exv10w12






Exhibit 10.12




NON-QUALIFIED STOCK OPTION AGREEMENT

PURSUANT TO THE

TRUSTWAVE HOLDINGS, INC.

2011 CASH AND EQUITY INCENTIVE PLAN

* * * * *



Participant:                                                             



Grant Date:                                                             



Per Share Exercise Price: $_____



Number of Shares subject to this Option:                                                             




* * * * *




     THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “Agreement”), dated as of the
Grant Date specified above, is entered into by and between Trustwave Holdings, Inc., a corporation
organized in the State of Delaware (the “Company”), and the Participant specified above,
pursuant to the Trustwave Holdings, Inc. 2011 Cash and Equity Incentive Plan, as in effect and as
amended from time to time (the “Plan”), which is administered by the Committee; and



     WHEREAS, it has been determined under the Plan that it would be in the best interests of the
Company to grant the Non-Qualified Stock Option provided for herein to the Participant.



     NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth
and for other good and valuable consideration, the parties hereto hereby mutually covenant and
agree as follows:



          1. Incorporation By Reference; Plan Document Receipt. This Agreement is subject in
all respects to the terms and provisions of the Plan (including, without limitation, any amendments
thereto adopted at any time and from time to time unless such amendments are expressly intended not
to apply to the Award provided hereunder), all of which terms and provisions are made a part of and
incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized
term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan.
The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has
read the Plan carefully and fully understands its content. In the event of any conflict between
the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No
part of the Option granted hereby is intended to qualify as an “incentive stock option” under
Section 422 of the Code.




          2. Grant of Option. The Company hereby grants to the Participant, as of the Grant
Date specified above, a Non-Qualified Stock Option (this “Option”) to acquire from the
Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common
Stock specified above (the “Option Shares”). Except as otherwise provided by the






 









 







Plan, the Participant agrees and understands that nothing contained in this Agreement
provides, or is intended to provide, the Participant with any protection against potential future
dilution of the Participant’s interest in the Company for any reason. The Participant shall have
no rights as a stockholder with respect to any shares of Common Stock covered by the Option unless
and until the Participant has become the holder of record of such shares, and no adjustments shall
be made for dividends in cash or other property, distributions or other rights in respect of any
such shares, except as otherwise specifically provided for in the Plan or this Agreement.




          3. Vesting and Exercise.




          (a) Vesting. Subject to the provisions of Section 3(b) hereof, the Option shall vest
and become exercisable as follows, provided that the Participant has not incurred a Termination
prior to each such vesting date:




	 	 	 
	Vesting Date	 	Number of Shares
	[•]
	 	[•]





There shall be no proportionate or partial vesting in the periods prior to each vesting date and
all vesting shall occur only on the appropriate vesting date, subject to the Participant’s
continued service with the Company or any of its Subsidiaries on each applicable vesting date.
Upon expiration of the Option, the Option shall be cancelled and no longer exercisable.




          (b) Committee Discretion to Accelerate Vesting. Notwithstanding the foregoing, the
Committee may, in its sole discretion, provide for accelerated vesting of the Option at any time
and for any reason.




          (c) Expiration. Unless earlier terminated in accordance with the terms and provisions
of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall
expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant
Date.




          4. Termination. Subject to the terms of the Plan and this Agreement, the Option, to
the extent vested at the time of the Participant’s Termination, shall remain exercisable as
follows:




          (a) Termination due to Death or Disability. In the event of the Participant’s
Termination by reason of death or Disability, the vested portion of the Option shall remain
exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the
expiration of the stated term of the Option pursuant to Section 3(c) hereof; provided,
however, that in the case of a Termination due to Disability, if the Participant dies
within such one (1) year exercise period, any unexercised Option held by the Participant shall
thereafter be exercisable by the legal representative of the Participant’s estate, to the extent to
which it was exercisable at the time of death, for a period of one (1) year from the date of death,
but in no event beyond the expiration of the stated term of the Option pursuant to Section 3(c)
hereof.







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          (b) Involuntary Termination Without Cause. In the event of the Participant’s
involuntary Termination by the Company without Cause, the vested portion of the Option shall remain
exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii)
the expiration of the stated term of the Option pursuant to Section 3(c) hereof.




          (c) Voluntary Termination. In the event of the Participant’s voluntary Termination
(other than a voluntary Termination described in Section 4(d) hereof), the vested portion of the
Option shall remain exercisable until the earlier of (i) thirty (30) days from the date of such
Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(c)
hereof.




          (d) Termination for Cause. In the event of the Participant’s Termination for Cause or
in the event of the Participant’s voluntary Termination (as provided in Section 4(c) hereof) after
an event that would be grounds for a Termination for Cause, the Participant’s entire Option
(whether or not vested) shall terminate and expire upon such Termination.




          (e) Treatment of Unvested Options upon Termination. Any portion of the Option that is
not vested as of the date of the Participant’s Termination for any reason shall terminate and
expire as of the date of such Termination.




          5. Method of Exercise and Payment. Subject to Section 8 hereof, to the extent that
the Option has become vested and exercisable with respect to a number of shares of Common Stock as
provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at
any time or from time to time prior to the expiration of the Option as provided herein and in
accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the
filing of any written form of exercise notice as may be required by the Committee and payment in
full of the Per Share Exercise Price specified above multiplied by the number of shares of Common
Stock underlying the portion of the Option exercised.




          6. Non-Transferability. The Option, and any rights and interests with respect
thereto, issued under this Agreement and the Plan shall not be sold, exchanged, transferred,
assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the
Participant), other than by testamentary disposition by the Participant or the laws of descent and
distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the
Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be
valid upon execution of a written instrument in form and substance acceptable to the Committee in
its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the
Participant and the transferee, and provided, further, that the Option may not be subsequently
Transferred other than by will or by the laws of descent and distribution or to another Family
Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the
Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement. Any
attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or
hypothecate in any way the Option, or the levy of any execution, attachment or similar legal
process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan
shall be null and void and without legal force or effect.







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          7. Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by, and construed in accordance with, the laws
of the State of Delaware, without regard to the choice of law principles thereof.




          8. Withholding of Tax. The Company shall have the power and the right to deduct or
withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any
federal, state, local and foreign taxes of any kind (including, but not limited to, the
Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary
to be withheld or remitted to comply with the Code and/or any other applicable law, rule or
regulation with respect to the Option and, if the Participant fails to do so, the Company may
otherwise refuse to issue or transfer any shares of Common Stock otherwise required to be issued
pursuant to this Agreement. Any statutorily required withholding obligation with regard to the
Participant may be satisfied by reducing the amount of cash or shares of Common Stock otherwise
deliverable upon exercise of the Option.




          9. Entire Agreement; Amendment. This Agreement, together with the Plan, contains the
entire agreement between the parties hereto with respect to the subject matter contained herein,
and supersedes all prior agreements or prior understandings, whether written or oral, between the
parties relating to such subject matter. The Committee shall have the right, in its sole
discretion, to modify or amend this Agreement from time to time in accordance with and as provided
in the Plan. This Agreement may also be modified or amended by a writing signed by both the
Company and the Participant. The Company shall give written notice to the Participant of any such
modification or amendment of this Agreement as soon as practicable after the adoption thereof.




          10. Confidentiality and Non-Competition. Notwithstanding any other provision
of this Agreement, this Option may not be exercised on or after the date that (and any Option
Shares acquired pursuant to this Option or the proceeds from the subsequent sale of such Option
Shares shall be forfeited by Participant if) Participant, in the Board’s opinion and in its
complete and sole discretion has determined, engages in any conduct that violates any
non-competition, confidentiality or non-solicitation provisions under his or her employment or
other agreement with the Company (or any Affiliate) or that are otherwise applicable to
Participant’s employment with the Company (or any Affiliate).




          11. Notices. Any notice hereunder by the Participant shall be given to the
Company in writing and such notice shall be deemed duly given only upon receipt thereof by the
General Counsel of the Company. Any notice hereunder by the Company shall be given to the
Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such
address as the Participant may have on file with the Company.




          12. No Right to Employment. Any questions as to whether and when there has been a
Termination and the cause of such Termination shall be determined in the sole discretion of the
Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the
Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at
any time, for any reason and with or without Cause.




          13. Transfer of Personal Data. The Participant authorizes, agrees and unambiguously
consents to the transmission by the Company (or any Subsidiary) of any personal






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data information related to the Option awarded under this Agreement for legitimate business
purposes (including, without limitation, the administration of the Plan). This authorization and
consent is freely given by the Participant.




          14. Compliance with Laws. The issuance of the Option (and the Option Shares upon
exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any
applicable requirements of any foreign and U.S. federal and state securities laws, rules and
regulations (including, without limitation, the provisions of the Securities Act, the Exchange Act
and in each case any respective rules and regulations promulgated thereunder) and any other law or
regulation applicable thereto. The Company shall not be obligated to issue the Option or any of
the Option Shares pursuant to this Agreement if any such issuance would violate any such
requirements.




          15. Section 409A. Notwithstanding anything herein or in the Plan to the contrary, the
Option is intended to be exempt from the applicable requirements of Section 409A of the Code and
shall be limited, construed and interpreted in accordance with such intent.




          16. Binding Agreement; Assignment. This Agreement shall inure to the benefit of, be
binding upon, and be enforceable by the Company and its successors and assigns. The Participant
shall not assign (except in accordance with Section 6 hereof) any part of this Agreement without
the prior express written consent of the Company.




          17. Headings. The titles and headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a part of this
Agreement.




          18. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one and the same
instrument.




          19. Further Assurances. Each party hereto shall do and perform (or shall cause to be
done and performed) all such further acts and shall execute and deliver all such other agreements,
certificates, instruments and documents as either party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and the Plan and the
consummation of the transactions contemplated thereunder.




          20. Severability. The invalidity or unenforceability of any provisions of this
Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any
provision of this Agreement in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.




          21. Acquired Rights. The Participant acknowledges and agrees that: (a) the Company
may terminate or amend the Plan at any time; (b) the award of the Option made under this Agreement
is completely independent of any other award or grant and is made at the sole discretion of the
Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder)
give the Participant any right to any grants or awards in the future whatsoever; and (d) any
benefits granted under this Agreement are not part of the Participant’s




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ordinary salary, and shall not be considered as part of such salary in the event of severance,
redundancy or resignation.




[Remainder of Page Intentionally Left Blank]






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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 	 	 

	 	 	TRUSTWAVE HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	PARTICIPANT	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Social Security Number:  	 	







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