EXHIBIT 10.34
COMPS INFOSYSTEMS, INC.
1998 SUPPLEMENTAL STOCK OPTION PLAN
FORM OF NOTICE OF GRANT OF STOCK OPTION
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Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Class B Common Stock of COMPS InfoSystems, Inc. (the
"Corporation"):
Optionee: _________________
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Grant Date: _______________
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Vesting Commencement Date: __________________
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Exercise Price: $____ per share
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Number of Option Shares: _________ shares of Class B Common Stock as Incentive
- ----------------------- Stock Option Shares; and
_________ shares of Class B Common Stock as Non-
Statutory Stock Option Shares
Expiration Date: ____________
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Type of Option:
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_____ Incentive Stock Option
_____ Non-Statutory Stock Option
Date Exercisable: ________________
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Vesting Schedule: The shares of the Corporation's Class B Common Stock subject
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to this option (the "Option Shares") shall initially be unvested and subject to
repurchase by the Corporation at the Exercise Price paid per share. Optionee
shall acquire a vested interest in, and the Corporation's repurchase right shall
accordingly lapse, with respect to (i) 20% of the Incentive Stock Option Shares
on the Vesting Commencement Date, (ii) 100% of the Non-Statutory Stock Option
Shares on the Vesting Commencement Date and (ii) the remaining 80% of the
Incentive Stock Option Shares shall vest in successive equal monthly
installments over a forty-eight (48) month period commencing on January 1, 1999.
Optionee understands and agrees that the Option is granted subject to
and in accordance with the terms of the Corporation's 1998 Supplemental Option
Plan (the "Plan").
Optionee understands that any Option Shares purchased under the Option
will be subject to the terms set forth in the Purchase Agreements attached
hereto as Exhibit C. Optionee hereby acknowledges receipt of a copy of the Plan
in the form attached hereto as Exhibit D.
REPURCHASE RIGHTS. OPTIONEE HEREBY AGREES THAT ALL OPTION SHARES
ACQUIRED UPON THE EXERCISE OF THE OPTION SHALL BE SUBJECT TO CERTAIN RIGHTS OF
FIRST REFUSAL EXERCISABLE BY THE CORPORATION AND ITS ASSIGNS. THE TERMS OF SUCH
RIGHTS ARE SPECIFIED IN THE ATTACHED STOCK PURCHASE AGREEMENT.
No Employment or Service Contract. Nothing in this Notice or in the
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attached Incentive Stock Option Agreement, Non-Statutory Option Agreement or
Plan shall confer upon Optionee any right to continue in Service for any period
of specific duration or interfere with or otherwise restrict in any way the
rights of the Corporation (or any Parent or Subsidiary employing or retaining
Optionee) or of Optionee, which rights are hereby expressly reserved by each, to
terminate Optionee's Service at any time for any reason, with or without cause.
Definitions. All capitalized terms in this Notice shall have the
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meaning assigned to them in this Notice or in the attached Incentive Stock
Option Agreement or Non-Statutory Option Agreement.
DATED: ___________, 1998
COMPS INFOSYSTEMS, INC.
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Christopher A. Crane, President
OPTIONEE:
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Attachments (Not Included):
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EXHIBIT A - INCENTIVE STOCK OPTION AGREEMENT (NOT INCLUDED)
EXHIBIT B - NON-STATUTORY OPTION AGREEMENT
EXHIBIT C - STOCK PURCHASE AGREEMENT (NOT INCLUDED)
EXHIBIT D - 1998 SUPPLEMENTAL OPTION PLAN (NOT INCLUDED)
2
Exhibit B
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated ___________, 199_ is made by and between COMPS
InfoSystems, Inc., a Delaware corporation hereinafter referred to as "Company,"
and _____________, hereinafter referred to as "Optionee":
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its $.0l par value non-voting Class B Common Stock; and
WHEREAS, the Board of Directors of the Company has determined that it
would be to the advantage and best interest of the Company and its shareholders
to grant the Non-Qualified Option provided for herein to the Optionee, and has
advised the Company thereof and instructed the undersigned officers to issue
said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
1.1. Administrator
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"Administrator" shall mean: the Board.
1.2. Board
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"Board" shall mean the Board of Directors of the Company.
1.3. Code
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
1.4. Committee
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"Committee" shall mean the Stock Option Committee of the Board.
1.5. Common Stock
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"Common Stock" shall mean the Company's non-voting Class B Common
Stock, par value $.0l per share.
1.6. Company
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"Company" shall mean COMPS InfoSystems, Inc.
1.7. Exchange Act
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.8. Initial Public Offering
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"Initial Public Offering" shall mean the closing of the sale of the
Company's securities pursuant to an underwritten public offering.
1.9. Option
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"Option" shall mean the non-qualified option to purchase Common Stock
of the Company granted under this Agreement.
1.10. Rule 16b-3
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"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
1.11. Secretary
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"Secretary" shall mean the Secretary of the Company.
1.12. Securities Act
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"Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II.
GRANT OF OPTION
2.1. Grant of Option
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On the date hereof the Company irrevocably grants to the Optionee the
option to purchase any part or all of an aggregate of __________ shares of its
$.0l par value non-voting Class B Common Stock upon the terms and conditions set
forth in this Agreement.
2.2. Purchase Price
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The purchase price of the shares of stock covered by the Option shall
be $.__ per share without commission or other charge.
2.3. Adjustments in Option
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In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Administrator shall make an appropriate
and equitable adjustment in the number and kind of shares as to which the
Option, or portions thereof then unexercised, shall be exercisable, to the end
that after such event the Optionee's proportionate interest shall be maintained
as before the occurrence of such event. Such adjustment in the Option shall be
made without change in the total price applicable to the unexercised portion of
the Option (except for any change in the aggregate price resulting from
rounding-off of share quantities or prices) and with any necessary corresponding
adjustment in the Option price per share. Any such adjustment made by the
Administrator shall be final and binding upon the Optionee, the Company and all
other interested persons.
ARTICLE III.
PERIOD OF EXERCISABILITY
3.1. Commencement of Exercisability
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The Option shall become exercisable immediately upon execution and
delivery of this Agreement.
3.2. Duration of Exercisability
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The Option shall remain exercisable until it becomes unexercisable
under Section 3.3.
3.3. Expiration of Option
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The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) The expiration of one (1) year from the date of the Optionee's
death; or
(c) The effective date of either the merger or consolidation of the
Company with or into another corporation, or the acquisition by another
corporation or person of all or substantially all of the Company's assets or
eighty percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company, unless the Administrator waives
this provision in connection with such transaction. At least ten (10) days
prior to the effective date of such merger, consolidation, acquisition,
liquidation or dissolution, the Administrator shall give the Optionee notice of
such event if the Option has then neither been fully exercised nor become
unexercisable under this Section 3.3.
ARTICLE IV.
EXERCISE OF OPTION
4.1. Person Eligible to Exercise
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During the lifetime of the Optionee, only he may exercise the Option
or any portion thereof. After the death or incapacity of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Optionee's will or under the then
applicable laws of descent and distribution.
4.2. Partial Exercise
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Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
One Thousand (1000) shares (or the minimum installment set forth in Section 3.1,
if a smaller number of shares) and shall be for whole shares only.
4.3. Manner of Exercise
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The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion, stating that the Option or portion
is thereby exercised, such notice complying with all applicable rules
established by the Committee; and
(i) Full payment (by cashiers check or wire transfer) for the
shares with respect to which such Option or portion is exercised; or
(ii) With the consent of the Administrator, (A) shares of the
Company's Common Stock owned by the Optionee duly endorsed for transfer to
the Company or (B) subject to the timing requirements of Section 4.4,
shares of the Company's Common Stock issuable to the Optionee upon exercise
of the Option, with a fair market value on the date of Option exercise
equal to the aggregate purchase price of the shares with respect to which
such Option or portion is exercised; or
(iii) With the consent of the Administrator, a promissory note
bearing interest (at no less than such rate as shall then preclude the
imputation of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Administrator. The
Administrator may also prescribe the form of such note and the security to
be given for such note. That Option may not be exercised, however, by
delivery of a promissory note or by a loan from the Company when or where
such loan or other extension of credit is prohibited by law; or
(iv) With the consent of the Administrator, any combination of
the consideration provided in the foregoing subparagraphs (i) - (iii); and
(b) A bona fide written representation and agreement, in a form
satisfactory to the Administrator, signed by the Optionee or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Administrator may, in its
absolute discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Administrator may require an opinion of counsel acceptable to it
to the effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue stop-transfer orders
covering such shares. Share certificates evidencing stock issued on exercise of
this Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such exercise
have been registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(c) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; with the consent of the Administrator, (i) shares
of the Company's Common Stock owned by the Optionee duly endorsed for transfer,
or (ii) subject to the timing requirements of Section 4.4, shares of the
Company's Common Stock issuable to the Optionee upon exercise of the Option,
valued at fair market value at the date of Option exercise, may be used to make
all or part of such payment; and
(d) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option.
4.4. Certain Timing Requirements
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Shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option may be used to satisfy the Option price or the tax
withholding consequences of such exercise only (i) during the period beginning
on the third (3rd) business day following the date of release of the quarterly
or annual summary statement of sales and earnings of the Company and ending on
the twelfth (12th) business day following such date or (ii) pursuant to an
irrevocable written election by the Optionee to use shares of the Company's
Common Stock issuable to the Optionee upon exercise of the Option to pay all or
part of the Option price or the withholding taxes (subject to the approval of
the Administrator) made at least six (6) months prior to the payment of such
Option price or withholding taxes.
4.5. Conditions to Issuance of Stock Certificates
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The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Administrator shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Administrator shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise
of the Option as the Administrator may from time to time establish for reasons
of administrative convenience.
4.6. Rights as Shareholder
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The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V.
OTHER PROVISIONS
5.1. Administration
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The Administrator shall have the power to interpret this Agreement and
to adopt such rules for the administration, interpretation and application of
this Agreement as are consistent therewith and to interpret or revoke any such
rules. All actions taken and all interpretations and determinations made by the
Administrator in good faith shall be final and binding upon the Optionee, the
Company and all other interested persons. No member of the Administrator shall
be personally liable for any action, determination or interpretation made in
good faith with respect to this Agreement or the Option. In the event that the
Administrator is
the Committee, the Board shall have no right to exercise any of
the rights or duties of the Committee under this Agreement.
5.2. Option Not Transferable
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Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
5.3. Shares to Be Reserved
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The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
5.4. Notices
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Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall,
if the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
be deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
5.5. Titles
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Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
5.6. Construction
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This Agreement shall be administered, interpreted and enforced under
the laws of the State of Delaware.
5.7. Conformity to Securities Laws
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The Optionee acknowledges that this Agreement is intended to conform
to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities
and Exchange Commission thereunder,
including without limitation Rule 16b-3. Notwithstanding anything herein to the
contrary, this Agreement shall be administered, and the Option is granted and
may be exercised, only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, this Agreement shall be
deemed amended to the extent necessary to conform to such laws, rules and
regulations.
5.8. Restrictions on Transfer of Shares
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(a) There can be no valid transfer (as hereinafter defined) of any
shares of stock purchased on exercise of the Option, or any interest in such
shares, by any holder of such shares or interests unless such transfer is solely
for cash consideration and is made in compliance with the following provisions:
(i) Before there can be a valid transfer of any shares or any
interest therein, the record holder of the shares to be transferred (the
"Offered Shares') shall give written notice (by registered or certified
mail) to the Company. Such notice shall specify (i) the bona fide intent
of the record holder of the Offered Shares (hereinafter referred to as the
"Offeror") to sell or otherwise transfer the Offered Shares to a bona fide
third-party transferee (ii) the identity of the proposed transferee, (iii)
the number of Offered Shares to be transferred to the proposed transferee,
(iv) the cash price offered for the Offered Shares by the proposed
transferee (the "Offered Price") and (v) the other terms and conditions of
the proposed transfer. The date such notice is mailed shall be hereinafter
referred to as the "notice date" and the record holder of the Offered
Shares shall be hereinafter referred to as the "Offeror."
(ii) For a period of thirty (30) calendar days after the notice
date, the Company shall have the option to purchase all (but not less than
all) of the Offered Shares at the purchase price and on the terms set forth
in subsection (a)(iii) of this Section 5.8. This option shall be
exercisable by the Company by mailing (by registered or certified mail)
written notice of exercise to the Offeror prior to the end of said thirty
(30) days.
(iii) The price at which the Company may purchase the Offered
Shares pursuant to the exercise of such option shall be (A) if the notice
date is prior to the date of the Initial Public Offering, the Offered Price
(as set forth in the notice required under subsection (a)(i) of this
Section 5.8), and (B) if the notice date is after the date of the Initial
Public Offering, the fair market value of the Offered Shares on the notice
date. The Company's notice of exercise of such option shall be accompanied
by full payment for the Offered Shares and, upon such payment by the
Company, the Company shall acquire full right, title and interest to all of
the Offered Shares.
(iv) If, and only if, the option given pursuant to subsection
(a)(ii) of this Section 5.8 is not exercised, the transfer proposed in the
notice given pursuant to subsection (a)(i) of this Section 5.8 may take
place; provided, however, that such transfer must, in all respects, be
exactly as proposed in said notice except that such transfer may not take
place either before the tenth (10th) calendar day after the expiration of
said thirty-day option exercise period or after the ninetieth (90th)
calendar day after the
expiration of said thirty-day option exercise period, and if such transfer
has not taken place prior to said ninetieth (90th) day, such transfer may
not take place without once again complying with subsection (a) of this
Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale,
encumbrance, pledge, gift or other form of disposition or transfer of shares of
the Company's stock or any legal or equitable interest therein; provided,
however, that the term "transfer" does not include a transfer of such shares or
interests by will or by the applicable laws of descent and distribution or a
gift of such shares if the transferee or donee agrees to be bound by the
provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of
the Option shall be transferred on the Company's books nor shall the Company
recognize any such transfer of any such shares or any interest therein unless
and until all applicable provisions of this Section 5.8 have been compiled with
in all respects. The certificates of stock evidencing shares of stock purchased
on exercise of the Option shall bear an appropriate legend referring to the
transfer restrictions imposed by this Section 5.8.
5.9. Lock-up in Event of Initial Public Offering
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The Optionee agrees that, during a period of 180 days from the date of
the Initial Public Offering, Optionee will not, without the prior written
consent of the underwriter(s) of the Initial Public Offering, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of or transfer, any shares of Common Stock issuable upon exercise of the
Option.
5.10 Dispute Resolution
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Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, that cannot be resolved between the parties in a timely
manner shall be resolved by binding arbitration before a single neutral
arbitrator in San Diego, California. The arbitrator shall be selected from the
American Arbitration Association through its procedures. All rules governing
the arbitration shall be the rules as set forth by the American Arbitration
Association. The arbitrator is bound to rule only on whether or not there has
been a violation of the terms of this Agreement and to render an award, if any,
that is consistent with the terms of this Agreement. Neither party to this
Agreement is entitled to any legal recourse or rights or remedies other than
those provided within this Agreement. Each party will bear one-half of the cost
of the arbitration filing and hearing fees, and the cost of the arbitrator.
Each party shall be responsible for its own attorneys' fees, unless otherwise
decided by the arbitrator.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
By: ______________________________
President
By: ______________________________
Secretary
_______________________________
Optionee
_______________________________
_______________________________
Address
Optionee's Taxpayer
Identification Number:
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