Exhibit 10.4
Viasat, INC.
1996 EQUITY PARTICIPATION PLAN
STOCK OPTION GRANT NOTICE AND STOCK OPTION AGREEMENT
(INDEPENDENT DIRECTOR VERSION)
ViaSat, Inc. (the “Company”), pursuant to the 1996 Equity Participation Plan of ViaSat, Inc. (as amended from time to time, the “Plan”), hereby grants to the holder listed below (“Optionee”), an option to purchase the number of shares of the Company’s Common Stock set forth below (the “Option”). This Option is subject to all of the terms and conditions as set forth herein and in the Stock Option Agreement attached hereto as Exhibit A (the “Stock Option Agreement”) and the Plan, each of which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Grant Notice and the Stock Option Agreement.
Optionee: | _______________________ |
Grant Date: | _______________________ |
Vesting Commencement Date: | _______________________ |
Exercise Price per Share: | _______________________ |
Total Number of Shares Subject to Option: |
_______________________ |
Expiration Date: | _______________________ |
Type of Option: | Incentive Stock Option Non-Qualified Stock Option |
Vesting Schedule: | [To be included in individual agreements] |
Optionee Signature: |
_______________________ |
Acceptance of OPTION Award:
By signing where indicated above, Optionee agrees to be bound by the terms and conditions of this Grant Notice, the Stock Option Agreement and the Plan. Optionee acknowledges that he or she has reviewed and fully understands all of the provisions of this Grant Notice, the Stock Option Agreement and the Plan, and has had the opportunity to obtain advice of counsel prior to accepting the grant of the Option pursuant to this Grant Notice and Stock Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to this Grant Notice, the Stock Option Agreement and the Plan. |
EXHIBIT A
STOCK OPTION AGREEMENT
Pursuant to the Stock Option Grant Notice (“Grant Notice”) to which this Stock Option Agreement (this “Agreement”) is attached, the Company has granted to Optionee an option under the Plan to purchase the number of shares of Common Stock indicated in the Grant Notice.
GENERAL
GRANT OF OPTION
PERIOD OF EXERCISABILITY
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Optionee acknowledges that an Incentive Stock Option exercised more than three months after Optionee’s termination of status as an Employee, other than by reason of death or Disability, will be taxed as a Non-Qualified Stock Option.
For purposes of this Agreement, “Termination of Service” means the last to occur of Optionee’s Termination of Consultancy, Termination of Directorship or Termination of Employment, as applicable. Optionee shall not be deemed to have a Termination of Service merely because of a change in the capacity in which Optionee renders service to the Company or any Subsidiary (i.e., Optionee is an Employee and becomes a consultant) or a change in the entity for which Optionee renders such service (i.e., an Employee of the Company becomes an Employee of a Subsidiary), unless following such change in capacity or service Optionee is no longer serving as an Employee, Director or consultant of the Company or any Subsidiary.
For purposes of this Agreement, “Cause,” unless otherwise defined in an employment or services agreement between Optionee and the Company or any Subsidiary, shall mean Optionee’s substantial failure to perform duties as an Employee, Director or consultant, dishonesty, fraud, gross negligence or misconduct against the Company or any Subsidiary or affiliate, unauthorized use or disclosure of confidential information or trade secrets of the Company or any Subsidiary or affiliate, or conviction of, or plea of nolo contendere to, a crime punishable by law (except misdemeanor violations), in each case as determined by the Committee, and its determination shall be final and binding.
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3.4 Special Tax Consequences. Optionee acknowledges that, to the extent that the aggregate Fair Market Value (determined as of the time the Option is granted) of all shares of Common Stock with respect to which Incentive Stock Options, including the Option, are first exercisable for the first time by Optionee in any calendar year exceeds $100,000 (or such other limitation as imposed by Section 422(d) of the Code), the Option and such other options shall be treated as not qualifying under Section 422 of the Code but rather shall be considered Non-Qualified Stock Options. Optionee further acknowledges that the rule set forth in the preceding sentence shall be applied by taking Options and other “incentive stock options” into account in the order in which they were granted.
EXERCISE OF OPTION
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OTHER PROVISIONS
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(a) Optionee understands that Optionee (and not the Company) shall be responsible for any Tax Liability (as defined below) arising as a result of this Agreement or the transactions relating to the Option. Optionee agree to indemnify and keep indemnified the Company from and against any such Tax Liability.
(b) The Company has the authority to deduct or withhold, or require Optionee to remit to the Company, an amount sufficient to satisfy any withholding obligation for any Tax Liability. The Optionee authorizes the Company or their respective agents, at their sole discretion, to satisfy any applicable withholding obligations with respect to such withholding obligation for any Tax Liability by one or a combination of the following: (i) withholding from Optionee's cash compensation payable to Optionee; (ii) withholding shares of Common Stock otherwise to be delivered upon exercise of the Option equal to the amount of the Tax Liability; (iii) withholding from the proceeds of the sale of shares of Common Stock acquired upon exercise of the Option, either through a voluntary sale or through a mandatory sale arranged by the Company (on the Optionee’s behalf pursuant to this authorization) subject to any insider trading policies implemented by the Company and applicable to the Optionee, or (iv) paying the amount of the withholding obligation for any Tax Liability directly to the Company in cash. Optionee's acceptance of this Option constitutes Optionee's instruction and authorization to the Company and brokerage firm to complete the transactions described above, as applicable. Such shares of Common Stock will be sold on the day the withholding obligation for any Tax Liability arises or as soon thereafter as practicable. The shares of Common Stock may be sold as part of a block trade with other participants of the Plan in which all participants receive an average price. Optionee will be responsible for all broker’s fees and other costs of sale, and Optionee agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. To the extent the proceeds of such sale exceed Optionee's Tax Liability, the Company may pay such excess in cash to Optionee as soon as practicable and Optionee will have no entitlement to the Common Stock equivalent. Optionee acknowledges that the Company or its designee is under no obligation to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient to satisfy Optionee's Tax Liability. The Company may refuse to issue any Common Stock upon exercise of the Option until Optionee's Tax Liability is satisfied. To the maximum extent permitted by law, the Company has the right to retain without notice from shares of Common Stock issuable under the Option or from salary payable to Optionee, such shares or cash having a value sufficient to satisfy the withholding obligation for any Tax Liability. If the Company withholds less than the amount necessary to satisfy the liability, Optionee may be required to pay any additional Tax Liability directly to
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the applicable tax authority or to the Company. If the obligation for the Tax Liability is satisfied by withholding shares of Common Stock, for tax purposes, Optionee is deemed to have been issued the full number of shares of Common Stock subject to the exercise of the Option, notwithstanding that a number of the shares of Common Stock are held back solely for the purpose of paying the Tax Liability.
(c) For purposes of this Agreement, Optionee's “Tax Liability” shall mean all federal, state, local and any non U.S. income tax, social security contributions, payroll tax, fringe benefit tax, payment on account obligation or other related taxes, in each case that may arise as a result of (i) the grant, vesting or exercise of the Option, (ii) the issuance to Optionee of shares of Common Stock on the exercise of the Option, (iii) the disposition of any shares of Common Stock that were the subject of the Option, or (iv) any other transactions contemplated by this Agreement. The Company may withhold for the Tax Liability by considering statutory withholding rates or other applicable withholding rates, including minimum or maximum rates applicable in Optionee's jurisdiction.
(d) Optionee acknowledges that the Company (i) makes no representations or undertakings regarding the treatment of any Tax Liability in connection with any aspect of the Option, including, but not limited to, the grant, vesting or exercise of the Option, the subsequent sale of shares of Common Stock acquired pursuant to such exercise and the receipt of any dividends; and (ii) does not commit to and is under no obligation to structure the terms of the grant or any aspect of the Optionee to reduce or eliminate Optionee's Tax Liability or achieve any particular tax result. Optionee further acknowledges that if Optionee is subject to Tax Liability in more than one jurisdiction, the Company may be required to withhold or account for Tax Liability in more than one jurisdiction.
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5.12 Notification of Disposition. If this Option is designated as an Incentive Stock Option, Optionee shall give prompt notice to the Company of any disposition or other transfer of any shares of Common Stock acquired under this Agreement if such disposition or transfer is made (a) within two years from the Grant Date with respect to such shares or (b) within one year after the transfer of such shares to him. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by Optionee in such disposition or other transfer.
5.13 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if Optionee is subject to Section 16 of the Exchange Act, the Plan, the Option and this Agreement shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
5.14 Entire Agreement. The Plan, the Grant Notice and this Agreement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof.
5.15 Imposition of Other Requirements. The Company reserves the right to impose other requirements on Optionee's participation in the Plan, on the Option and on any shares of Common Stock acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require Optionee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
5.16 Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. Optionee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
5.17 Data Privacy.
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5.18 Waiver. Optionee acknowledges that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by Optionee or any other participant.
5.19 Insider Trading Restrictions/Market Abuse Laws. Optionee acknowledges that, Optionee may be subject to insider trading restrictions and/or market abuse laws which may affect Optionee's ability to accept, acquire, sell or otherwise dispose of shares of Common Stock, rights to shares of Common Stock
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(e.g., options) or rights linked to the value of shares of Common Stock during such times when Optionee is considered to have “inside information” regarding the Company, as defined by the laws or regulations in Optionee's country. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. Optionee further acknowledges that it is their responsibility to comply with any applicable restrictions, and Optionee should speak to Optionee's personal advisor on this matter.
5.20 Foreign Asset/Account and Tax Reporting; Exchange Control Requirements. Optionee acknowledges that there may be certain foreign asset, account reporting and/or tax reporting requirements and exchange controls which may affect Optionee's ability to acquire or hold shares of Common Stock under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds arising from the sale of shares of Common Stock) in a brokerage or bank account outside Optionee's country. Optionee understands that they may be required to report such accounts, assets or related transactions to the tax or other authorities in Optionee's country. Optionee also may be required to repatriate sale proceeds or other funds received as a result of Optionee's participation in the Plan to Optionee's country through a designated bank or broker and/or within a certain time after receipt. In addition, Optionee may be subject to tax payment and/or reporting obligations in connection with any income realized under the Plan and/or from the sale of shares of Common Stock. Optionee acknowledges that it is Optionee's responsibility to be compliant with all such requirements, and Optionee should speak to their personal advisor on this matter.
5.21 No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Optionee's participation in the Plan, or Optionee's acquisition or sale of the underlying Common Stock. Optionee should consult with their own personal tax, legal and financial advisors regarding Optionee's participation in the Plan before taking any action related to the Plan.
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