Exhibit 10.2
BUSINESS DEVELOPMENT SOLUTIONS,
INC.
2009 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT [PRC
RESIDENTS]
Unless
otherwise defined herein, the terms in this Stock Option Agreement
(the “ Option Agreement ”) have
the same meanings as defined in the Business Development Solutions,
Inc. 2009 Equity Incentive Plan (the “
Plan ”).
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I.
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NOTICE OF STOCK OPTION
GRANT
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Optionee:
Address:
You
have been granted an Option to purchase Common Stock of the
Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
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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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[No less than
fair market value at grant date]
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Total Number
of Shares Granted:
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Total
Exercise Price:
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Type of
Option:
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[
Nonstatutory Stock Option (unless granted to
an
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employee
subject to U.S. tax, then could be a ISO)]
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Expiration
Date:
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Ten (10) years
after Grant Date
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Vesting
Schedule:
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Termination
Period:
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To the
extent vested, this Option will be exercisable for three (3) months
after Optionee ceases to be a Service Provider, unless termination
is due to Optionee’s death or Disability, in which case this
Option will be exercisable for twelve (12) months after Optionee
ceases to be a Service Provider. Notwithstanding the foregoing
sentence, in no event may this Option be exercised after any
termination of the Optionee as a Service Provider for Cause or
after the Expiration Date as provided above and this Option may be
subject to earlier termination as provided in the Plan.
“ Cause ” has
the meaning ascribed to such term or words of similar import in
Optionee’s written employment or service contract with the
Company or its Affiliate and, in the absence of such agreement or
definition, means Optionee’s (i) conviction of, or plea of
nolo contendere to, a felony or any other crime involving moral
turpitude; (ii) fraud on or misappropriation of any funds or
property of the Company or any of its Affiliates, customer or
vendor; (iii) personal dishonesty, incompetence, willful
misconduct, willful violation of any law, rule or regulation (other
than minor traffic violations or similar offenses), or breach of
fiduciary duty which involves personal profit; (iv) willful
misconduct in connection with Optionee’s duties or willful
failure to perform Optionee’s responsibilities in the best
interests of the Company or any of its Affiliates; (v) illegal use
or distribution of drugs; (vi) violation of any rule, regulation,
procedure or policy of the Company or any of its Affiliates; or
(vii) breach of any provision of any employment, non-disclosure,
non-competition, non-solicitation or other similar agreement
executed by Optionee for the benefit of the Company or any of its
Affiliates, all as determined by the board of directors of the
Company or its Affiliate (as the case may be), which determination
will be conclusive.
“ Disability ”
means, (i) for purposes of an ISO, means total and permanent
disability as defined in Section 22(e)(3) of the Code; and (ii)
other than for purposes of an ISO, a medically determinable
physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not
less than 12 months, and that either (1) renders an Optionee unable
to engage in any substantial gainful activity or (2) results in an
Optionee receiving income replacement benefits for a period of not
less than three months under an employee accident and health plan
covering the Participant.
1.
Grant of Option . The Administrator grants to the Optionee
named in the Notice of Stock Option Grant in Part I of this
Option Agreement, an Option to purchase the number of Shares set
forth in the Notice of Stock Option Grant, at the exercise price
per Share set forth in the Notice of Stock Option Grant (the
“ Exercise Price ”), and subject
to the terms and conditions of the Plan, which is incorporated
herein by reference. In the event of a conflict between the terms
and conditions of the Plan and this Option Agreement, the terms and
conditions of the Plan prevail.
If designated in the Notice
of Stock Option Grant as an Incentive Stock Option, this Option is
intended to qualify as an Incentive Stock Option as defined in
Section 422 of the Code. Nevertheless, to the extent that it
exceeds the $100,000 rule of Section 422(d) of the Code, this
Option will be treated as a Nonstatutory Stock Option.
2.
Exercise of Option .
(a) Right to Exercise . This
Option is exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Stock Option Grant and
with the applicable provisions of the Plan and this Option
Agreement.
(b) Method of Exercise .
This Option is exercisable by (i) delivery of an exercise notice in
the form attached as Exhibit A (the “
Exercise Notice ”), or in a manner and
pursuant to procedures as the Administrator may determine, which
will state the election to exercise the Option, the number of
Shares with respect to which the Option is being exercised, and
other representations and agreements as may be required by the
Company and (ii) paying the Company in full the aggregate Exercise
Price as to all Shares being acquired, together with any applicable
tax withholding.
This Option will be deemed to be exercised upon receipt by the
Company of a fully executed Exercise Notice accompanied by the
aggregate Exercise Price, together with any applicable tax
withholding.
No Shares will be issued pursuant to the exercise of an Option
unless the issuance and exercise of Shares complies with Applicable
Laws. Assuming compliance, for income tax purposes the Shares will
be considered transferred to the Optionee on the date on which the
Option is exercised with respect to the Shares.
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3. Method of Payment . The aggregate
Exercise Price may be paid by any of the following, or a
combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
(c) promissory
note;
(d) other Shares, provided
Shares have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Shares as to which said Option
will be exercised;
(e) by asking the Company to
withhold Shares from the total Shares to be delivered upon exercise
equal to the number of Shares having a value equal to the aggregate
Exercise Price of the Shares being acquired;
(f) any combination of the
foregoing methods of payment; or
(g) such other consideration
and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws.
4.
Restrictions on Exercise . This Option may not be exercised
(a) until such time as the Plan has been approved by the
stockholders of the Company, or (b) if the issuance of such Shares
upon such exercise or the method of payment of consideration for
such shares would constitute a violation of any Applicable Laws.
The Company will be relieved of any liability with respect to any
delayed issuance of shares or its failure to issue shares if such
delay or failure is necessary to comply with Applicable
Laws.
5.
Non-Transferability of Option . This Option may not be
transferred in any manner otherwise than by will or by the laws of
descent or distribution or, upon notice to and consent of the
Company, to family members (as defined in the Plan), and may be
exercised only by Optionee or Designated Beneficiary. The terms of
the Plan and this Option Agreement are binding upon the executors,
administrators, heirs, successors and assigns of the
Optionee.
6.
Term of Option . This Option may be exercised only within
the term set out in the Notice of Stock Option Grant, and may be
exercised during the term only in accordance with the Plan and the
terms of this Option Agreement.
7.
No Rights as Stockholder . Until the issuance of the Shares
(as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a stockholder
exists with respect to the Shares, notwithstanding the exercise of
the Option. Subject to the requirements of Section 8 and
Section 11 below, the Shares will be issued to the Optionee
as soon as practicable after the Option is exercised in accordance
with the Option Agreement. No adjustment will be made for a
dividend or other right for which the record date is prior to the
date of issuance except as provided in the Plan
8.
Tax Obligations .
(a) Withholding
Taxes . Optionee agrees to arrange for the satisfaction of all
national, federal, provincial, state and local taxes (including
income and employment taxes) required by Applicable Laws to be
withheld with respect to the grant and exercise of the Option.
Optionee acknowledges and agrees that the Company may refuse to
honor the exercise and refuse to deliver the Shares if withholding
amounts are not delivered at the time of exercise. In this regard,
the Optionee authorizes the Company or his/her actual employer to
withhold all applicable tax withholding legally payable by the
Optionee from the Optionee’s wages or other cash compensation
payable to the Optionee by the Company or his/her employer or from
any equivalent cash payment received upon exercise of the Option.
Alternatively, the Company or the employer may permit the Optionee
to satisfy such withholding or payment on account obligations, in
whole or in part (without limitation) by paying cash. In addition,
if permissible under local law, the Company or the employer, in
their sole discretion and pursuant to such procedures as they may
specify from time to time, may (a) withhold otherwise deliverable
Shares having a Fair Market Value equal to the minimum amount
required to be withheld, and/or (b) sell or arrange for the sale of
a sufficient number of such Shares otherwise deliverable to the
Optionee through such means as the Company may determine in its
sole discretion (whether through a broker or otherwise) equal to
the amount required to be withheld. The Optionee shall pay to the
Company or to the employer any amount of tax that the Company or
the employer may be required to withhold as a result of the grant,
vesting or exercise of the Option that cannot be satisfied by the
means previously described.
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(b) Notice of
Disqualifying Disposition of ISO Shares . If the Option granted
to Optionee is an ISO, and if Optionee sells or otherwise disposes
of any of the Shares acquired pursuant to the ISO on or before the
later of (i) the date two (2) years after the Grant Date, or (ii)
the date one (1) year after the date of exercise, the Optionee must
immediately notify the Company of the disposition in writing.
Optionee agrees that Optionee may be subject to income tax
withholding by the Company on the compensation income recognized by
the Optionee.
(c) Code
Section 409A. Under Section 409A of the Code, an Option that
vests after December 31, 2004 that was granted with a per Share
exercise price that is determined by the Internal Revenue Service
(the “ IRS ”) to be less than the
Fair Market Value of a Share on the Grant Date (a “discount
option”) may be considered deferred compensation. For an
Optionee subject to U.S. income tax, an Option that is a discount
option may result in (i) income recognition by the Optionee prior
to the exercise of the Option, (ii) an additional twenty percent
(20%) tax, and (iii) potential penalty and interest charges.
Optionee acknowledges that the Company cannot and has not
guaranteed that the IRS will agree that the per Share Exercise
Price of this Option equals or exceeds Fair Market Value of a Share
on the Grant Date in a later examination. Optionee agrees that if
the IRS determines that the Option was granted with a per Share
exercise price that was less than the Fair Market Value of
a