Nonstatutory Stock Option Agreement - NaviSite inc. and James F. Moore
NAVISITE, INC.
--------------
Nonstatutory Stock Option Agreement
-----------------------------------
1. Grant of Option.
---------------
This agreement evidences the grant by NaviSite, Inc., a Delaware corporation
(the "Company"), on February 23, 2001 (the "Grant Date") to James Moore, a
director of the Company (the "Participant"), of an option to purchase, in whole
or in part, on the terms provided herein, a total of 10,000 shares (the
"Shares") of common stock, $0.01 par value per share, of the Company ("Common
Stock") at $1.875 per Share. Unless earlier terminated, this option shall expire
on February 23, 2011 (the "Final Exercise Date").
It is intended that the option evidenced by this agreement shall not be an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the "Code").
Except as otherwise indicated by the context, the term "Participant", as used in
this option, shall be deemed to include any person who acquires the right to
exercise this option validly under its terms.
2. Vesting Schedule.
----------------
This option will become exercisable ("vest") in its entirety on the Grant
Date.
To the extent the option is not exercised at any time to the maximum extent
permissible, it shall continue to be exercisable, in whole or in part, with
respect to all shares until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof.
3. Exercise of Option.
------------------
(a) Form of Exercise. Each election to exercise this option shall be in
writing, signed by the Participant, and received by the Company at its principal
office, accompanied by this agreement, and payment in full in the manner
provided in Section 3(b) hereof. The Participant may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(b) Payment Upon Exercise. Common Stock purchased upon the exercise of this
---------------------
option will be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) by delivery of an irrevocable and unconditional undertaking by a
credit- worthy broker to deliver promptly to the Company sufficient funds to pay
the exercise price, or delivery by the Participant to the Company of a copy of
irrevocable and unconditional instructions to a credit-worthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price;
<PAGE>
(3) by delivery of shares of Common Stock owned by the Participant
valued at their fair market value as determined by the Board of Directors in
good faith, which Common Stock was owned by the Participant at least six months
prior to such delivery;
(4) by delivery of a promissory note of the Participant to the Company
on terms determined by the Board of Directors;
(5) by payment of such other lawful consideration as the Board of
Directors may determine; or
(6) any combination of the above permitted forms of payment.
(c) Exercise Period Upon Death or Disability. If the Participant dies or
----------------------------------------
becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to
the Final Exercise Date, this option shall be exercisable, within the period of
one year following the date of death or disability of the Participant, by the
Participant (or in the case of death by an authorized transferee), provided that
this option shall not be exercisable after the Final Exercise Date.
4. Adjustments for Changes in Common Stock and Certain Other Events
----------------------------------------------------------------
(a) Changes in Capitalization. In the event of any stock split, reverse
-------------------------
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, the number and class of securities and exercise price per share
of outstanding portions of this option shall be appropriately adjusted by the
Company to the extent the Board shall determine, in good faith, that such an
adjustment is necessary and appropriate. If this Section 4(a) applies and
Section 4(c) also applies to any event, Section 4(c) shall be applicable to such
event, and this Section 4(a) shall not be applicable.
(b) Liquidation or Dissolution. In the event of a proposed liquidation or
--------------------------
dissolution of the Company, the Board shall upon written notice to the
Participant provide that all unexercised portions of this option will terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date.
(c) Reorganization Events
---------------------
(1) Definition. A "Reorganization Event" shall mean: (a) any merger or
----------
consolidation of the Company with or into another entity as a result of which
all of the Common Stock of the Company is converted into or exchanged for the
right to receive cash, securities or other property or (b) any exchange of all
of the Common Stock of the Company for cash, securities or other property
pursuant to a share exchange transaction.
(2) Consequences of a Reorganization Event on Options. Upon the
-------------------------------------------------
occurrence of a Reorganization Event, or the execution by the Company of any
agreement with respect to a Reorganization Event, the Board shall provide that
all outstanding portions of this option shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof). For purposes hereof, the option shall be considered to be
assumed if, following consummation of the Reorganization Event, the option
confers the right to purchase,
-2-
<PAGE>
for each share of Common Stock subject to the option immediately prior to the
consummation of the Reorganization Event, the consideration (whether cash,
securities or other property) received as a result of the Reorganization Event
by holders of Common Stock for each share of Common Stock held immediately prior
to the consummation of the Reorganization Event (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding shares of Common Stock); provided, however, that if
the consideration received as a result of the Reorganization Event is not solely
common stock of the acquiring or succeeding corporation (or an affiliate
thereof), the Company may, with the consent of the acquiring or succeeding
corporation, provide for the consideration to be received upon the exercise of
options to consist solely of common stock of the acquiring or succeeding
corporation (or an affiliate thereof) equivalent in fair market value to the per
share consideration received by holders of outstanding shares of Common Stock as
a result of the Reorganization Event.
Notwithstanding the foregoing, if the acquiring or succeeding corporation
(or an affiliate thereof) does not agree to assume, or substitute for, such
option, then the Board shall, upon written notice to the Participants, provide
that all then unexercised portions of the option will terminate immediately
prior to the consummation of such Reorganization Event, except to the extent
exercised by the Participants before the consummation of such Reorganization
Event; provided, however, that in the event of a Reorganization Event under the
terms of which holders of Common Stock will receive upon consummation thereof a
cash payment for each share of Common Stock surrendered pursuant to such
Reorganization Event (the "Acquisition Price"), then the Board may instead
provide that all outstanding portions of the option shall terminate upon
consummation of such Reorganization Event and that the Participant shall
receive, in exchange therefor, a cash payment equal to the amount (if any) by
which (A) the Acquisition Price multiplied by the number of shares of Common
Stock subject to such outstanding portions of the option, exceeds (B) the
aggregate exercise price of such option.
5. Withholding.
-----------
No Shares will be issued pursuant to the exercise of this option unless and
until the Participant pays to the Company, or makes provision satisfactory to
the Company for payment of, any federal, state or local withholding taxes
required by law to be withheld in respect of this option.
6. Nontransferability of Option.
----------------------------
This option may not be sold, assigned, transferred, pledged or otherwise
encumbered by the Participant, either voluntarily or by operation of law, except
by will or the laws of descent and distribution, and, during the lifetime of the
Participant, this option shall be exercisable only by the Participant.
7. No Rights As Stockholder.
------------------------
No Participant or Designated Beneficiary (as defined below) shall have any
rights as a stockholder with respect to any shares of Common Stock to be
distributed with respect to this option until becoming the record holder of such
shares. Notwithstanding the foregoing, in the event the Company effects a split
of the Common Stock by means of a stock dividend and the
-3-
<PAGE>
exercise price of and the number of shares subject to such option are adjusted
as of the date of the distribution of the dividend (rather than as of the record
date for such dividend), then an optionee who exercises an option between the
record date and the distribution date for such stock dividend shall be entitled
to receive, on the distribution date, the stock dividend with respect to the
shares of Common Stock acquired upon such option exercise, notwithstanding the
fact that such shares were not outstanding as of the close of business on the
record date for such stock dividend. The Designated Beneficiary is the person or
entity who the Participant designates as beneficiary, in a manner determined by
the Board, to receive amounts due or exercise rights of the Participant in the
event of the Participant's death. In the absence of an effective designation by
a Participant, Designated Beneficiary shall mean the Participant's estate.
8. Governing Law.
-------------
The provisions of this option shall be governed by and interpreted in
accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law.
IN WITNESS WHEREOF, the Company has caused this option to be executed under
its corporate seal by its duly authorized officer. This option shall take effect
as a sealed instrument.
NAVISITE, INC.
Dated: February 23, 2001 By: /s/ Joel B. Rosen
------------------------------
Name: Joel B. Rosen
Title: Chief Executive Officer
-4-
<PAGE>
PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms
and conditions thereof.
PARTICIPANT:
/s/ James F. Moore
---------------------------
Name: James F. Moore
Address: Allston, MA
-5-