Exhibit 10.72
No.________
HOSTPRO, INC.
2000 EQUITY INCENTIVE PLAN
NOTICE OF GRANT FORM
This Notice of Grant (the "Agreement") is made and entered into as of the
date of grant set forth below (the "Date of Grant") by and between HostPro,
Inc., a Delaware corporation (the "Company"), and the participant named below
(the "Participant"). Capitalized terms not defined herein shall have the meaning
ascribed to them in the Company's 2000 Equity Incentive Plan.
Participant: ___________________________________
Address: ___________________________________
___________________________________
Total Option Shares: ___________________________________
Exercise Price Per Share: ___________________________________
Date of Grant: ___________________________________
First Vesting Date: ___________________________________
Expiration Date: ___________________________________
(unless earlier terminated under Section 5.6 of the
Plan)
Type of Stock Option
(Check one): [] Incentive Stock Option,
to the maximum extent permitted by law
[] Nonqualified Stock Option
1. Grant of Option. The Company hereby grants to Participant an option
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(this "Option") to purchase the total number of shares of Common Stock, .01 par
value, of the Company set forth above as Total Option Shares (the "Shares") at
the Exercise Price Per Share set forth above (the "Exercise Price"), subject to
all of the terms and conditions of this Agreement and the Plan. If designated
as an Incentive Stock Option above, the Option is intended to qualify as an
"incentive stock option" (the "ISO") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. Exercise Period.
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2.1 Exercise Period of Option. Provided Participant continues to
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provide services to the Company or any Subsidiary or Parent of the Company or to
Micron Technology, the Option will become vested and exercisable as to portions
of the Shares as follows: (i) this
Plan I MEI Optionee NOG
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Option shall not vest nor be exercisable with respect to any of the Shares until
the First Vesting Date set forth on the first page of this Agreement (the "First
Vesting Date") (ii) on the First Vesting Date the Option will become vested and
exercisable as to twenty-five percent (25%) of the Shares; and (iii) thereafter
at the end of each full succeeding month the Option will become vested and
exercisable as to 2.08333% of the Shares until the Shares are vested with
respect to one hundred percent (100%) of the Shares. Notwithstanding the
foregoing, upon the issuance to the public of shares of Common Stock pursuant to
a Form S-1 Registration Statement under the Securities Act of 1933, as amended
(the "IPO"), the Option will become vested and exercisable as to fifty percent
(50%) of the Shares and the remaining fifty percent (50%) of the Shares shall
become vested and exercisable on the first anniversary of such IPO. If
application of the vesting percentage causes a fractional share, such share
shall be rounded down to the nearest whole share for each month except for the
last month in such vesting period, at the end of which last month this Option
shall become exercisable for the full remainder of the Shares. Subject to
earlier termination of the Option as provided herein, this Option may not be
exercised prior to the earlier of (i) an IPO or (ii) five (5) years from the
date such Option is granted; provided that any Option granted to a resident of
California who is not an officer or director of the Company shall become
exercisable at the rate of no less than twenty percent (20%) per year over five
(5) years from the date such Option is granted.
2.2 Vesting of Options. Shares that are vested pursuant to the
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schedule set forth in Section 2.1 are "Vested Shares." Shares that are not
vested pursuant to the schedule set forth in Section 2.1 are "Unvested Shares."
2.3 Expiration. The Option shall expire on the Expiration Date set
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forth above or earlier as provided in Section 3 below or pursuant to Section 5.6
of the Plan.
3. Termination.
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3.1 Termination for Any Reason Except Death, Disability or Cause. If
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Participant is Terminated for any reason other than death, Disability or for
Cause, then the Participant may exercise such Participant's Options only to the
extent that such Options are exercisable upon the Termination Date or as
otherwise determined by the Committee. Such Options must be exercised by the
Participant, if at all, as to all or some of the Vested Shares calculated as of
the Termination Date or such other date determined by the Committee, within
thirty (30) days after the Termination Date but in any event, no later than the
expiration date of the Options.
3.2 Termination Because of Death or Disability. If Participant is
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Terminated because of Participant's death or Disability (or the Participant dies
within thirty (30) days after a Termination other than for Cause), then
Participant's Options may be exercised only to the extent that such Options are
exercisable by Participant on the Termination Date or as otherwise determined by
the Committee. Such options must be exercised by Participant (or Participant's
legal representative or authorized assignee), if at all, as to all or some of
the Vested Shares calculated as of the Termination Date or such other date
determined by the Committee, within
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twelve (12) months after the Termination Date but in any event no later than the
expiration date of the Options.
3.3 Termination for Cause. If Participant is terminated for Cause,
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then Participant's Options shall expire on such Participant's Termination Date,
or at such later time and on such conditions as are determined by the Committee.
3.4 Extension of Time to Exercise Following Spinoff or Corporate
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Transaction or Change of Control. Notwithstanding anything in the Plan or in
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this Section 3 to the contrary, if (i) a Participant is employed by Micron
Electronics or Micron Technology immediately preceding a Spinoff or (ii) a
Participant's Options accelerate pursuant to Section 5 hereof, then such Options
may be exercised within one year following the later of (A) such Spinoff or
acceleration or (B) the registration under the Securities Act of the Shares or
any substituted stock underlying such Options.
3.5 No Obligation to Employ. Nothing in the Plan or this Agreement
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shall confer on Participant any right to continue in the employ of, or other
relationship with, the Company or any Parent or Subsidiary of the Company, or
limit in any way the right of the Company or any Parent or Subsidiary of the
Company to terminate Participant's employment or other relationship at any time,
with or without Cause.
3.6 Confidentiality. Participant agrees that information regarding
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this Option, including, but not limited to, the issuance of the Option to
Participant and the number of Shares subject to the Option, is Company
confidential information, and is subject to Participant's obligations to
maintain such information in confidence. Participant agrees not to disclose such
information to any third party, except to his or her immediate family members,
accountants, financial advisors and attorneys (each of whom shall be informed of
the confidential nature of the information and agree not to disclose the
information to any third party), or required by law. Participant agrees that
the Committee may, at its discretion, immediately terminate all or part of this
Option if Participant violates this Section 3.6.
4. Manner of Exercise.
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4.1 Stock Option Exercise Agreement. To exercise this Option,
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Participant (or in the case of exercise after Participant's death or incapacity,
Participant's executor, administrator, heir or legatee, as the case may be) must
deliver to the Company an executed stock option exercise agreement in such form
as may be approved by the Committee from time to time (the "Exercise
Agreement"), which shall set forth, inter alia, (i) Participant's election to
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exercise the Option, (ii) the number of Shares being purchased, (iii) any
restrictions imposed on the Shares and (iv) any representations, warranties and
agreements regarding Participant's investment intent and access to information
as may be required by the Company to comply with applicable securities laws. If
someone other than Participant exercises the Option, then such person must
submit documentation reasonably acceptable to the Company verifying that such
person has the legal right to exercise the Option and such person shall be
subject to all of the restrictions contained herein as if such person were the
Participant.
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4.2 Limitations on Exercise. The Option may not be exercised unless
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such exercise is in compliance with all applicable federal and state securities
laws, as they are in effect on the date of exercise. The Option may not be
exercised as to fewer than one hundred (100) Shares unless it is exercised as to
all Shares as to which the Option is then exercisable.
4.3 Payment. The Exercise Agreement shall be accompanied by full
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payment of the Exercise Price for the shares being purchased in cash (by check),
or where permitted by law:
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of shares of the Company's Common Stock that (i)
either (A) have been owned by Participant for more than six (6)
months and have been paid for within the meaning of SEC Rule 144
(and, if such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to
such shares); or (B) were obtained by Participant in the open
public market; and (ii) are clear of all liens, claims,
encumbrances or security interests;
(c) by waiver of compensation due or accrued to Participant for
services rendered;
(d) provided that a public market for the Company's stock exists: (i)
through a "same day sale" commitment from Participant and a
broker-dealer that is a member of the National Association of
Securities Dealers (an "NASD Dealer") whereby Participant
irrevocably elects to exercise the Option and to sell a portion
of the Shares so purchased sufficient to pay for the total
Exercise Price and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the total Exercise Price
directly to the Company, or (ii) through a "margin" commitment
from Participant and an NASD Dealer whereby Participant
irrevocably elects to exercise the Option and to pledge the
Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the
total Exercise Price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the total Exercise
Price directly to the Company; or
(e) any other form of consideration approved by the Committee; or
(f) by any combination of the foregoing.
4.4 Tax Withholding. Prior to the issuance of the Shares upon
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exercise of the Option, Participant must pay or provide for any applicable
federal, state and local withholding obligations of the Company. If the
Committee permits, Participant may provide for payment of withholding taxes upon
exercise of the Option by requesting that the Company retain the
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minimum number of Shares with a Fair Market Value equal to the minimum amount of
taxes required to be withheld; but in no event will the Company withhold Shares
if such withholding would result in adverse accounting consequences to the
Company. In such case, the Company shall issue the net number of Shares to the
Participant by deducting the Shares retained from the Shares issuable upon
exercise.
4.5 Issuance of Shares. Provided that the Exercise Agreement and
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payment are in form and substance satisfactory to counsel for the Company, the
Company shall issue the Shares registered in the name of Participant,
Participant's authorized assignee, or Participant's legal representative, and
shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.
5. CORPORATE TRANSACTIONS.
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(a) Assumption or Replacement of Options by Successor. In the event
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of (i) a dissolution or liquidation of the Company, (ii) a merger or
consolidation in which the Company is not the surviving corporation (other than
a merger or consolidation with a wholly-owned subsidiary, a reincorporation of
the Company in a different jurisdiction, or other transaction in which there is
no substantial change in the stockholders of the Company or their relative stock
holdings and the Options granted under the Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), (iii) a merger in which the Company is the surviving corporation
but after which the stockholders of the Company immediately prior to such merger
(other than any stockholder that merges, or which owns or controls another
corporation that merges, with the Company in such merger) cease to own their
shares or other equity interest in the Company, or (iv) the sale of
substantially all of the assets of the Company (each, a "Corporate
Transaction"), any or all outstanding Options may be assumed, converted or
replaced by the successor or acquiring corporation (if any), which assumption,
conversion or replacement will be binding on all Participants. In the
alternative, the successor or acquiring corporation may substitute equivalent
Options or provide substantially similar consideration to Participants as was
provided to shareholders (after taking into account the existing provisions of
the Options). The successor or acquiring corporation may also issue, in place
of outstanding unvested Shares of the Company held by the Participants,
substantially similar shares or other property subject to repurchase
restrictions no less favorable to the Participant. Notwithstanding anything in
this Section 5(a) to the contrary, in the event that (i) a Participant is
Terminated by the Company other than for Cause within one (1) year following the
date of (A) a Corporate Transaction or (B) a Change in Control of Micron
Electronics prior to a Spinoff, (ii) a Participant is employed by Micron
Electronics or Micron Technology immediately prior to a Spinoff or at the time
that the Company ceases to be a Subsidiary, (iii) a Participant is employed by
Micron Electronics or Micron Technology on the date of a Corporate Transaction
and the Corporate Transaction occurs prior to a Spinoff or (iv) a Participant is
Terminated by Micron Electronics other than for Cause within one (1) year
following a Change in Control of Micron Electronics, then the vesting and
exercisability of the unvested or unexercisable portion of all outstanding
Options held by such Participant will accelerate as to 100% of the unvested
Shares held by such Participant upon the occurrence of such event. In addition,
in the case of a
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Participant employed by Micron Electronics or Micron Technology, (x) the vesting
and exercisability of 50% of the unvested or unexercisable portion of any
outstanding Options held by such Participant will accelerate on the liquidation
of the Company into or the merger or consolidation of the Company with Micron
Electronics following a sale or disposition of substantially all of the personal
computer assets of Micron Electronics and the remaining 50% of such unvested or
unexercisable portion of any outstanding Option will become fully vested and
exercisable one year thereafter and (y) the vesting and exercisability of all
unvested and unexercisable Options held by such Participant shall become fully
vested and exercisable on the sale or disposition of substantially all of the
personal computer assets of Micron Electronics followed within one (1) year by
the Participant's Termination by Micron Electronics other than for Cause.
In the event such successor or acquiring corporation (if any) refuses
to assume or substitute Options, as provided above, pursuant to a Corporate
Transaction described in this Subsection 5(a), then notwithstanding any other
provision in the Plan or Notice of Grant to the contrary, the vesting of such
Options will accelerate and the Options will become exercisable in full prior to
the consummation of such event at such times and on such conditions as the
Committee determines, and if such Options are not exercised prior to the
consummation of the Corporate Transaction, they shall terminate in accordance
with the provisions of the Plan. Notwithstanding anything in the Plan or the
Notice of ▇▇▇▇▇ to the contrary, the Committee may, in its sole discretion,
provide that the vesting of any or all Options granted pursuant to the Plan will
accelerate upon a Corporate Transaction described in this Section 5. If the
Committee exercises such discretion with respect to Options, such Options will
become exercisable in full prior to the consummation of such event at such time
and on such conditions as the Committee determines, and if such Options are not
exercised prior to the consummation of the Corporate Transaction, they shall
terminate at such time as determined by the Committee.
(b) Other Treatment of Options. Subject to any greater rights
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granted to Participants under the foregoing provisions of this Section 5, in the
event of the occurrence of any transaction described in Section 5(a) hereof, any
outstanding Options will be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation or sale of assets.
(c) Assumption of Options by the Company. The Company, from time to
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time, also may substitute or assume outstanding options granted by another
company, whether in connection with an acquisition of such other company or
otherwise, by either (i) granting an option under this Plan in substitution of
such other company's option or (ii) assuming such option as if it had been
granted under this Plan if the terms of such assumed option could be applied to
an option granted under this Plan. Such substitution or assumption will be
permissible if the holder of the substituted or assumed option would have been
eligible to be granted an option under this Plan if the other company had
applied the rules of this Plan to such grant. In the event the Company assumes
an option granted by another company, the terms and conditions of such option
will remain unchanged (except that the exercise price and the number and nature
of shares issuable upon exercise of any such option will be adjusted
appropriately pursuant to
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Section 424(a) of the Code). In the event the Company elects to grant a new
option rather than assuming an existing option, such new option may be granted
with a similarly adjusted Exercise Price.
6. Notice of Disqualifying Disposition of ISO Shares. If the Option is an
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ISO, and if Participant sells or otherwise disposes of any of the Shares
acquired pursuant to the ISO on or before the later of (i) the date two (2)
years after the Date of Grant, and (ii) the date one (1) year after transfer of
such Shares to Participant upon exercise of the Option, Participant shall
immediately notify the Company in writing of such disposition. Participant
agrees that Participant may be subject to income tax withholding by the Company
on the compensation income recognized by Participant from the early disposition
by payment in cash or out of the current wages or other compensation payable to
Participant.
7. Compliance with Laws and Regulations. The exercise of the Option and
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the issuance and transfer of Shares shall be subject to compliance by the
Company and Participant with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on
which the Company's Common Stock may be listed at the time of such issuance or
transfer. Participant understands that the Company is under no obligation to
register or qualify the Shares with the SEC, any state securities commission or
any stock exchange to effect such compliance.
8. Nontransferability of Option.
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8.1 Nontransferability of Option. The Option may not be transferred
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in any manner other than by will or by the laws of descent and distribution or
as determined by the Committee. The terms of the Option shall be binding upon
the executors, administrators, successors and assigns of Participant.
8.2 All Options other than NQSO's. All Options other than NQSO's
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shall be exercisable: (i) during the Participant's lifetime, only by (A) the
Participant, or (B) the Participant's guardian or legal representative; and (ii)
after Participant's death, by the legal representative of the Participant's
heirs or legatees.
8.3 NQSOs. Unless otherwise restricted by the Committee, an NQSO
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shall be exercisable: (i) during the Participant's lifetime only by (A) the
Participant, (B) the Participant's guardian or legal representative, (C) a
Family Member of the Participant who has acquired the NQSO by "permitted
transfer;" and (ii) after Participant's death, by the legal representative of
the Participant's heirs or legatees. "Permitted transfer" means, as authorized
by this Plan and the Committee in an NQSO, any transfer effected by the
Participant during the Participant's lifetime of an interest in such NQSO but
only such transfers which are by gift or domestic relations order. A permitted
transfer does not include any transfer for value and neither of the following
are transfers for value: (a) a transfer of under a domestic relations order in
settlement of marital property rights or (b) a transfer to an entity in which
more than fifty percent of the voting interests are owned by Family Members or
the Participant in exchange for an interest in that entity.
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9. Company's Right of First Refusal. Before any Vested Shares held by
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Participant or any transferee of such Vested Shares may be sold or otherwise
transferred (including without limitation a transfer by gift or operation of
law), the Company and/or its assignee(s) shall have an assignable right of first
refusal to purchase the Vested Shares to be sold or transferred on the terms and
conditions set forth in the Exercise Agreement (the "Right of First Refusal").
The Company's Right of First Refusal will terminate when the Company's
securities become publicly traded.
10. Tax Consequences. Set forth below is a brief summary as of the
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Effective Date of the Plan of some of the federal and California tax
consequences of exercise of the Option and disposition of the Shares. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT
TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE
OPTION OR DISPOSING OF THE SHARES.
10.1 Exercise of ISO. If the Option qualifies as an ISO, there will
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be no regular federal or California income tax liability upon the exercise of
the Option, although the excess, if any, of the Fair Market Value of the Shares
on the date of exercise over the Exercise Price will be treated as a tax
preference item for federal alternative minimum tax purposes and may subject the
Participant to the alternative minimum tax in the year of exercise.
10.2 Exercise of Nonqualified Stock Option. If the Option does not
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qualify as an ISO, there may be a regular federal and California income tax
liability upon the exercise of the Option. Participant will be treated as having
received compensation income (taxable at ordinary income tax rates) equal to the
excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price. If Participant is a current or former employee of the
Company, the Company may be required to withhold from Participant's compensation
or collect from Participant and pay to the applicable taxing authorities an
amount equal to a percentage of this compensation income at the time of
exercise.
10.3 Disposition of Shares. The following tax consequences may apply
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upon disposition of the Shares.
(a) Incentive Stock Options. If the Shares are held for more
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than twelve (12) months after the date of purchase of the Shares pursuant to the
exercise of an ISO and are disposed of more than two (2) years after the Date of
Grant, any gain realized on disposition of the Shares will be treated as long
term capital gain for federal and California income tax purposes. If Shares
purchased under an ISO are disposed of within the applicable one (1) year or two
(2) year period, any gain realized on such disposition will be treated as
compensation income (taxable at ordinary income rates) to the extent of the
excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price.
(b) Nonqualified Stock Options. If the Shares are held for more
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than twelve (12) months after the date of purchase of the Shares pursuant to the
exercise of an NQSO, any gain realized on disposition of the Shares will be
treated as long term capital gain.
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(c) Withholding. The Company may be required to withhold from
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the Participant's compensation or collect from the Participant and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income.
11. Privileges of Stock Ownership. Participant shall not have any of the
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rights of a stockholder with respect to any Shares until the Shares are issued
to Participant.
12. Interpretation. Any dispute regarding the interpretation of this
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Agreement shall be submitted by Participant or the Company to the Committee for
review. The resolution of such a dispute by the Committee shall be final and
binding on the Company and Participant.
13. Entire Agreement. The Plan is incorporated herein by reference. This
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Agreement and the Plan constitute the entire agreement of the parties and
supersede all prior undertakings and agreements with respect to the subject
matter hereof.
14. Notices. Any notice required to be given or delivered to the Company
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under the terms of this Agreement shall be in writing and addressed to the
Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Participant shall be in writing and
addressed to Participant at the address indicated above or to such other address
as such party may designate in writing from time to time to the Company. All
notices shall be deemed to have been given or delivered upon: (i) personal
delivery; (ii) three (3) days after deposit in the United States mail by
certified or registered mail (return receipt requested); (iii) one (1) business
day after deposit with any return receipt express courier (prepaid); or (iv) one
(1) business day after transmission by facsimile, rapifax or telecopier.
15. Successors and Assigns. The Company may assign any of its rights
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under this Agreement including its rights to purchase Shares under the Right of
First Refusal. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Company. Subject to the restrictions on
transfer set forth herein, this Agreement shall be binding upon Participant and
Participant's heirs, executors, administrators, legal representatives,
successors and assigns.
16. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware as such laws are applied to
agreements between Delaware residents entered into and to be performed entirely
within Delaware. If any provision of this Agreement is determined by a court of
law to be illegal or unenforceable, then such provision will be enforced to the
maximum extent possible and the other provisions will remain fully effective and
enforceable.
17. Acceptance. Participant hereby acknowledges receipt of a copy of the
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Plan and this Agreement. Participant has read and understands the terms and
provisions thereof, and accepts the Option subject to all the terms and
conditions of the Plan and this Agreement. Participant acknowledges that there
may be adverse tax consequences upon exercise of the Option or disposition of
the Shares and that Participant should consult a tax adviser prior to such
exercise or disposition.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in
triplicate by its duly authorized representative and Participant has executed
this Agreement in triplicate, effective as of the Date of Grant.
HOSTPRO, INC. PARTICIPANT
By:__________________________ ______________________________
(Signature)
_____________________________ ______________________________
(Please print name) (Please print name)
_____________________________
(Please print title)
[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
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EXHIBIT A
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FORM OF STOCK OPTION EXERCISE AGREEMENT
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