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Exhibit 10.2
INCENTIVE STOCK OPTION AGREEMENT
UBID.COM HOLDINGS, INC.
2005 EQUITY INCENTIVE PLAN
THIS
AGREEMENT, made effective as of this 15th day of May, 2008,
(the “Issue Date”) by and between Ubid.com
Holdings, Inc., a Delaware corporation (the
“Company”), and Glenn R. Weisberger
(“Participant”).
WITNESSETH:
WHEREAS,
Participant on the date hereof is an employee and of the
Company; and
WHEREAS,
the Company wishes to grant an incentive stock option to
Participant to purchase shares of the Company’s Common
Stock pursuant to the Company’s 2005 Equity Incentive
Plan (the “Plan”); and
WHEREAS,
the Administrator of the Plan has authorized the grant of an
incentive stock option to Participant and has determined that,
as of the effective date of this Agreement, the fair market
value of the Company’s Common Stock is
$0.90
per share;
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as
follows:
1.
Grant of Option .
The Company hereby grants to Participant on the date set forth
above (the “Date of Grant”), the right and option (the
“Option”) to purchase all or portions of an aggregate
of Two Hundred Thousand (200,000) shares of Common Stock at a per
share price of $0.90 the terms and conditions set forth herein, and
subject to adjustment pursuant to Section 12 of the Plan. This
Option is intended to be an incentive stock option within the
meaning of Section 422, or any successor provision, of the Internal
Revenue Code of 1986, as amended (the “Code”), and the
regulations thereunder, to the extent permitted under Code Section
422(d).
2.
Duration and Exercisability .
a.
General .
The term during which this Option may be exercised shall terminate
on May 15, 2018 (the “Expiration Date”), except as
otherwise provided in Paragraphs 2(b) through 2(f) below. This
Option shall become exercisable according to the following
schedule:
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Vesting Date
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Number of Shares
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May
15, 2009
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50,000
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May
15, 2010
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50,000
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May
15, 2011
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50,000
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May
15, 2012
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50,000
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Once
the Option becomes exercisable to the extent of any of the
aggregate number of shares specified in Paragraph 1,
Participant may continue to exercise this Option with respect
to such shares under the terms and conditions of this
Agreement until the termination of the Option as provided
herein. If Participant does not purchase upon an exercise of
this Option the full number of shares which Participant is
then entitled to purchase, Participant may purchase upon any
subsequent exercise prior to this Option’s termination
such previously unpurchased shares in addition to those
Participant is otherwise entitled to purchase.
b.
Termination of Employment (other than Termination for Cause,
Disability or Death) .
If Participant’s employment with the Company or any Affiliate
is terminated for any reason other than termination by the Company
for “cause,” disability, or death, this Option shall
completely terminate on the earlier of (i) the close of business on
the three
- month
anniversary date of such termination of employment, and
(ii) the Expiration Date of this Option stated in Paragraph
2(a) above. In such period following the termination of
Participant’s employment, this Option shall be exercisable
only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of employment, but had not
previously been exercised. To the extent this Option was not
exercisable upon such termination of employment, or if Participant
does not exercise the Option within the time specified in this
Paragraph 2(b), all rights of Participant under this Option shall
be forfeited.
c.
Termination of Employment for Cause
.
If Participant’s employment with the Company or any Affiliate
is terminated for “cause,” the unexercised portion of
this Option shall immediately expire, and all rights of Participant
under this Option shall be forfeited. Solely for purposes of this
Paragraph 2(c), “cause” shall mean (i)
the continued failure of the Participant to substantially perform
his material duties to and responsibilities for the Company (other
than any such failure resulting from a disability (as defined in
Code Section 22(e), or any successor provision)); (ii) the
conviction of, or plea of guilty or
nolo contendere to
a felony; or (iii) fraud,
dishonesty, competition with the Company, unauthorized use of any
of the Company’s or any Affiliate’s trade secrets or
confidential information, a
material breach of the Company’s policies or codes of
conduct, a willful or material breach of any agreement between the
Participant and the Company, including this Agreement, or gross
misconduct which is materially and demonstratively injurious to the
Company.
d.
Disability .
If Participant’s employment terminates because of disability
(as defined in Code Section 22(e), or any successor provision),
this Option shall terminate on the earlier of (i) the close of
business on the twelve
- month
anniversary date of such termination of employment, and
(ii) the Expiration Date of this Option stated in Paragraph
2(a) above. In such period following the termination of
Participant’s employment, this Option shall be exercisable
only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of employment, but had not
previously been exercised. To the extent this Option was not
exercisable upon such termination of employment, or if Participant
does not exercise the Option within the time specified in this
Paragraph 2(d), all rights of Participant under this Option shall
be forfeited.
e.
Death .
In the event of Participant’s death, this Option shall
terminate on the earliest of (i) the close of business on the
twelve
- month
anniversary date of such termination of employment, and
(ii) the Expiration Date of this Option stated in Paragraph
2(a) above. In such period following Participant’s death,
this Option shall be exercisable by the person or persons to whom
Participant’s rights under this Option shall have passed by
Participant’s will or by the laws of descent and distribution
only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of employment, but had not
previously been exercised. To the extent this Option was not
exercisable upon the date of Participant’s death, or if such
person or persons do not exercise this Option within the time
specified in this Paragraph 2(e), all rights under this Option
shall be forfeited.
f.
Change of Control .
Upon
a Change of Control (as defined below), this Option shall
immediately become fully vested. For
purposes of this Agreement, “Change of Control” means:
(A) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all,
of the assets of the Company other than any sale, lease, exchange
or other transfer to any company where the Company owns, directly
or indirectly, 100 percent of the outstanding voting securities of
such company after any such transfer; (B) any person or persons (as
such term is used in Section 13(d) of the Exchange Act of 1934, as
amended), other than the holders of voting securities of the
Company as of the Issue Date, shall acquire or become the
beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) whether directly, indirectly,
beneficially
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