Exhibit 10.10
STOCK OPTION
AGREEMENT
STOCK OPTION
AGREEMENT dated as of the Grant Date (as hereafter defined), by and
between SIRVA, Inc., a Delaware corporation (the “
Company ”), and the grantee whose name appears on the
signature page hereof (the “ Grantee
”).
W I T N
E S S E T H :
WHEREAS, to
motivate key employees, consultants and non-employee directors of
the Company and the Subsidiaries by providing them an ownership
interest in the Company, the Board of Directors of the Company (the
“ Board ”) has established, and the shareholders
of the Company have approved, the SIRVA, Inc. Amended and Restated
Omnibus Stock Incentive Plan, as the same may be amended from time
to time (the “ Plan ”); and
WHEREAS, pursuant
to the Plan, the Compensation Committee of the Board (the “
Committee ”) has authorized the grant to the Grantee
of non-qualified stock options to purchase the aggregate number of
shares of Common Stock listed on Schedule A hereto under the
heading “Total Number of Shares Subject to the Options”
(each, a “ Share ” and, collectively, the
“ Shares ”), at the exercise price per Share
listed on Schedule A hereto under the heading “Exercise
Price”; and
WHEREAS, the
Grantee and the Company desire to enter into an agreement to
evidence and confirm the grant of such stock options on the terms
and conditions set forth herein.
NOW, THEREFORE, to
evidence the stock options so granted, and to set forth the terms
and conditions governing such stock options, the Company and the
Grantee hereby agree as follows:
1.
Certain Definitions . Capitalized terms used herein without
definition shall have the meanings set forth in the Plan. As used
in this Agreement, the following terms shall have the following
meanings:
(a)
“ Aggregate Exercise Price ” shall have the
meaning set forth in Section 6 hereof.
(b)
“ Alternative Option ” shall have the meaning
set forth in Section 9(c) hereof.
(c)
“ Business ” shall have the meaning set forth in
Section 4(c) hereof.
(d)
“ Covered Options ” shall have the meaning set
forth in Section 4(b) hereof.
(e)
“ Exercise Date ” shall have the meaning set
forth in Section 6 hereof.
(f)
“ Exercise Price ” shall mean, with respect to
each Share covered by an Option, the exercise price at which the
Grantee may purchase such Share specified in Section 2(b)
hereof.
(g)
“ Exercise Shares ” shall have the meaning set
forth in Section 6 hereof.
(h)
“ Financial Gain ” shall have the meaning set
forth in Section 4(c) hereof.
(i)
“ Grant Date ” shall mean the date specified on
Schedule A hereto under the heading “Grant Date”, which
is the date on which the Options are granted to the Grantee.
(j)
“ Grantee ” shall have the meaning set forth in
the introductory paragraph hereto.
(k)
“ Normal Expiration Date ” shall mean the
seventh anniversary of the date hereof.
(l)
“ One-Year Date ” shall have the meaning set
forth in Section 4(c) hereof.
(m)
“ Option ” shall mean the right granted to the
Grantee hereunder to purchase one share of Common Stock for a
purchase price equal to the Exercise Price and otherwise subject to
the terms and conditions of this Agreement.
(n)
“ Securities Act ” shall mean the U.S.
Securities Act of 1933, as amended.
(o)
“ Share ” or “ Shares ” shall
have the meaning specified in the preambles hereto.
(p)
“ Sufficient Shares ” shall mean the smallest
number of Shares which, when sold, will produce an amount at least
equal to the relevant Tax Liability (after deduction of brokerage
and any other charges or taxes on the sale).
(q)
“ Taxable Event ” means any of the following
events which may give rise to liabilities for income tax, with or
without corresponding liabilities for national insurance
contributions (or their equivalents in any jurisdiction):
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(i)
the exercise of the Option; or
(ii)
any other taxable event in relation to the Option; or
(iii)
the sale of Shares acquired on exercise of the Option; or
(iv)
any other taxable event in relation to shares acquired on exercise
of the Option.
(r)
“ Tax Liability ” means the total of:
(i)
any PAYE income tax and primary class 1 (employee) national
insurance contributions (or any similar liability to withhold
amounts in respect of income tax or social security contribution in
any jurisdiction) that the Company or any employer (or former
employer) of the Grantee is liable to account for as a result of
any Taxable Event; and
(ii)
if such amounts may be lawfully recovered from the Grantee, any
secondary class 1 (employer) national insurance contributions (or
any similar liability for social security contribution in any
jurisdiction) that the Company or any employer (or former employer)
of the Grantee is liable to pay as a result of any Taxable
Event.
(s)
“ Wrongful Conduct ” shall have the meaning set
forth in Section 4(c) hereof.
(t)
“ Wrongful Conduct Period ” shall have the
meaning set forth in Section 4(c) hereof.
2.
Grant of Options .
(a)
Confirmation of Grant . The Company hereby evidences and
confirms its grant to the Grantee, effective as of the date hereof,
of Options to purchase the number of Shares listed on Schedule A
hereto under the heading “Total Number of Shares Subject to
the Options”. The Options are not intended to be incentive
stock options under the U.S. Internal Revenue Code of 1986, as
amended. This Agreement is subordinate to, and the terms and
conditions of the Options granted hereunder are subject to, the
terms and conditions of the Plan, which are incorporated by
reference herein. If there is any inconsistency between the terms
hereof and the terms of the Plan, the terms of the Plan shall
govern.
(b)
Exercise Price . Each Share covered by an Option shall have
the Exercise Price specified on Schedule A hereto under the heading
“Exercise Price”, subject to adjustment as provided in
the Plan. As of the date hereof, the
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Exercise Price is not less than the fair market
value of one share of Common Stock as determined under section 409A
of the Code.
3.
Exercisability .
(a)
Options . Except as otherwise provided in Section 7(a) of
this Agreement and subject to the continuous employment of the
Grantee with the Company or one or more of the Subsidiaries until
the applicable vesting date, the Options shall become vested as
specified on Schedule A hereto under the heading “Vesting
Schedule”.
(b)
Conditions . The Committee, in its sole discretion, may
accelerate the vesting or exercisability of any Option, all Options
or any class of Options, at any time and from time to time. Shares
covered by vested Options may, subject to the provisions hereof, be
purchased at any time and from time to time on or after the date
the corresponding Options become vested in accordance with the
provisions of this Section 3 until the date one day prior to the
date on which such Options terminate.
4.
Termination of Options .
(a)
Normal Expiration Date . Subject to Sections 4 and 7, the
Options shall terminate and be canceled on the Normal Expiration
Date.
(b)
Early Termination .
(i)
Except as provided in this Section 4 and Section 7, if the
Grantee’s employment with the Company or any Subsidiary is
voluntarily or involuntarily terminated for any reason prior to the
Normal Expiration Date, any Options held by the Grantee that have
not become vested on or before the effective date of such
termination of employment shall terminate and be canceled
immediately upon such termination of employment. For purposes of
the Plan, all Options held by the Grantee on the effective date of
such termination of employment that shall have become vested on or
before such effective date shall be referred to as the “
Covered Options .”
(ii)
Notwithstanding anything to the contrary contained herein, but
subject to the provisions of Section 7, following a termination of
Grantee’s employment by reason of such Grantee’s death
or Disability, all of the Grantee’s Options (whether or not
then vested or exercisable) shall become immediately exercisable in
full and shall remain exercisable solely until the twelve-month
anniversary of the date of such termination of employment (even if
such anniversary falls after the Normal Expiration
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Date), and shall automatically terminate and be
canceled upon the expiration of such period.
(iii)
Subject to the provisions of Section 7, following a termination of
Grantee’s employment by reason of the Grantee’s
Retirement, the Covered Options shall remain exercisable until the
first to occur of ( A ) the twelve-month anniversary
following the date of such Grantee’s Retirement, or (
B ) the Normal Expiration Date; provided that, if the
Grantee agrees to be bound by certain restrictive covenants,
including customary non-competition, non-solicitation,
non-disclosure and non-disparagement covenants, then during the
three-year period following the Grantee’s Retirement, the
Covered Options shall remain exercisable until the earlier of (1)
the third anniversary of the Grantee’s Retirement or, if the
Grantee dies prior to the third anniversary of his Retirement, the
twelve-month anniversary following the date of the Grantee’s
death and (2) the Normal Expiration Date; and any Options that are
not Covered Options shall continue to become exercisable in
accordance with their respective terms during such three-year
period as if the Grantee’s employment had not terminated due
to his Retirement, and shall automatically terminate and be
canceled upon the earlier of ( x ) the expiration of
whichever of such periods is applicable and ( y ) the breach
by the Grantee of any of such covenants.
(iv)
Subject to the provisions of Section 7, if the Grantee’s
employment is terminated for any reason other than ( x )
Retirement, ( y ) death or Disability or ( z ) for
Cause, the Covered Options shall remain exercisable solely until
the first to occur of ( A ) the 60th day following the date
of such termination and ( B ) the Normal Expiration Date,
and shall automatically terminate and be canceled upon the
expiration of whichever of such periods is applicable.
(v)
Notwithstanding anything else contained in this Agreement, if the
Grantee’s employment with the Company or any Subsidiary is
terminated for Cause (or if, following the date of termination of
the Grantee’s employment for any reason, the Committee
determines that circumstances exist such that the Grantee’s
employment could have been terminated for Cause), all Options
(whether or not then vested or exercisable) shall automatically
terminate and be canceled immediately upon such termination.
(c)
Forfeiture . By accepting these Options, the Grantee
acknowledges and agrees that the Options have been granted as an
incentive to the Grantee to remain employed by the Company and the
Subsidiaries, and to use his or her best
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efforts to enhance the value of the Company and
the Subsidiaries over the long-term. Accordingly, notwithstanding
anything contained in this Agreement to the contrary, if, (
A ) during the Grantee’s employment with the Company
or any Subsidiary, ( B ) during any post-termination option
exercise period, or ( C ) during the period ending one (1)
year after the expiration of any post-termination option exercise
period (the date such period expires, the “ One-Year
Date ”), the Grantee, except with the prior written
consent of the Committee,
(i) directly or indirectly, owns any
interest in, operates, joins, controls or participates as a
partner, director, principal, officer, or agent of, enters into the
employment of, acts as a consultant to, or performs any services
for any entity which has operations that compete with any business
of the Company and the Subsidiaries in which the Grantee was
employed (in any capacity) in any jurisdiction in which such
business is engaged, or in which any of the Company and the
Subsidiaries have documented plans to become engaged of which the
Grantee has knowledge at the time of the Grantee’s
termination of employment (the “ Business ”),
except where ( x ) the Grantee’s interest or
association with such entity is unrelated to the Business, (
y ) such entity’s gross revenue from the Business is
less than 10% of such entity’s total gross revenue, and (
z ) the Grantee’s interest is directly or indirectly
less than two percent (2%) of the Business;
(ii) directly or indirectly, solicits for
employment, employs or otherwise interferes with the relationship
of the Company or any of its Affiliates with any natural person
throughout the world who is or was employed by or otherwise engaged
to perform services for the Company or any of its Affiliates at any
time during the Grantee’s employment with the Company or any
Subsidiary (in the case of any such activity during such time) or
during the twelve-month period preceding such solicitation,
employment or interference (in the case of any such activity after
the termination of the Grantee’s employment); or
(iii) directly or indirectly, discloses
or misuses any confidential information of the Company or any of
its Affiliate (such activities to be collectively referred to as
“ Wrongful Conduct ”), then
all Options granted
hereunder, to the extent they remain unexercised, shall
automatically terminate and be canceled immediately as of the date
on which the Grantee first engaged in such Wrongful Conduct and, in
such case and in the case of the Grantee’s termination for
Cause, the Grantee shall pay to the Company in cash any Financial
Gain the Grantee realized from exercising all or a portion of the
Options granted hereunder within the period commencing six (6)
months prior to the termination of the Grantee’s employment
and ending on the One-Year Date (such period, the “
Wrongful Conduct Period ”). For
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purposes of this
Section 4(c), “ Financial Gain ” shall equal, on
each date of exercise during the Wrongful Conduct Period, the
excess of ( x ) the greater of ( I ) the Fair Market
Value on the date of exercise and ( II ) the Fair Market
Value on the date of sale of the Exercise Shares, over ( y )
the Exercise Price, multiplied by the number of shares of Common
Stock pu
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