Exhibit 10.4
FORM (UK)
INTERACTIVE SYSTEMS WORLDWIDE INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO INTERACTIVE SYSTEMS WORLDWIDE INC.
2006 STOCK OPTION PLAN
AGREEMENT dated as of______________, by and between INTERACTIVE SYSTEMS
WORLDWIDE INC., a Delaware corporation, with its principal place of business at
0 Xxxxxxx Xxxxx, 0xx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and
the undersigned employee, agent or director of, or consultant to, the Company or
any of its subsidiaries (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company considers it desirable and in its best interests
that the Optionee be encouraged to acquire an ownership interest in the Company,
and thereby have an added incentive to advance the interests of the Company, by
the grant of an option to purchase shares of the Company's common stock, par
value $.001 per share (the "Common Stock"), in accordance with the Company's
2006 Stock Option Plan (the "Plan") on the terms and conditions hereinafter set
forth;
WHEREAS, the Plan provides that each option granted thereunder is to be
evidenced by an option agreement, setting forth the terms and conditions of the
option; and
WHEREAS, this "Option" (as hereunder defined) is granted for the
purpose of the business of the Company or any of its subsidiaries.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Optionee hereby
agree as follows:
1. Grant of Option.
The Company hereby grants to the Optionee the right, privilege and
option (the "Option") to purchase _________ shares of the Company's Common Stock
(the "Shares") at the purchase price of $_________ per Share (the "Exercise
Price"), in the manner and subject to the conditions hereinafter provided and
contained in the Plan. In the event of any inconsistencies between the Plan and
this Agreement, the Plan shall govern. Such number of Shares issuable upon
exercise of the Option shall be subject to adjustment as provided in Section 7
below. The Option is not intended to be an incentive stock option meeting the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"). This Option is granted under the provisions of Schedule 5 of the
Income Tax (Earnings and Pensions) Xxx 0000.
2. Time of Exercise of Option.
The Option shall not be exercisable during the first __ months after
the date of grant. Commencing on _________ after the date of grant, provided the
Optionee is then employed by or retained as an agent of, director of, or
consultant to, the Company or any of its subsidiaries, the Option shall be
exercisable as to __% of the Shares covered by the Option. On each of the
_________, and ___________ and__________ anniversaries of the date of the grant,
provided the Optionee is then employed by or retained as an agent of, director
of, or consultant to, the Company or any of its subsidiaries, an additional __%
percent of the Shares covered hereby shall be exercisable such that on the
________ anniversary of the date of grant the Option shall be exercisable to the
extent of 100% of the Shares covered by the Option; provided, however, that upon
a Change in Control (as defined in the Plan) of the Company, the Option shall be
immediately exercisable to the extent of 100% of the Shares covered by the
Option. To the extent the Option is not exercised by the Optionee when it
becomes exercisable, it shall continue in full force and effect until the
Expiration Date (as hereinafter defined).
3. Method of Exercise.
The Option shall be exercised by written notice in the form of Exhibit
A hereto directed to the Company at the Company's address set forth above, duly
executed by the Optionee, specifying the number of Shares being purchased and
accompanied by either (i) cash or check payable to the order of the Company in
full payment of the Exercise Price for the number of Shares being purchased, or
(ii) certificate (s), duly endorsed for transfer to the Company with signature
guaranteed, for that number of Shares owned by the Optionee having an aggregate
fair market value as determined in accordance with the Plan ("Fair Market
Value"), on the date of exercise equal to the full Exercise Price for the number
of Shares being purchased, or (iii) a combination of (i) and (ii).
The Option shall not be exercisable at any time in an amount less than
100 Shares (or the remaining number of Shares then covered by and purchasable
under the Option if less than 100 Shares).
4. Term of Options; Exercisability.
A. Term.
1. This Option shall expire on the tenth anniversary of the date
of this Agreement (the "Expiration Date"), subject to earlier termination as
herein provided.
2. Except as otherwise provided in this Section 4, if the
Optionee's employment by, or retention as an agent, director of, or consultant
to, the Company and its subsidiaries is terminated for any reason, the Option
shall terminate on the earlier of (i) three months after the date the Optionee's
employment by or retention as an agent, director of, or consultant to, the
Company and its subsidiaries is terminated, or (ii) the date on which the Option
expires by its terms.
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3. If the Optionee's employment by, or retention as an agent,
director of, or consultant to, the Company is terminated by the Company or any
of its subsidiaries for "cause" (as such term is defined in any employment
agreement or similar agreement between the Optionee and the Company or its
subsidiaries, as applicable, or , if there is no such employment or similar
agreement, or the employment or similar agreement does not have provisions
relating to termination for cause, as such term is defined by the law of the
State of Delaware), the Option will to the extent not terminated, be deemed to
have terminated on the date immediately preceding the date the Optionee's
employment by, or retention as an agent, director of, or consultant to, the
Company is terminated by the Company and its subsidiaries.
4. If the Optionee is an individual and the Optionee's employment
by, or retention as an agent, director of, or consultant to, the Company is
terminated by the Company and its subsidiaries because the Optionee has become
"disabled" (as defined in any employment agreement or similar agreement between
the Optionee and the Company or within the meaning of Section 22 (e) (3) of the
Code), the Option shall terminate on the earlier of (i) one year after the date
the Optionee's employment by, or retention as an agent, director of, or
consultant to, the Company and its subsidiaries is terminated, or (ii) the date
on which the Option expires by its terms.
5. In the event of the death of the Optionee, the Option shall
terminate on the earlier of (i) one year after the date of death, or (ii) the
date on which the Option expires by its terms.
B. Exercisability.
1. Except as provided in this Section 4.B., if the Optionee's
employment by, or retention as an agent, director of, or consultant to, the
Company and its subsidiaries is terminated, the Option shall be exercisable only
to the extent that the right to purchase Shares under the Option is exercisable
on the date the Optionee's employment by, or retention as an agent, director of,
or consultant to, the Company and its subsidiaries is terminated.
2. If the Optionee's employment by, or retention as an agent,
director of, or consultant to, the Company is terminated by the Company and its
subsidiaries because the Optionee has become disabled (as such term is defined
in any employment or similar agreement between the Optionee and the Company or,
if there is no such employment or similar agreement, or the employment or
similar agreement does not contain provisions relating to termination for
disability, as determined by the Board of Directors of the Company), the Option
shall be immediately exercisable as to the full number of Shares covered by the
Option, whether or not under the provisions of Section 2 hereof the Option was
otherwise exercisable as of the date of disability.
3. In the event of the death of the Optionee, the Option granted
to the Optionee shall be immediately exercisable as to the full number of Shares
covered thereby, whether or not under the provisions of Section 2 hereof the
Optionee was entitled to do so at the date of his death, by the executor,
administrator or personal representative of the Optionee, or by any person or
persons who acquired the right to exercise such Option by bequest or inheritance
or by reason of the death of the Optionee.
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5. Non-Transferability.
The right of the Optionee to exercise the Option shall not be
assignable or transferable by the Optionee otherwise than by will or the laws of
descent and distribution, and the Option may be exercised during the lifetime of
the Optionee only by the Optionee. The Option shall be null and void and without
effect upon the bankruptcy of the Optionee or upon any attempted assignment or
transfer, except as hereinabove provided, including without limitation, any
purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition contrary to the provisions hereof, or levy of
execution, attachment, trustee process or similar process, whether legal or
equitable, upon the Option.
6. Representation Letter and Investment Legend.
A. Notwithstanding the provisions of Sections 3 and 4 hereof, the
Option may not be exercised, and the Company may delay the issuance of the
Shares covered by the exercise of the Option and the delivery of a certificate
for the Shares, until one of the following conditions shall be satisfied:
1. The Shares with respect to which the Option has been exercised
are at the time of the issuance of the Shares effectively registered or
qualified under applicable federal and state securities acts now in force or as
hereafter amended or modified; or
2. Counsel for the Company shall have rendered an opinion to the
Company, which opinion shall not be unreasonably conditioned or withheld, that
the issuance of the Shares is exempt from registration and qualification under
applicable federal and state securities acts now in force or as hereafter
amended.
B. In the event that for any reason the Shares to be issued upon
exercise of the Option shall not be effectively registered under the Securities
Act of 1933, as amended (the "1933 Act") , upon any date on which the Option is
exercised in whole or in part, the Optionee shall give a written representation
to the Company in the form attached hereto as Exhibit A and the Company shall
place an "investment legend," so-called, as described in Exhibit A, upon any
certificate for the Shares issued by reason of such exercise. In the event that
the Company shall, nevertheless, deem it necessary or desirable to register
under the 1933 Act or other applicable statutes the Shares with respect to which
the Option shall have been exercised, or to qualify the Shares for exemption
from the 1933 Act or other applicable statutes, then the Company may take such
action and may require from the Optionee such information in writing for use in
any registration statement, supplementary registration statement, prospectus,
preliminary prospectus, offering circular or any other document that is
reasonably necessary for such purpose and may require reasonable indemnity to
the Company and its officers and directors from the Optionee against all losses,
claims, damages and liabilities arising from such use of the information so
furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
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C. The Company shall be under no obligation to qualify the Shares
or to cause a registration statement or a post-effective amendment to any
registration statement to be prepared for the purposes of covering the issuance
of the Shares or to cause the issuance of the Shares to be exempt from
registration and qualification under applicable federal and state securities
acts now in force or as hereinafter amended, except as otherwise agreed to by
the Company in writing in its sole discretion and, accordingly, the Company may
delay the issuance of the Shares covered by the exercise of the Option and the
delivery of a certificate for the Shares until the Company shall have determined
that all conditions to the issuance of the Shares shall have been satisfied.
7. Adjustment in and Changes in Common Stock.
Subject to the Plan, if the outstanding shares of the Common Stock are
changed into, or exchanged for a different number or kind of shares or other
securities of the Company by reason of any reorganization, recapitalization,
reclassification, stock split, combination of shares, or dividends payable in
capital stock, appropriate and equitable adjustment shall be made by the Board
of Directors of the Company, in its sole discretion, in the number and kind of
shares as to which the Option or portion thereof then unexercised shall be
exercisable. Such adjustment in the Option shall be made without change in the
total price applicable to the unexercised portion of such the Option and with a
corresponding adjustment in the Option price per share.
8. Effect on Other Rights.
This Agreement shall in no way affect the Optionee's participation in
or benefits under any other plan or benefit program maintained or provided by
the Company. Nothing in this Agreement shall be construed to give the Optionee
any right to any additional options other than in the sole discretion of the
Board of Directors of the Company or to confer on the Optionee any right to
continue in the employ of the Company or any subsidiary thereof or to continue
to be retained as an agent, director of, or consultant to, the Company, nor
shall this Agreement be evidence of any agreement or understanding, express or
implied, that the Company will employ or continue to retain the Optionee in any
particular position or at any particular rate of remuneration, or for any
particular period of time or to interfere in any way with the right of the
Company or a subsidiary thereof (or the right of the Optionee) to terminate the
employment or retention of the Optionee at any time, with or without cause,
notwithstanding the possibility that the Option may thereby be terminated
entirely.
9. Rights as a Shareholder.
The Optionee shall have no rights as a shareholder of the Company with
respect to any Shares which may be purchased upon exercise of the Option until
(x) the Option shall have been exercised with respect thereto (including payment
to the Company of the Exercise Price), and (y) the earlier to occur of (i)
delivery by the Company to the Optionee of a stock certificate therefor, or (ii)
the date on which the Company is required to deliver a certificate pursuant to
the Plan and this Agreement. Except as otherwise expressly provided in the Plan,
no adjustment shall be made for dividends or other rights for which the record
date is prior to the date such certificate is issued or required to be issued in
accordance with the Plan.
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10. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY THEREIN WITHOUT
REFERENCE TO CONFLICT OF LAWS PRINCIPLES.
11. Provisions Specific to Optionees in the United Kingdom.
A. Optionee hereby agrees to accept the grant of this Option and
agrees and undertakes:
1. to be bound by the terms and conditions set out in the Plan;
2. that to the extent any Withholding (as referred to in Section
15 of the Plan) has not been deducted from Optionee's salary in the relevant
month in which the Options exercised, the Optionee's employing company is
authorized to make deductions from subsequent salary payments and to apply the
amounts so deducted in reimbursing the person which has accounted for such
liability; and
3. to indemnify the Company and each subsidiary of the Company in
respect of any Withholding liability.
12. Withholding Taxes.
Whenever Shares are to be issued upon exercise of the Option, the
Company shall have the right to require the Optionee to remit to the Company an
amount sufficient to satisfy all federal, state and local withholding tax
requirements, if any, prior to the delivery of any certificate or certificates
for such Shares. The Company may agree to permit the Optionee to withhold Shares
purchased upon exercise of this Option to satisfy the above-mentioned
withholding requirement.
13. Headings.
The headings contained in this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or intent of
this Agreement or in any way affect this Agreement.
14. Binding Effect.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed, and the Optionee has hereunto set his or her hand and seal, all as of
the day and year first above written.
INTERACTIVE SYSTEMS WORLDWIDE INC.
By:
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Title:
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OPTIONEE:
SIGNED but not delivered until the date hereof
AS A DEED by __________________________ in the
presence of :
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Name:
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Address:
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Witness signature:
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Witness name (print)
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Address:
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Occupation:
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EXHIBIT A
TO STOCK OPTION AGREEMENT
Date:___________________
Interactive Systems Worldwide Inc.
0 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
I hereby elect to purchase ________ shares of the Common Stock, $.001
par value per share, of Interactive Systems Worldwide Inc. (the "Company") under
the option granted to me pursuant to the Stock Option Agreement, dated
_____________, ______, under the Company's 2006 Stock Option Plan.
Enclosed is [cash] [a check] in the amount of $______. ______ or
shares of the Company's Common Stock] in full payment of the shares being
purchased ($____________ per share x ________ shares).
Please deliver certificates representing the shares being purchased to
me at:
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I hereby acknowledge that I have been informed as follows:
1. If the shares of common stock of the Company to be issued to me
pursuant to the exercise of said option have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), they must be held
indefinitely unless such shares are subsequently registered under the 1933 Act,
or an exemption from such registration is available.
2. Routine sales of securities made in reliance upon Rule 144, if
applicable, under the 1933 Act may be made only after the holding period and in
limited amounts in accordance with the terms and conditions provided by that
Rule, and in any sale to which that Rule is not applicable, registration or
compliance with some other exemption under the 1933 Act will be required.
3. The Company is under no obligation to me to register the shares or
to comply with any such exemptions under the 1933 Act.
4. The availability of Rule 144, if applicable, is dependent upon
adequate current public information with respect to the Company being available
and, at the time that I may desire to make a sale pursuant to the Rule, the
Company may neither wish nor be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me,
I hereby represent and warrant that I am acquiring such shares for my own
account for investment, and that I will not sell, pledge, transfer or otherwise
dispose of such shares in the absence of an effective registration statement
covering the same, except as permitted by the provisions of Rule 144, if
applicable, or some other applicable exemption under the 1933 Act. In view of
this representation and warranty, I agree that there may be affixed to the
certificates for the shares to be issued to me, and to all certificates issued
hereafter representing such shares (until in the opinion of counsel, which
opinion must be reasonably satisfactory in form and substance to counsel for the
Company, it is no longer necessary or required) a legend as follows:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended (the "Act"), and
were acquired by the registered holder, pursuant to a representation and
warranty that such holder was acquiring such shares for his or her own account
and for investment, with no intention to transfer or dispose of the same, in
violation of the registration requirements of the Act. These shares may not be
sold, pledged, transferred or otherwise disposed of in the absence of an
effective registration statement under the Act, or an opinion of counsel, which
opinion is reasonably satisfactory to counsel to the Company, to the effect that
registration is not required under the Act."
I further agree that the Company may place a stop order with its
Transfer Agent, prohibiting the transfer of such shares, so long as the legend
remains on the certificates representing the shares.
Very truly yours,
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Optionee:
