Exhibit 10.21
EXECUTION VERSION
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
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2006 STOCK INCENTIVE PLAN
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THIS AGREEMENT, dated as of May 16, 2007 (this "Agreement"), between
▇▇▇▇▇▇ ▇▇▇▇▇▇, Ltd. (the "Company") and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Participant").
Preliminary Statement
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The Compensation Committee of the Board of Directors of the Company
(the "Committee") has authorized this grant of a non-qualified stock option (the
"Option") on May 16, 2007 (the "Grant Date") to purchase the number of shares of
the Company's common stock, par value $0.0001 per share (the "Common Stock"),
set forth below to the Participant, as an Eligible Employee of the Company or an
Affiliate of the Company. Unless otherwise indicated, any capitalized term used
but not defined herein shall have the meaning ascribed to such term in the
▇▇▇▇▇▇ ▇▇▇▇▇▇, Ltd. 2006 Stock Incentive Plan, as amended (as the same may be
further amended from time to time, the "Plan"). A copy of the Plan as in effect
on the date hereof has been delivered to the Participant. By signing and
returning this Agreement, the Participant acknowledges having received and read
a copy of the Plan as in effect on the date hereof and agrees to comply with the
Plan, this Agreement and all applicable laws and regulations.
Accordingly, the parties hereto agree as follows:
1. Tax Matters. No part of the Option granted hereby is intended
to qualify as an "incentive stock option" under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Grant of Option. Subject in all respects to the Plan and the
terms and conditions set forth herein and therein, the Participant is hereby
granted an Option to purchase from the Company 150,000 shares of Common Stock
(the "Option Shares"), at a price per share of $50.00 (the "Option Price"),
which is not less than Fair Market Value on the Grant Date.
3. Vesting and Exercise.
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(a) Except as set forth below, the Option shall vest and become
exercisable in installments as provided below, which shall be cumulative. To the
extent that the Option has become vested and exercisable as provided below, the
Option thereafter may be exercised by the Participant, in whole or in part, at
any time or from time to time prior to the expiration or earlier termination of
the Option as provided herein and in accordance with Section 6.3(d) of the Plan,
including, without limitation, the filing of such written form of exercise
notice, if any, as may be required by the Committee or the Company and the
payment in full of the Option Price multiplied by the number of Option Shares
underlying the portion of the Option exercised. Upon expiration of the Option,
the Option shall be canceled and no longer exercisable. The following table
indicates each date upon which the Participant shall be vested and entitled to
exercise the Option with respect to the number of the Option Shares indicated
beside such date, provided that the Participant has not had a Termination of
Employment any time prior to such date (each of the dates set forth below being
herein called a "Vesting Date"):
Number
of Option
Vesting Date Shares Vested
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First Anniversary of Grant Date 50,000 (1/3 of
the Option Shares)
Second Anniversary of Grant Date 100,000 (2/3 of
the Option Shares)
Third Anniversary of Grant Date 150,000 (100% of
the Option Shares)
(b) There shall be no proportionate or partial vesting in the
periods prior to each Vesting Date and all vesting shall occur only on the
appropriate Vesting Date, provided that the Participant has not had a
Termination of Employment at any time prior to such Vesting Date.
(c) The Option will become fully vested on a Change in Control.
4. Option Term. The term of the Option shall be five (5) years
after the Grant Date and the Option shall expire at 5:00 p.m. (New York City
time) on the fifth anniversary of the Grant Date, subject to earlier termination
in the event of the Participant's Termination of Employment as specified in
Section 5.
5. Termination. Subject to Section 4 and the terms of the Plan,
the Option, to the extent vested at the time of the Participant's Termination of
Employment, shall remain exercisable as provided in Section 12.1(a) of the Plan.
Any portion of the Option that is not vested as of the date of the Participant's
Termination of Employment for any reason shall terminate and expire as of the
date of such Termination of Employment. In addition to the foregoing, if the
Participant breaches any provision of Section 6 of the Employment Agreement by
and between the Participant and the Company dated as of May 16, 2007, the
Participant shall forfeit the Option (whether vested or unvested) effective on
the date of such breach and to the extent that the Participant exercised the
Option (or any portion thereof), the Participant shall pay the Company (and the
Company shall have the right to recover), an amount equal to the entire gain
realized by the Participant upon the exercise of the Option (or any portion
thereof).
6. Restriction on Transfer of Option. No part of the Option shall
be subject to Transfer other than by will or by the laws of descent and
distribution. During the lifetime of the Participant, the Option may be
exercised only by the Participant or the Participant's guardian or legal
representative. The Option shall not be subject to levy by reason of any
execution, attachment or similar process. Upon any attempt to Transfer the
Option or in the event of any levy upon the Option by reason of any execution,
attachment or similar process contrary to the provisions hereof, the Option
shall immediately and automatically become null and void.
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7. Rights as a Stockholder. The Participant shall have no rights
as a stockholder with respect to any Option Shares unless and until the
Participant has become the holder of record of the Option Shares. No adjustments
shall be made to the Option, the Option Shares or the Option Price for dividends
in cash or other property, distributions or other rights in respect of any
Option Shares, except as otherwise may be specifically provided for in the Plan.
No shares of Common Stock shall be issued unless and until payment therefor has
been made or provided.
8. Provisions of Plan Control. This Agreement is subject to all
the terms, conditions and provisions of the Plan, including, without limitation,
the amendment provisions thereof, and to such rules, regulations and
interpretations relating to the Plan as may be adopted by the Committee and as
may be in effect from time to time. The Plan is incorporated herein by
reference. If and to the extent that this Agreement conflicts or is inconsistent
with the terms, conditions and provisions of the Plan, the Plan shall control,
and this Agreement shall be deemed to be modified accordingly. This Agreement
contains the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersedes any prior agreements and understandings
(whether written or oral) between the Company and the Participant with respect
to the subject matter hereof.
9. Notices. Any notice or communication given hereunder (each a
"Notice") shall be in writing and shall be sent by personal delivery, by courier
or by United States mail (registered or certified mail, postage prepaid and
return receipt requested), to the appropriate party at the address set forth
below:
If to the Company, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Ltd.
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Attention: Chief Executive Officer.
If to the Participant, to the address for the Participant on file with
the Company
; or such other address or to the attention of such other person as a party
shall have specified by prior Notice to the other party. Each Notice will be
deemed given and effective upon actual receipt (or refusal of receipt).
10. No Obligation to Continue Employment. This Agreement is not an
agreement of employment. This Agreement does not guarantee that the Company or
its Affiliates will employ, retain or continue to, employ or retain the
Participant during the entire, or any portion of the, term of this Agreement,
including but not limited to any period during which any Option is outstanding,
nor does it modify in any respect the Company's or its Affiliates' right to
terminate or modify the Participant's employment or compensation.
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11. Miscellaneous.
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(a) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors and assigns.
(b) This Agreement shall be governed and construed in accordance
with the laws of Delaware (regardless of the law that might otherwise govern
under applicable Delaware principles of conflict of laws).
(c) This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one contract.
(d) The failure of any party hereto at any time to require
performance by another party of any provision of this Agreement shall not affect
the right of such party to require performance of that provision, and any waiver
by any party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
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By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
PARTICIPANT
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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