SMARTSERV ONLINE, INC.
1999 STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION CONTRACT
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THIS NONQUALIFIED STOCK OPTION CONTRACT entered into as of
October 13, 1999 between SMARTSERV ONLINE, INC., a Delaware corporation (the
"Company"), and ____________ (the "Optionee").
W I T N E S S E T H:
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1. The Company, in accordance with the allotment made by the
committee of the Company's Board of Directors (the "Committee") and subject to
the terms and conditions of the 1999 Stock Option Plan of the Company (the
"Plan"), grants to the Optionee an option to purchase an aggregate of _______
shares of the Common Stock, $.01 par value per share, of the Company ("Common
Stock") at an exercise price of $______ per share, being at least equal to the
fair market value of such shares of Common Stock on the date hereof. This option
is not an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. The term of this option shall be ____ years from the date
hereof, subject to earlier termination as provided in the Plan. However, this
option shall not be exercisable until the first anniversary of the date hereof,
at which time it shall become exercisable as to _____ of the total number of
shares of Common Stock subject hereto. Thereafter, on each ____ successive
anniversary dates, an additional _____% and _____% of the total number of shares
of Common Stock subject hereto, respectively, shall become exercisable. The
right to purchase shares of Common Stock under this option shall be cumulative,
so that if the full number of shares purchasable in a period shall not be
purchased, the balance may be purchased at any time or from time to time
thereafter, but not after the expiration of the option. Notwithstanding any of
the foregoing, in no event may a fraction of a share of Common Stock be
purchased under this option.
3. This option shall be exercised by giving written notice to the
Company at its then principal office, presently Metro Center, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 Attn: Chief Financial Officer, stating that the
Optionee is exercising the option hereunder, specifying the number of shares
being purchased and accompanied by payment in full of the aggregate purchase
price therefor (a) in cash or by certified check, (b) with previously acquired
shares of Common Stock which have been held by the Optionee for at least six
months, or (c) a combination of the foregoing.
4. The Company may withhold cash and/or shares of Common Stock to
be issued to the Optionee in the amount which the Company determines is
necessary to satisfy its obligation to withhold taxes or other amounts incurred
by reason of the grant or exercise of this option or the disposition of the
underlying shares of Common Stock. Alternatively, the Company may require the
Optionee to pay the Company such amount in cash promptly upon demand.
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5. Notwithstanding the foregoing, this option shall not be
exercisable by the Optionee unless (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act") with respect to the
shares of Common Stock to be received upon the exercise of this option shall be
effective and current at the time of exercise or (b) there is an exemption from
registration under the Securities Act for the issuance of the shares of Common
Stock upon such exercise. The Optionee hereby represents and warrants to the
Company that, unless such a Registration Statement is effective and current at
the time of exercise of this option, the shares of Common Stock to be issued
upon the exercise of this option will be acquired by the Optionee for his own
account, for investment only and not with a view to the resale or distribution
thereof. In any event, the Optionee shall notify the Company of any proposed
resale of the shares of Common Stock issued to him upon exercise of this option.
Any subsequent resale or distribution of shares of Common Stock by the Optionee
shall be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the sale of shares of Common
Stock being sold, or (y) a specific exemption from the registration requirements
of the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the Company
(unless waived by the Company) with a favorable written opinion of counsel, in
form and substance satisfactory to the Company, as to the applicability of such
exemption to the proposed sale or distribution. Such representations and
warranties shall also be deemed to be made by the Optionee upon each exercise of
this option. Nothing herein shall be construed as requiring the Company to
register the shares subject to this option under the Securities Act.
6. Notwithstanding anything herein to the contrary, if at any
time the Committee shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on any
securities exchange or under any applicable law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a condition to,
or in connection with, the granting of an option or the issuance of shares of
Common Stock hereunder, this option may not be exercised in whole or in part
unless such listing, qualification, consent or approval shall have been effected
or obtained free of any conditions not acceptable to the Committee.
7. The Company may affix appropriate legends upon the
certificates for shares of Common Stock issued upon exercise of this option and
may issue such "stop transfer" instructions to its transfer agent in respect of
such shares as it determines, in its discretion, to be necessary or appropriate
to (a) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act, or (b) implement the provisions of the Plan
or this Contract or any other agreement between the Company and the Optionee
with respect to such shares of Common Stock.
8. Nothing in the Plan or herein shall confer upon the Optionee
any right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate such employment at any time for any reason
whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
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9. The Company and the Optionee agree that they will both be
subject to and bound by all of the terms and conditions of the Plan, a copy of
which is attached hereto and made a part hereof. Any capitalized term not
defined herein shall have the meaning ascribed to it in the Plan. In the event
of a conflict between the terms of this Contract and the terms of the Plan, the
terms of the Plan shall govern.
10. The Optionee represents and agrees that he will comply with
all applicable laws relating to the Plan and the grant and exercise of this
option and the disposition of the shares of Common Stock acquired upon exercise
of the option, including without limitation, federal and state securities and
"blue sky" laws.
11. This option is not transferable by the Optionee otherwise
than by will or the laws of descent and distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee or the Optionee's
legal representatives.
12. This Contract shall be binding upon and inure to the benefit
of any successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled to the Optionee's
rights hereunder.
13. This Contract shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to the conflicts of law rules thereof.
14. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision.
15. The Optionee agrees that the Company may amend the Plan and
the options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the day and year first above written.
SMARTSERV ONLINE, INC.
By:
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Chief Financial Officer
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, Optionee
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Address
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