EXHIBIT 10.59
THE GYMBOREE CORPORATION
STOCK OPTION GRANT NOTICE
2004 EQUITY INCENTIVE PLAN
The Gymboree Corporation (the "Company") hereby grants to Participant an
Option (the "Option") to purchase shares of the Company's Common Stock. The
Option is subject to all the terms and conditions set forth in this Stock Option
Grant Notice (this "Grant Notice") and in the Stock Option Agreement and the
Company's 2004 Equity Incentive Plan (the "Plan"), which are attached to and
incorporated into this Grant Notice in their entirety.
PARTICIPANT: <<First_Name>><<Last_Name>>
GRANT DATE: <<Grant_Date>>
VESTING COMMENCEMENT DATE: <<Vest_Date>>
NUMBER OF SHARES SUBJECT TO OPTION: <<Shares>>
EXERCISE PRICE (PER SHARE): <<Price>>
OPTION EXPIRATION DATE: <<Expiration_Date>> (subject to earlier
termination in accordance with the terms
of the Plan and the Stock Option
Agreement)
TYPE OF OPTION: [ ] Incentive Stock Option*
[ ] Nonqualified Stock Option
VESTING AND EXERCISABILITY SCHEDULE:
ADDITIONAL TERMS/ACKNOWLEDGEMENT: By accepting this Option online, the
undersigned Participant acknowledges receipt of, and understands and agrees to,
this Grant Notice, the Stock Option Agreement, the Plan Summary and the Plan.
Participant further acknowledges that as of the Grant Date, this Grant Notice,
the Stock Option Agreement and the Plan set forth the entire understanding
between Participant and the Company regarding the Option and supersede all prior
oral and written agreements on the subject.
THE GYMBOREE CORPORATION
By: /s/ LISA M. HARPER
Title: Chief Executive Officer / Chairman
Taxpayer ID: 94-2615258
ATTACHMENTS:
1. Stock Option Agreement
2. 2004 Equity Incentive Plan
3. Plan Summary
- ---------------------------
* See Sections 3 and 4 of the Stock Option Agreement.
THE GYMBOREE CORPORATION
2004 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
Pursuant to your Stock Option Grant Notice (the "Grant Notice") and this
Stock Option Agreement, The Gymboree Corporation has granted you an Option under
its 2004 Equity Incentive Plan (the "Plan") to purchase the number of shares of
the Company's Common Stock indicated in your Grant Notice (the "Shares") at the
exercise price indicated in your Grant Notice. Capitalized terms not explicitly
defined in this Stock Option Agreement but defined in the Plan shall have the
same definitions as in the Plan.
The details of the Option are as follows:
1. VESTING AND EXERCISABILITY. Subject to the limitations contained
herein, the Option will vest and become exercisable as provided in your Grant
Notice, provided that vesting will cease upon a termination of your employment
or service relationship with the Company or a Related Company for any reason,
whether voluntary or involuntary, including by reason of death or Disability
("Termination of Service") and the unvested portion of the Option will
terminate.
2. SECURITIES LAW COMPLIANCE. At the present time, the Company has an
effective registration statement with respect to the Shares. The Company intends
to maintain this registration but has no obligation to do so. Notwithstanding
any other provision of this Agreement, in the event that such registration
ceases to be effective, you will not be able to exercise the Option unless the
Company has determined that such exercise and issuance would be exempt from the
registration requirements of the Securities Act. The exercise of the Option must
also comply with other applicable laws and regulations governing the Option, and
you may not exercise the Option if the Company determines that such exercise
would not be in material compliance with such laws and regulations.
3. INCENTIVE STOCK OPTION QUALIFICATION. If so designated in your Grant
Notice, all or a portion of the Option is intended to qualify as an Incentive
Stock Option under federal income tax law, but the Company does not represent or
guarantee that the Option qualifies as such.
If the Option has been designated as an Incentive Stock Option and the
aggregate Fair Market Value (determined as of the grant date) of the shares of
Common Stock subject to the portions of the Option and all other Incentive Stock
Options you hold that first become exercisable during any calendar year exceeds
$100,000, any excess portion will be treated as a Nonqualified Stock Option,
unless the Internal Revenue Service changes the rules and regulations governing
the $100,000 limit for Incentive Stock Options. A portion of the Option may be
treated as a Nonqualified Stock Option if certain events cause exercisability of
the Option to accelerate.
4. NOTICE OF DISQUALIFYING DISPOSITION. To the extent the Option has
been designated as an Incentive Stock Option, to obtain certain tax benefits
afforded to Incentive Stock Options, you must hold the Shares issued upon the
exercise of the Option for two years after the Grant Date and one year after the
date of exercise. You may be subject to the alternative minimum tax at the time
of exercise. You should obtain tax advice when exercising the Option and prior
to the disposition of the Shares. By accepting the Option, you agree to promptly
notify the Company if you dispose of any of the Shares within one year from the
date you exercise all or part of the Option or within two years from the Grant
Date.
5. METHOD OF EXERCISE. You may exercise the Option by giving written
notice to the Company (or a brokerage firm designated or approved by the Company
as specified below), in form and substance satisfactory to the Company, which
will state your election to exercise the Option and the number of Shares for
which you are exercising the Option. The written notice must be accompanied by
full payment of the exercise price for the number of Shares you are purchasing.
You may make this payment in any combination of the following: (a) cash, check
or wire transfer; (b) tendering shares of Common Stock that have a Fair Market
Value equal to the aggregate exercise price of the Shares being purchased and
that you have owned for at least six months (or any shorter period necessary to
avoid a charge to the Company earnings for financial reporting purposes); (c) so
long as the Common Stock is registered under the Exchange Act, and to the extent
permitted by law, delivery of an executed exercise notice and irrevocable
instructions to a brokerage firm designated or approved by the Company to
deliver promptly to the Company the aggregate amount of proceeds to pay the
Option exercise price and any withholding tax obligations that may arise in
connection with the exercise, all in accordance with the regulations of the
Federal Reserve Board, or (d) any other method permitted by the Committee.
6. TREATMENT UPON TERMINATION OF SERVICE. The unvested portion of the
Option will terminate automatically and without further notice immediately upon
your Termination of Service. You may exercise the vested portion of the Option
as follows:
(a) General Rule. You must exercise the vested portion of the
Option on or before the earlier of (i) three months after your Termination of
Service and (ii) the Option Expiration Date;
(b) Disability. If your Termination of Service is due to
Disability, you must exercise the vested portion of the Option on or before the
earlier of (i) one year after your Termination of Service and (ii) the Option
Expiration Date;
(c) Death. If your Termination of Service is due to your death,
the vested portion of the Option must be exercised on or before the earlier of
(i) one year after your Termination of Service and (ii) the Option Expiration
Date. If you die after your Termination of Service but while the Option is still
exercisable, the vested portion of the Option may be exercised until the earlier
of (x) one year after the date of death and (y) the Option Expiration Date; and
-2-
(d) Cause. The vested portion of the Option will automatically
expire at the time the Company first notifies you of your Termination of Service
for Cause, unless the Committee determines otherwise. If your employment or
service relationship is suspending pending an investigation of whether you will
be terminated for Cause, all your rights under the Option likewise will be
suspended during the period of investigation. If any facts that would constitute
termination for Cause are discovered after your Termination of Service, any
Option you then hold may be immediately terminated by the Committee in its sole
discretion.
The Option must be exercised within three months after your Termination of
Service for reasons other than death or Disability and one year after your
Termination of Service due to Disability to qualify for the beneficial tax
treatment afforded Incentive Stock Options.
IT IS YOUR RESPONSIBILITY TO BE AWARE OF THE DATE THE OPTION TERMINATES.
7. LIMITED TRANSFERABILITY. During your lifetime only you can exercise
the Option. The Option is not transferable except by will or by the applicable
laws of descent and distribution. The Plan provides for exercise of the Option
by a beneficiary designated on a Company-approved form or the personal
representative of your estate. Notwithstanding the foregoing and to the extent
permitted by Section 422 of the Internal Revenue Code of 1986, the Committee, in
its sole discretion, may permit you to assign or transfer the Option, subject to
such terms and conditions as specified by the Committee.
8. WITHHOLDING TAXES. As a condition to the exercise of any portion of
the Option, you must make such arrangements as the Company may require for the
satisfaction of any federal, state, local or foreign withholding tax obligations
that may arise in connection with such exercise.
9. OPTION NOT AN EMPLOYMENT OR SERVICE CONTRACT. Nothing in the Plan or
any Award granted under the Plan will be deemed to constitute an employment
contract or confer or be deemed to confer any right for you to continue in the
employ of, or to continue any other relationship with, the Company or any
Related Company or limit in any way the right of the Company or any Related
Company to terminate your employment or other relationship at any time, with or
without Cause.
10. NO RIGHT TO DAMAGES. You will have no right to bring a claim or to
receive damages if you are required to exercise the vested portion of the Option
within three months (one year in the case of Disability or death) of your
Termination of Service or if any portion of the Option is cancelled or expires
unexercised. The loss of existing or potential profit in an Award will not
constitute an element of damages in the event of your Termination of Service for
any reason even if the termination is in violation of an obligation of the
Company or a Related Company to you.
-3-
11. BINDING EFFECT. This Agreement will inure to the benefit of the
successors and assigns of the Company and be binding upon you and your heirs,
executors, administrators, successors and assigns.
-4-