COLLEXIS HOLDINGS, INC. NONQUALIFIED STOCK OPTION AGREEMENT
Exhibit
10.11
NONQUALIFIED
STOCK OPTION
AGREEMENT
THIS
NONQUALIFIED STOCK OPTION AGREEMENT is
made
effective as of the 1st
day of
April 2007 by and between Collexis Holdings, Inc., a Nevada corporation (the
"Company") and Xxxxxxx Xxxxxx, a resident of the State of New Jersey, USA (the
"Optionee") (together, this agreement and the Statement of Terms and Conditions
and Schedules attached hereto shall constitute and be referred to as the
"Agreement"). Capitalized terms and phrases shall have the meaning ascribed
thereto in this Agreement.
WITNESSETH:
WHEREAS,
Company
has agreed to employ Optionee under the terms and conditions of that certain
Employment Agreement, having an effective date as of April 1st, 2007 (the
"Employment Agreement");
WHEREAS,
pursuant
to the Employment Agreement, Company agreed to issue to Optionee the option
to
purchase 750,000 shares
of
voting common stock for the purpose of providing a sense of proprietorship
and
personal involvement in the development and financial success of and further
encouraging Optionee to devote his or her best efforts to Company;
NOW,
THEREFORE,
in
consideration of the premises and of the mutual covenants and agreements
hereinafter set forth, Company hereby awards to Optionee as of the Grant Date
a
nonqualified stock option (the "Option") to purchase the Option Shares on the
terms and conditions described in this Agreement, which Optionee hereby accepts
on said terms and conditions:
|
1.
|
Grant Date: April 1st, 2007. | |||
|
2.
|
Type of Option: Nonqualified stock option. | |||
|
3.
|
Option Shares: 750,000 shares (the "Option Shares") of Company's voting common stock, as such phrase is defined in Company's Articles of Incorporation, as amended, (the "Stock"), subject to adjustment as provided in the attached Statement of Terms and Conditions. | |||
|
4.
|
Exercise
Price:
$.75 per share of Stock (the "Exercise Price"), subject to adjustment
as
provided in the attached Statement of Terms and Conditions, which
is made
an integral part of this Agreement.
|
|||
|
5.
|
Option
Period:
The Option may be exercised as to all or any portion of the Option
Shares
during the period that commences on the Grant Date, and ends on the
earlier of:
|
|||
|
a.
|
The fourth (4th ) anniversary of the Grant Date; or | ||
|
b.
|
In the event of any termination of Optionee's services under the Employment Agreement, then in such event, upon and coincident with either of the following dates: | ||
|
i.
|
If such termination shall occur on account of Optionee's death or disability, then that date which coincides with the first anniversary thereof; or | |||
|
ii.
|
If such termination shall occur on account of any other reason, then that date which is ninety (90) days thereafter (the "Option Period"); | |||
| provided, however, that the Option may be exercised on any date during such Option Period as to no more than the number of Option Shares that have vested as of such date as determined in accordance with Section 6, below. Company, in its sole discretion, may determine that Optionee is disabled upon certification thereof by a qualified physician selected by it after such physician examines the Optionee. Note that other limitations, restrictions, terms and conditions applicable to the Option and Option Shares as described in the attached Statement of Terms and Conditions may apply. | ||||
|
6.
|
Vesting
Schedule:
The Option Shares shall vest in accordance with the Vesting Schedule
attached as Schedule 1 (the "Vesting Schedule"), which is attached
hereto
and made a part hereof. All or a portion of the Option Shares may
vest on
an earlier date as and if so provided in the attached Statement of
Terms
and Conditions.
|
|||
|
7.
|
Cancellation:
This Agreement, including, without limitation, the Option described
herein, is subject to cancellation if this Agreement is not signed
by
Optionee as required below.
|
|||
2
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first written above.
| COMPANY | ||
|
a
Nevada company
|
||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Chief Executive Officer | ||
By
signing below, Optionee hereby accepts the Option subject to all its terms
and
provisions and agrees to be bound by the terms and provisions of this Agreement,
including, without limitation, the attached Statement of Terms and Conditions.
Optionee authorizes Company to withhold, in accordance with applicable law,
from
any compensation payable to him or her, any taxes required to be withheld by
federal, state or local law as a result of the grant, existence or exercise
of
the Option or subsequent sale of the Option Shares, if any.
| OPTIONEE | ||
| Signature: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
3
COLLEXIS
HOLDING, INC.
STATEMENT
OF
TERMS
AND CONDITIONS
TO
THE
1. Exercise
of Option.
The
Option may be exercised with respect to all or any portion of the Option Shares
that have vested in accordance with Section 6 of this Agreement at any time
during the Option Period by:
|
a.
|
Delivery
to Company, at its principal place of business, of a written notice
of
exercise in substantially the form attached hereto as Exhibit 1,
which shall be delivered to Company no earlier than thirty (30) days
and
no later than ten (10) days prior to the date upon which Optionee
desires
to exercise all or any portion of the Option, unless Company shall
otherwise agree; and
|
|
b.
|
Payment
to Company of the Exercise Price multiplied
by
the number of Option Shares being purchased (the "Purchase
Price").
|
Upon
acceptance of such notice and receipt of payment in full of the Purchase Price,
Company shall cause to be issued a certificate representing the Option Shares
purchased.
2. Purchase
Price.
Payment
of the Purchase Price for all Option Shares purchased pursuant to the exercise
of an Option shall be made in cash, check, stock (with the consent of Company)
or other monetary value that Company on a case-by-case basis finds and confirms
to be acceptable in writing.
3. No
Rights as a Shareholder.
Optionee
shall not be deemed to be the holder of, or to have any of the rights of a
holder with respect to any Option Shares until (a) the Option shall have been
exercised pursuant to the terms of this Agreement and Optionee shall have paid
in full the Purchase Price for the number of Option Shares in respect of which
the Option was exercised, (b) Company shall have issued and delivered the Option
Shares to Optionee, and (c) Optionee's name shall have been entered as a
shareholder of record on the books of Company, whereupon Optionee shall have
full ownership rights with respect to such Option Shares. Company
shall make no adjustment for any dividends or distributions or other rights
on
or with respect to Option Shares for which the record date is prior to the
issuance of such stock certificate, except as may otherwise be provided in
this
Agreement.
4. Restriction
on Transfer of Option.
The
Option evidenced hereby is nontransferable other than by will or the laws of
descent and distribution and shall be exercisable during the lifetime of
Optionee only by Optionee (or in the event of Optionee's disability, by his
or
her personal representative) and after Optionee's death, only by Optionee's
legatee or the executor of Optionee's estate. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of this Option contrary
to
the provisions of this Agreement shall be null and void and without legal
effect.
5. Securities
Laws Restrictions.
The
Option may not be exercised at any time unless, in the opinion of counsel for
Company, the issuance and sale of the Option Shares issued upon such exercise
is
exempt from registration under the Securities Act of 1933, as amended, or any
other applicable federal or state securities law, rule or regulation, or the
Option Shares have been duly registered under such laws. Company shall not
be
required to register the Option Shares issuable upon the exercise of the Option
under any such laws.
6. Changes
in Capitalization.
|
a.
|
An
appropriate adjustment in the number and kind of Option Shares and
in the
Exercise Price shall be made by Company in the event the number of
Shares
of Stock of Company is increased or decreased by reason of Company
effecting one or more stock dividends, stock splits, reverse stock
splits,
subdivisions, consolidations or other similar events, or there occurs
any
other event which in the judgment of Company necessitates such
action.
|
|
b.
|
In
the event of a Change in Control pursuant to which the surviving
entity
does not agree to the assumption of the Option, Company may elect
to take
such action as it deems necessary or appropriate, including, without
limitation, substitute new awards, adjust outstanding awards, accelerate
awards or remove restrictions on outstanding awards. For
purposes of this subsection, the phrase 'Change In Control' means:
(a) the
acquisition of ownership, directly or indirectly (in a single transaction
or a series of related transactions), beneficially or of record,
by any
Person or group (within the meaning of Section 13(d) and Section
14(d)(2)
of the Securities Exchange Act of 1934 as in effect on the date hereof)
of
capital stock representing more than 50.1% of the issued and outstanding
capital stock of Company entitled to vote for the members of the
board of
directors of Company (other than by any Person or group in control
of
Company on the date hereof), or (b) the acquisition of ownership,
directly
or indirectly (in a single transaction or a sales of related
transactions), by any Person or group (other than the group in control
of
Company on the date hereof) of over 50.1% of the assets of Company;
provided,
however,
that a Change in Control shall not include any acquisitions described
in
(a) or (b) above by any holder of Company's common stock, group of
such
stockholders or their respective affiliates or any change in control
that
occurs on account of any public offering of Company's common stock
registered under the Securities Exchange Act of 1934. 'Person' shall
mean
a natural person, partnership (whether general, limited, or limited
liability, and whether domestic or foreign), limited liability company,
trust, business trust, estate, association, corporation, joint venture,
custodian, nominee, cooperative, or any other organization or any
other
individual or entity in its own or any representative capacity.
|
|
c.
|
The
existence of the Option granted pursuant to this Agreement shall
not
affect in any way the right or power of Company to make or authorize
any
adjustment, reclassification, reorganization or other change in its
capital or business structure, any merger or consolidation of Company,
any
issue of debt or equity securities having preferences or priorities
as to
its Stock or the rights thereof, the dissolution or liquidation of
Company, any sale or transfer of all or any part of its business
or
assets, or any other corporate act or proceeding. Any adjustment
pursuant
to this Section may provide for the elimination without payment therefor
of any fractional shares that might otherwise become subject to any
Option.
|
7.
Legend
on Stock Certificates.
All
certificates evidencing Option Shares purchased under this Agreement in an
unregistered transaction shall bear the following legend (and such other
restrictive legends as are required or deemed advisable under the provisions
of
any applicable law):
"THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT
AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED."
8.
Governing
Laws.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF SOUTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED AND PERFORMED IN SUCH
STATE WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES.
9.
Successors.
This
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and permitted assigns of Optionee and
Company.
10. Notice.
Except
as otherwise specified herein, all notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given if
personally delivered or if sent to the proposed recipient at the proposed
recipient's last known address (a) by registered or certified United States
mail, return receipt requested, postage prepaid, or (b) by a nationally
recognized overnight courier service. Any party may designate any other address
to which notices shall be sent by giving notice of the address to the other
party in the same manner as provided herein.
11. Severability.
In the
event that any one or more of the provisions or portion thereof contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, the same shall not invalidate or otherwise affect
any other provisions of this Agreement, and this Agreement shall be construed
as
if the invalid, illegal or unenforceable provision or portion thereof had never
been contained herein.
12. Other
Terms; Entire Agreement.
Optionee's rights under this Agreement are subject in all respects to all of
the
terms and conditions of the form of exercise notice attached as Exhibit 1.
Each
of the terms and conditions contained in Exhibit 1 are incorporated herein
by
reference. This Agreement expresses the entire understanding of the parties
with
respect to the Option.
13. Violation.
Any
transfer, pledge, sale, assignment, or hypothecation of the Option or any
portion thereof shall be a violation of the terms of this Agreement and shall
be
void and without effect.
14. Headings
and Capitalized Terms.
Section
headings used in this Agreement are for convenience of reference only and shall
not be considered in construing this Agreement.
15. Specific
Performance.
In the
event of any actual or threatened default in, or breach of, any of the terms,
conditions and provisions of this Agreement, the party or parties who are
thereby aggrieved shall have the right to specific performance and injunction
in
addition to any and all other rights and remedies at law or in equity, and
all
such rights and remedies shall be cumulative.
16. No
Right to Continued Retention.
Nothing
in this Agreement shall be interpreted or construed to confer upon Optionee
any
right with respect to Optionee's continued service as an employee with Company,
nor shall this Agreement interfere in any way with the right of the Board of
Directors of the Company to terminate Optionee's service of employment at any
time.
[Remainder
of this page is intentionally left blank]
EXHIBIT
1
COLLEXIS
HOLDING, INC.
NOTICE
OF EXERCISE OF
OPTION
TO PURCHASE
COMMON
STOCK
| Name: | |
| Address: | |
| Date: |
Collexis
Holding, Inc.
0000
Xxxx
Xxxxxx
Xxxxx
000
Xxxxxxxx,
XX 00000
Attn:
Chief Executive Officer
Re: Exercise
of Nonqualified Stock Option
To
whom
it may concern:
I
hereby
elect to exercise the option granted to me to purchase ________ Option Shares
in
accordance with that certain Nonqualified Stock Option Agreement (the
"Agreement") dated as of ______ __, 2007. Except as otherwise defined in this
notice, all capitalized terms and phrases in this notice shall have the meaning
ascribed thereto in the Agreement. Subject to Company's acceptance, the purchase
shall take place as of the _______ day of __________________ 20__ (the "Exercise
Date").
On
the
Exercise Date, I will deliver to you cash or check payable to Company, in the
total amount of $________, representing the full Purchase Price of such Option
Shares. If I do not deliver cash or check to Company on the Exercise Date,
I
hereby request that Company withhold the number of Option Shares that have
an
aggregate value equal to the Purchase Price of the number of Option Shares
for
which this notice is given from the number of Option Shares issued to
me.
As
soon
as the stock certificate is registered in my name, please deliver it to me
at
the above address.
If
the
Option Shares being acquired are not registered for issuance to and resale
by
Optionee pursuant to an effective registration statement on Form S-8 (or
successor form) filed under the Securities Act of 1933, as amended (the "1933
Act"), I hereby represent, warrant, covenant, and agree with Company as
follows:
1
| 1. |
The
Option Shares being acquired by me are being acquired for my own
account
without the participation of any other person, with the intent of
holding
the Option Shares for investment and without the intent of participating,
directly or indirectly, in a distribution of the Option Shares, and
not
with a view to, or for resale in connection with, any distribution
of the
Option Shares, nor am I aware of the existence of any distribution
of the
Option Shares;
|
| 2. |
I
am not acquiring the Option Shares based upon any representation,
oral or
written, by any person with respect to the future value of, or income
from, the Option Shares but rather upon an independent examination
and
judgment as to the prospects of
Company;
|
| 3. |
The
Option Shares were not offered to me by means of publicly disseminated
advertisements or sales literature, nor am I aware of any offers
made to
other persons by such means;
|
| 4. |
I
am able to bear the economic risks of the investment in the Option
Shares,
including the risk of a complete loss of my investment
therein;
|
| 5. |
I
understand and agree that the Option Shares will be issued and sold
to me
without registration under any state law relating to the registration
of
securities for sale, and will be issued and sold in reliance on the
exemptions from registration under the 1933 Act and the rules and
regulations promulgated thereunder;
|
| 6. |
The
Option Shares cannot be offered for sale, sold or transferred by
me other
than pursuant to: (1) an effective registration under the 1933 Act
or in a
transaction otherwise in compliance with the 1933 Act; and (2) evidence
satisfactory to Company of compliance with the applicable securities
laws
of other jurisdictions. Company shall be entitled to rely upon an
opinion
of counsel satisfactory to it with respect to compliance with the
above
laws;
|
| 7. |
Company
will be under no obligation to register the Option Shares or to comply
with any exemption available for the sale of the Option Shares without
registration or filing, and no assurance has been given that the
information or conditions necessary to permit routine sales of securities
of Company under Rule 144 under the 1933 Act are or will become available.
Company is under no obligation to act in any manner so as to make
Rule 144
available with respect to the Option
Shares;
|
| 8. |
I
agree, in connection with any public offering of Company's Stock,
upon
request of Company or the underwriters managing any underwritten
public
offering of Company's Stock and making such request with the approval
of
Company's Board of Directors, not to sell, make any short sale of,
loan,
grant any option for the purchase of, or otherwise dispose of any
of my
Option Shares without the prior written consent of Company or such
underwriters, as the case may be, from the effective date of such
registration for so long as Company or the underwriters may specify,
but
in any event not to exceed 180
days;
|
2
| 9. |
I
have had the opportunity to ask questions of and receive answers
from
Company and any person acting on its behalf and to obtain all material
information reasonably available with respect to Company and its
affairs.
I have received all information and data with respect to Company
which I
have requested and which I have deemed relevant in connection with
the
evaluation of the merits and risks of my investment in
Company;
|
| 10. |
I
have such knowledge and experience in financial and business matters
that
I am capable of evaluating the merits and risks of the purchase of
the
Option Shares hereunder and I am able to bear the economic risk of
such
purchase; and
|
| 11. |
I
understand and agree that the Option Shares being acquired by me
are
subject to certain restrictions contained in the
Agreement.
|
The
agreements, representations, warranties and covenants made by me herein extend
to and apply to all of the Option Shares of Company issued to me pursuant to
this notice. Acceptance by me of the certificate representing such Option Shares
shall constitute a confirmation by me that all such agreements, representations,
warranties and covenants made herein shall be true and correct at that
time.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
I
understand that the certificates representing the Option Shares being purchased
by me in accordance with this notice shall bear a legend referring to the
foregoing covenants, representations and warranties and restrictions on
transfer, and I agree that a legend to that effect may be placed on any
certificate which may be issued to me as a substitute for the certificates
being
acquired by me in accordance with this notice.
| |
|
Very
truly yours, |
|
|
||
AGREED
TO AND ACCEPTED:
COLLEXIS
HOLDING, INC.
| By: | ||||
|
|
||||
| Title: | ||||
|
|
Cumulative
Number of Option Shares
Exercised
to Date: ____________________________________________
|
Number
of Unexercised Option Shares
|
|
|
Remaining:
____________________________________________
|
Date:
____________________________________________
|
4
| Name of Option Holder: |
| Date of Option: |
SCHEDULE
1
Vesting
Schedule
|
Aggregate
Number of Option
Shares
which become Vested
|
Date
(close of business) on which such
aggregate
Option Shares become Vested
|
|
|
(a)
|
62,500
|
July
1st,
2007
|
|
(b)
|
125,000
|
October
1st.
2007
|
|
(c)
|
187,500
|
January
1st,
2008
|
|
(d)
|
250,000
|
April
1st,
2008
|
|
(e)
|
312,500
|
July
1st,
2008
|
|
(f)
|
375,000
|
October
1st,
2008
|
|
(g)
|
437,500
|
January
1st,
2009
|
|
(h)
|
500,000
|
April
1st,
2009
|
|
(i)
|
562,500
|
July
1st,
2009
|
|
(j)
|
625,000
|
October
1st,
2009
|
|
(k)
|
687,500
|
January
1st,
2010
|
|
(l)
|
750,000
|
April
1st,
2010
|
Notwithstanding
the foregoing, no Option Shares shall vest upon or following the effective
date
of Optionee's termination service of employment if such termination shall occur
(a) on account of mutual agreement; (b) Optionee's death or disability; (c)
for
Cause; or (d) on account of a voluntary termination by Optionee; provided,
however,
that
all such Option Shares shall become fully and immediately vested upon and
coincident with the effective date on which any one of the following events
shall first occur: (y) a Change in Control; or (z) as defined in Optionee's
Employment Agreement, the termination of Optionee's service of employment by
Optionee for Good Reason or by Company without cause.
