**Exhibit 10.36**

 

NetworkEngines, Inc.

 

NonstatutoryStock Option AgreementGranted Under 2009 Incentive Plan

 

# 1.             Grantof Option.

 

This agreement evidences the grant by Network Engines, Inc., aDelaware corporation (the “Company”), on           ,20     (the “Grant Date”)to                  ,an [employee], [consultant], [director] of the Company (the “Participant”), ofan option to purchase, in whole or in part, on the terms provided herein and inthe Company’s 2009 Incentive Plan (the “Plan”), a total of                  shares (the “Shares”) of common stock, $0.01****parvalue per share, of the Company (“Common Stock”) at$           per Share.  Unless earlier terminated, this option shallexpire at 5:00 p.m., Eastern time, on              ****(the “Final Exercise Date”).

 

It is intended that the option evidenced by this agreement shall not bean incentive stock option as defined in Section 422 of the InternalRevenue Code of 1986, as amended, and any regulations promulgated thereunder(the “Code”).  Except as otherwiseindicated by the context, the term “Participant”, as used in this option, shallbe deemed to include any person who acquires the right to exercise this optionvalidly under its terms.

 

2.             Vesting Schedule.

 

This option will become exercisable (“vest”) as to [25% of the original number of Shares on each anniversary of the Grant date until the fourthanniversary of the Grant Date, in accordance with Section 6(a) of thePlan] [100% of the original number of Shares on the first anniversary of the GrantDate, in accordance with Section 6(b) of the Plan] [25% of theoriginal number of Shares on the first anniversary of the employmentstart date and as to an additional 6.25%of the original number of Shares at the end of each successive****three-month period following the firstanniversary of the employment start date until the fourth anniversary of theemployment start date][6.25%of the original number of Shares at the end of each successive three-monthperiod following the Grant Date until the fourth anniversary of the GrantDate].  This option shall expire upon,and will not be exercisable after, the Final Exercise Date.

 

The right of exercise shall be cumulative so that to the extent theoption is not exercised in any period to the maximum extent permissible itshall continue to be exercisable, in whole or in part, with respect to allShares for which it is vested until the earlier of the Final Exercise Date orthe termination of this option under Section 3 hereof or the Plan.

 

3.             Exercise ofOption.

 

(a)           Form ofExercise.  Each election to exercisethis option shall be delivered in the manner or in the form directed by theCompany, and accompanied by payment in full in the manner provided in thePlan.  The Participant may purchase lessthan the number of shares covered hereby, provided that no partial exercise ofthis option may be for any fractional share.

 

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(b)           ContinuousRelationship with the Company Required. Except as otherwise provided in this Section 3, this option may notbe exercised unless the Participant, at the time he or she exercises thisoption, is, and has been at all times since the Grant Date, an employee,officer or director of, or consultant or advisor to, the Company or any otherentity the employees, officers, directors, consultants, or advisors of whichare eligible to receive option grants under the Plan (an “Eligible Participant”).

 

(c)           Terminationof Relationship with the Company.  Ifthe Participant ceases to be an Eligible Participant for any reason, then,except as provided in paragraphs (d) and (e) below, the right toexercise this option shall terminate****three monthsafter such cessation or such other period of time as may be determined by theBoard (but in no event after the Final Exercise Date), providedthatthis option shall be exercisable only to the extent that the Participant wasentitled to exercise this option on the date of such cessation.  Notwithstanding the foregoing, if theParticipant, prior to the Final Exercise Date, violates the non-competition orconfidentiality provisions of any employment contract, confidentiality andnondisclosure agreement or other agreement between the Participant and theCompany, the right to exercise this option shall terminate immediately uponwritten notice to the Participant from the Company describing such violation.

 

(d)           ExercisePeriod Upon Death or Disability.  Ifthe Participant dies or becomes disabled (within the meaning of Section 22(e)(3) ofthe Code) prior to the Final Exercise Date while he or she is an EligibleParticipant and the Company has not terminated such relationship for “cause” asspecified in paragraph (e) below, this option shall be exercisable, withinthe period of one year following the date of death or disability of theParticipant, by the Participant (or in the case of death by an authorizedtransferee), providedthat this option shall be exercisable onlyto the extent that this option was exercisable by the Participant on the dateof his or her death or disability, and further provided that this option shallnot be exercisable after the Final Exercise Date.

 

(e)           Terminationfor Cause.  If, prior to the FinalExercise Date, the Participant’s employment or other relationship with theCompany is terminated by the Company for Cause (as defined below), the right toexercise this option shall terminate immediately upon the effective date ofsuch termination of employment or other relationship.  If the Participant is party to an employment,consulting or severance agreement with the Company that contains a definitionof “cause” for termination of employment or other relationship, “Cause” shallhave the meaning ascribed to such term in such agreement.  Otherwise, “Cause” shall mean willfulmisconduct by the Participant or willful failure by the Participant to performhis or her responsibilities to the Company (including, without limitation,breach by the Participant of any provision of any employment, consulting,advisory, nondisclosure, non-competition or other similar agreement between theParticipant and the Company), as determined by the Company, which determinationshall be conclusive.  The Participant’semployment or other relationship shall be considered to have been terminatedfor “Cause” if the Company determines, within 30 days after the Participant’sresignation, that termination for Cause was warranted.

 

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4.             Withholding.

 

No Shares will be issued pursuant to the exercise of this option unlessand until the Participant pays to the Company, or makes provision satisfactoryto the Company for payment of, any federal, state or local withholding taxesrequired by law to be withheld in respect of this option.

 

5.             TransferRestrictions.

 

This option may not be sold, assigned, transferred, pledged orotherwise encumbered by the Participant, either voluntarily or by operation oflaw, except by will or the laws of descent and distribution, and, during thelifetime of the Participant, this option shall be exercisable only by theParticipant.

 

6.             Provisions ofthe Plan.

 

This option is subject to the provisions of the Plan (including theprovisions relating to amendments to the Plan), a copy of which is furnished tothe Participant with this option.

 

IN WITNESS WHEREOF, the Company has caused this option to be executedunder its corporate seal by its duly authorized officer.  This option shall take effect as a sealedinstrument.

 

 
|   | Network  Engines, Inc. |
|--------|-----------------------------|
|   |                        |
|   |                        |
|   | By:                         |   |
|   |                        |   |
|   |                        | Name: |   |
|   |                        | Title: |   |

 

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PARTICIPANT’SACCEPTANCE

 

The undersigned hereby accepts the foregoing option and agrees to theterms and conditions thereof.  Theundersigned hereby acknowledges receipt of a copy of the Company’s 2009Incentive Plan.

 
|   | PARTICIPANT: |
|--------|--------------|
|   |         |
|   |         |
|   |         |
|   | Address:     |   |
|   |         |   |

 

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