EXHIBIT 10.2
Note: These pages are provided solely for purposes of content, setting forth the
language on the back of the Option Grant(s). The following does not evidence the
Option Grant(s), that is accomplished solely by the Stock Option Grant
Certificate.
THE SECURITIES EVIDENCED HEREBY (OR ISSUABLE UPON EXERCISE HEREOF) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY THE SECURITIES ACT, REGULATION D AND/OR RULE 701, PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION. THE SECURITIES EVIDENCED HEREBY (AND THE
SHARES ISSUABLE UPON EXERCISE HEREOF) ARE OR WILL BE SUBJECT TO RESTRICTIONS ON
TRANSFER AND RESALE UNDER A STOCKHOLDERS AGREEMENT AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS
PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.
LABTEC, INC.
1997 EMPLOYEE STOCK OPTION
Option Certificate and Agreement
This stock option is granted by Labtec, Inc., a Delaware corporation
(the "Company"), to the Optionee noted on the facing page (the "Optionee"),
pursuant to the Company's 1997 Employee Stock Option Plan (the "Plan"). All
initially capitalized terms not otherwise defined herein shall have the meaning
provided in the Plan.
1. Grant of Option
---------------
This certificate evidences the grant by the Company on the date shown
on the facing page (the "Grant Date") to the Optionee of an option to purchase,
in whole or in part, on the terms provided herein and in the Plan, a total of
the shares indicated on the facing page of Common Stock, par value $.01 per
share, of the Company (the "Shares") at the Option Exercise Price per share
indicated on the facing page.
The latest date on which this option may be exercised (the "Expiration
Date") is the earliest of (a) October 7, 2007, or (b) the termination hereof in
accordance with this Agreement, the Stockholders Agreement dated as of October
7, 1997 among the Company and certain other parties thereto as amended and in
effect from time to time (the "Stockholders Agreement") or the Plan.
The option evidenced by this certificate is not intended to qualify as
an incentive stock option under Section 422 of the Internal Revenue Code (the
"Code").
Subject to the following sentence, this option shall become exercisable
in annual installments over four years beginning on the date indicated on the
facing page (the "Initial Vesting Date") (i.e., it shall become exercisable as
to 25% of the total number of Shares on the Initial Vesting Date and on each
anniversary thereof, except as accelerated by the Board pursuant to the Plan.).
Notwithstanding the foregoing, in the event of any Change in Control (as defined
in the Stockholders Agreement), this option shall be exercisable for 100% of the
number of Shares set forth on the facing page (but in no event shall this option
be exercisable for more than the number of shares set forth on the facing page);
provided, however, that any transaction after which the Company (or any other
entity owning substantially all of the consolidated assets of the Company)
becomes the direct or indirect subsidiary of an entity (but not including
another direct or indirect subsidiary) of which more than 50% of the voting
stock is not owned by a Person (or group of Persons acting in concert) other
than Bain Capital, Inc., Sun Capital Partners, Inc. or any of their Affiliates
(a "Related Transaction") shall not be a Change in Control for Purposes hereof.
In connection with any Related Transaction, clause (ii) of Section 6(i) of the
Plan shall apply and no consent of the Optionee shall be required.
2. Exercise of Option
------------------
Each election to exercise this option shall be in writing, signed by
the Optionee or by his or her executor or administrator or by the person or
persons to whom this option is transferred by will or the applicable laws of
descent and distribution (the "Legal Representative"), and received by the
Company at its principal office, accompanied by payment in full of the
applicable exercise price and by such additional documentation evidencing the
right to exercise (or, in the case of a Legal Representative, of the authority
of such person) as the Company may require. The exercise price may be paid (i)
in cash, bank cashier's check acceptable to the Company, or money order payable
to the order of the Company or (ii) by any other means acceptable to the Board
in its sole discretion.
3. Stockholders Agreement
----------------------
This option and any Shares received upon the exercise of this option
shall be subject to the Stockholders Agreement, and no Shares shall be issued
upon the exercise of this option unless and until the Optionee shall have
executed the Stockholders Agreement or a Joinder to Stockholders Agreement
satisfactory to the Company. The Shares received upon exercise of this option
shall be subject to the rights, restrictions and obligations applicable to
"Management Shares" as provided from time to time in such Stockholders Agreement
and (if applicable) Joinder to Stockholders Agreement. Without limiting the
generality of the foregoing provisions, in the event any Shares are issuable and
issued upon exercise of this option after termination of employment as
contemplated by Section 6 below, then such shares shall be subject to the
provisions of the Stockholders Agreement (including but not limited to the call
provisions of Section 7 of the Stockholders Agreement) to the same extent as if
such Shares were issued prior to such termination of employment.
4. Restrictions on Transfer
------------------------
In addition to the provisions of Section 3 above, if at the time this
option is exercised the Company is a party to any other agreement restricting
the transfer of any outstanding shares of its Common Stock, this option may be
exercised only if the Shares so acquired are made subject to the transfer
restrictions set forth in that agreement (or if more than one such agreement is
then in effect,
-2-
the agreement or agreements specified by the Board); provided that such Shares
may be appropriately legended to reflect the foregoing restrictions or any other
restrictions to which such Shares may be subject.
5. Withholding
-----------
No Shares will be transferred pursuant to the exercise of this option
unless and until the person exercising this option shall have remitted to the
Company an amount sufficient to satisfy any federal, state or local withholding
tax requirements, or shall have made other arrangements satisfactory to the
Company with respect to such taxes.
6. Status Change
-------------
Upon the termination of the Optionee's employment, this option shall
terminate as to any Shares not vested immediately prior to termination;
provided, that the Board in its sole discretion may, but shall not be obligated
to, provide (either prior to or following termination) that any or all of such
portion of this option not otherwise vested prior to termination shall be
treated as having become vested immediately prior to termination. As to that
number of Shares for which the option was vested, or deem vested by action of
the Board, immediately prior to termination, it shall become and remain
exercisable as follows:
(i) if termination occurs for any reason other than death, for a period
of 90 days following such date of termination, but in no event beyond the
Expiration Date, or (ii) if termination occurs because of death, for a period of
180 days following such date of termination, but in no event beyond the
Expiration Date. Notwithstanding the foregoing, if the Optionee is terminated
"for cause" (as defined in Section 6(h) of the Plan), this option shall
immediately terminate as to all Shares subject hereto, whether or not vested
immediately prior to such termination for cause.
7. Effect on Employment
--------------------
Neither the grant of this option, nor the issuance of Shares upon
exercise of this option, shall give the Optionee any right to be retained in the
employ of the Company, affect the right of the Company to discharge or
discipline such Optionee at any time, or affect any right of such Optionee to
terminate his or her employment at any time.
8. Provisions of the Plan
----------------------
This option is subject in its entirety to the provisions of the Plan, a
copy of which is furnished to the Optionee with this option.
9. Termination of Option on Certain Events
---------------------------------------
The Optionee has entered into a certain agreement with the Company (the
"[Employment] [Letter] Agreement") containing, among other things, provisions
regarding noncompetition and nonsolicitation, protection of confidential
information and documents and intellectual property rights. Notwithstanding
anything herein, in the Plan or in any other document to the contrary, in the
event that the Optionee breaches such covenants made by the Optionee in the
Employment Agreement, this option shall terminate immediately as to all Shares
subject hereto, whether or not vested.
-3-
10. Miscellaneous
-------------
This Option Certificate and Agreement in all respects, including all
matters of construction, shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without regard to any laws or
rules governing conflicts of laws. By execution hereof, the Optionee agrees that
any controversy, dispute or claim arising out of or relating to this Agreement
which cannot be settled by mutual agreement shall be finally settled by
arbitration as follows: Any party who is aggrieved shall deliver a notice to the
other parties hereto setting forth the specific points in dispute. Any points
remaining in dispute 45 days after the giving of such notice shall be submitted
to binding arbitration in the State of Washington to the American Arbitration
Association ("AAA") before a single arbitrator mutually agreeable to the
parties, and failing such agreement, appointed in accordance with AAA's
Arbitration Rules (the "Rules"), modified only as herein expressly provided. The
arbitrator may enter a default decision against any party who fails to
participate in the arbitration proceedings after having been notified in
accordance with the Rules. The decision of the arbitrator on the points in
dispute will be final, unappealable and binding and judgment on the award may be
entered in any court having jurisdiction thereof. In any dispute arising from or
in connection with this Agreement, the non-prevailing party shall pay its own
and the prevailing party's fees and expenses (including reasonable attorneys'
fees).
-4-
[BACK]
THE SECURITIES EVIDENCED HEREBY (OR ISSUABLE UPON EXERCISE HEREOF) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY THE SECURITIES ACT, REGULATION D AND/OR RULE 701, PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION. THE SECURITIES EVIDENCED HEREBY (AND THE
SHARES ISSUABLE UPON EXERCISE HEREOF) ARE OR WILL BE SUBJECT TO RESTRICTIONS ON
TRANSFER AND RESALE UNDER A STOCKHOLDERS AGREEMENT AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS
PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.
LABTEC, INC.
1997 EMPLOYEE STOCK OPTION
Option Certificate and Agreement
- --------------------------------
This stock option is granted by Labtec, Inc., a Delaware corporation (the
"Company"), to the Optionee noted on the facing page (the "Optionee"), pursuant
to the Company's 1997 Employee Stock Option Plan (the "Plan"). All initially
capitalized terms not otherwise defined herein shall have the meaning provided
in the Plan.
1. Grant of Option
---------------
This certificate evidences the grant by the Company on the date shown on the
facing page (the "Grant Date") to the Optionee of an option to purchase, in
whole or in part, on the terms provided herein and in the Plan, a total of the
shares indicated on the facing page of Common Stock, par value $.01 per share,
of the Company (the "Shares") at the Option Exercise Price per share indicated
on the facing page.
The latest date on which this option may be exercised (the "Expiration Date") is
the earliest of (a) October 7, 2007, or (b) the termination hereof in accordance
with this Agreement, the Stockholders Agreement dated as of October 7, 1997
among the Company and certain other parties thereto as amended and in effect
from time to time (the "Stockholders Agreement") or the Plan.
The option evidenced by this certificate is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code (the
"Code").
Subject to the following sentence, this option shall become exercisable in
annual installments over four years beginning on the date indicated on the
facing page (the "Initial Vesting Date") (i.e., it shall become exercisable as
to 25% of the total number of Shares on the Initial Vesting Date and on each
anniversary thereof, except as accelerated by the Board pursuant to the Plan.).
Notwithstanding the foregoing, in the event of any Change in Control (as defined
in the Stockholders Agreement), this option shall be exercisable for 100% of the
number of Shares set forth on the facing page (but in no event shall this option
be exercisable for more than the number of shares set forth on the facing page);
provided, however, that any transaction after which the Company (or any other
entity owning substantially all of the consolidated assets of the Company)
becomes the direct or indirect subsidiary of an entity (but not including
another direct or indirect subsidiary) of which more than 50% of the voting
stock is not owned by a Person (or group of Persons acting in concert) other
than Bain Capital, Inc., Sun Capital Partners, Inc. or any of their Affiliates
(a "Related Transaction") shall not be a Change in Control for Purposes hereof.
In connection with any Related Transaction, clause (ii) of Section 6(i) of the
Plan shall apply and no consent of the Optionee shall be required.
2. Exercise of Option
------------------
-5-
Each election to exercise this option shall be in writing, signed by the
Optionee or by his or her executor or administrator or by the person or persons
to whom this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office, accompanied by payment in full of the applicable exercise
price and by such additional documentation evidencing the right to exercise (or,
in the case of a Legal Representative, of the authority of such person) as the
Company may require. The exercise price may be paid (i) in cash, bank cashier's
check acceptable to the Company, or money order payable to the order of the
Company or (ii) by any other means acceptable to the Board in its sole
discretion.
3. Stockholders Agreement
----------------------
This option and any Shares received upon the exercise of this option shall be
subject to the Stockholders Agreement, and no Shares shall be issued upon the
exercise of this option unless and until the Optionee shall have executed the
Stockholders Agreement or a Joinder to Stockholders Agreement satisfactory to
the Company. The Shares received upon exercise of this option shall be subject
to the rights, restrictions and obligations applicable to "Management Shares" as
provided from time to time in such Stockholders Agreement and (if applicable)
Joinder to Stockholders Agreement. Without limiting the generality of the
foregoing provisions, in the event any Shares are issuable and issued upon
exercise of this option after termination of employment as contemplated by
Section 6 below, then such shares shall be subject to the provisions of the
Stockholders Agreement (including but not limited to the call provisions of
Section 7 of the Stockholders Agreement) to the same extent as if such Shares
were issued prior to such termination of employment.
4. Restrictions on Transfer
------------------------
In addition to the provisions of Section 3 above, if at the time this option is
exercised the Company is a party to any other agreement restricting the transfer
of any outstanding shares of its Common Stock, this option may be exercised only
if the Shares so acquired are made subject to the transfer restrictions set
forth in that agreement (or if more than one such agreement is then in effect,
the agreement or agreements specified by the Board); provided that such Shares
may be appropriately legended to reflect the foregoing restrictions or any other
restrictions to which such Shares may be subject.
5. Withholding
-----------
No Shares will be transferred pursuant to the exercise of this option unless and
until the person exercising this option shall have remitted to the Company an
amount sufficient to satisfy any federal, state or local withholding tax
requirements, or shall have made other arrangements satisfactory to the Company
with respect to such taxes.
6. Status Change
-------------
Upon the termination of the Optionee's employment, this option shall terminate
as to any Shares not vested immediately prior to termination; provided, that the
Board in its sole discretion may, but shall not be obligated to, provide (either
prior to or following termination) that any or all of such portion of this
option not otherwise vested prior to termination shall be treated as having
become vested immediately prior to termination. As to that number of Shares for
which the option was vested, or deem vested by action of the Board, immediately
prior to termination, it shall become and remain exercisable as follows:
(i) if termination occurs for any reason other than death, for a period of 90
days following such date of termination, but in no event beyond the Expiration
Date, or (ii) if termination occurs because of death, for a period of 180 days
following such date of termination, but in no event beyond the Expiration Date.
Notwithstanding the foregoing, if the Optionee is terminated "for cause" (as
defined in Section 6(h) of the Plan), this option shall immediately terminate as
to all Shares subject hereto, whether or not vested immediately prior to such
termination for cause.
7. Effect on Employment
--------------------
Neither the grant of this option, nor the issuance of Shares upon exercise of
this option, shall give the Optionee any right to be retained in the employ of
the Company, affect the right of the Company to discharge or discipline such
Optionee at any time, or affect any right of such Optionee to terminate his or
her employment at any time.
8. Provisions of the Plan
----------------------
-6-
This option is subject in its entirety to the provisions of the Plan, a copy of
which is furnished to the Optionee with this option.
9. Termination of Option on Certain Events
---------------------------------------
The Optionee has entered into a certain agreement with the Company (the
"[Employment] [Letter] Agreement") containing, among other things, provisions
regarding noncompetition and nonsolicitation, protection of confidential
information and documents and intellectual property rights. Notwithstanding
anything herein, in the Plan or in any other document to the contrary, in the
event that the Optionee breaches such covenants made by the Optionee in the
Employment Agreement, this option shall terminate immediately as to all Shares
subject hereto, whether or not vested.
10. Miscellaneous
-------------
This Option Certificate and Agreement in all respects, including all matters of
construction, shall be governed by and construed and enforced in accordance with
the laws of the State of Delaware, without regard to any laws or rules governing
conflicts of laws. By execution hereof, the Optionee agrees that any
controversy, dispute or claim arising out of or relating to this Agreement which
cannot be settled by mutual agreement shall be finally settled by arbitration as
follows: Any party who is aggrieved shall deliver a notice to the other parties
hereto setting forth the specific points in dispute. Any points remaining in
dispute 45 days after the giving of such notice shall be submitted to binding
arbitration in the State of Washington to the American Arbitration Association
("AAA") before a single arbitrator mutually agreeable to the parties, and
failing such agreement, appointed in accordance with AAA's Arbitration Rules
(the "Rules"), modified only as herein expressly provided. The arbitrator may
enter a default decision against any party who fails to participate in the
arbitration proceedings after having been notified in accordance with the Rules.
The decision of the arbitrator on the points in dispute will be final,
unappealable and binding and judgment on the award may be entered in any court
having jurisdiction thereof. In any dispute arising from or in connection with
this Agreement, the non-prevailing party shall pay its own and the prevailing
party's fees and expenses (including reasonable attorneys' fees).
-7-