of such Stock at any time within thirty (30) days after the date it receives such notice of
sale at a price determined pursuant to Paragraph 4(k)(iii) below.
(ii) Exercise of Right.
A. The Company shall notify Optionee, in writing, of the Company’s exercise of its right
to repurchase all or a portion of the Stock specified in Optionee’s notice of sale or other
transfer. Such notice shall be signed by a member of the Board.
B. The Company’s election to exercise its right to repurchase all or a portion of the
Stock specified in Optionee’s notice shall be approved by a majority vote of the Board, or by
written resolution of all members of the Board entitled to participate in such action, provided
that the Board may authorize a standing order electing to repurchase all shares tendered during a
stipulated time period. In no event shall Optionee participate in the Company’s election to
exercise its right to repurchase Optionee’s Stock in an individually authorized transaction if he
is a member of the Board.
C. As promptly as practicable after the Company’s exercise of its right to repurchase all
or a portion of the Stock specified in the Optionee’s notice, the Company shall deliver to Optionee
a lump-sum cash payment equal to the purchase price determined under Paragraph 4(k)(iii) below, and
Optionee shall deliver the stock certificates representing such Stock, properly endorsed for
transfer in blank, to the Company for cancellation.
D. If the Board notifies Optionee, in writing, that the Company will not exercise its
right to repurchase all or any portion of the Stock specified in Optionee’s notice, or if the Board
fails to exercise the Company’s right to repurchase such Stock during the thirty-day period
described above, the Company’s right to repurchase such Stock will lapse and Optionee shall have
the right to sell or transfer the Stock specified in Optionee’s notice for a period of sixty (60)
days thereafter, subject to any restrictions imposed by applicable
securities laws. If Optionee does not sell or transfer such Stock within this sixty-day period,
all of the provisions of this Paragraph 4(k) shall again apply.
E. If the Board notifies Optionee, in writing, that the Company will not exercise its
right to repurchase all or any portion of the Stock specified in Optionee’s notice, or if the Board
fails to exercise the Company’s right to repurchase such Stock during the thirty-day period
described above, and all or any portion of such Stock is subsequently sold or otherwise
transferred, the restrictions contained in this Paragraph 4(k) shall not apply to the Stock so
transferred.
(iii) Purchase Price for Stock. If the Company exercises its right to repurchase
all or any portion of the Stock specified in Optionee’s notice, the Company shall pay Optionee an
amount equal to the greater of: (A) the price offered in the proposed transaction giving rise to
such right of repurchase, and (B) the Fair Market Value of the Company’s Common Stock, as defined
in the Plan, as of the date the Company received Optionee’s notice of sale or other transfer.
(iv) Investor Required Agreements. If in connection with the consummation of an
equity financing by the Company other than a public offering by the Company, the equity investor or
investors require as a condition to their making an investment in the Company that one or more
groups of optionees, with respect to shares of stock that may be owned by Optionee, enter into
buy-sell, voting, co-sale, right of first refusal or other agreements with the Company and/or such
investor or investors, and if the Optionee is a member of such group or groups of optionees, upon
written request of the Company, the Optionee agrees to enter into such agreement or agreements,
provided, however, that, without Optionee’s consent, which consent shall not be unreasonably
withheld, any rights of first refusal or other call options on Optionee’s shares shall not be a
price materially lower than the price that would apply under Paragraph 4(k)(iii) above.
(v) Initial Public Offering. The provisions of this Paragraph 4(k) shall no
longer apply on the effective date of an initial public offering of the Company’s Common Stock.
l. Stock Legend. The Administrator may require that the certificates for any
shares of Common Stock purchased by Optionee (or, in the case of death, Optionee’s successors)
shall bear an appropriate legend to reflect the restrictions of Paragraph 4(b) and Paragraphs 4(h)
through 4(k) of this Agreement; provided, however, that failure to so endorse any of such
certificates shall not render invalid or inapplicable Paragraph 4(k).
m. Scope of Agreement. This Agreement shall bind and inure to the benefit of the
Company, its Affiliates and its successors and assigns and Optionee and any successor or successors
of Optionee permitted by Paragraph 2 or Paragraph 4(f) above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.
| FINGERHUT DIRECT MARKETING, INC. |
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| By: | ||||
| Its: | ||||
| Optionee | ||||
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