EXHIBIT 4.2
NORTHERN OSTRICH CORP.
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is entered into as of
___________(date) by and between NORTHERN OSTRICH CORP., a Nevada corporation
(the "Corporation") and ___________(the "Optionee").
WHEREAS, the Corporation desires to afford the Optionee an opportunity to
purchase certain Shares of the Corporation's common stock so as to acquire a
proprietary interest as a shareholder of the Corporation and to provide the
Optionee with an incentive to use his best efforts in the service of the
Corporation.
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth
below, the parties agree as follows:
1. Grant of Option.
The Corporation hereby grants to Optionee the right to purchase up to the
aggregate number of Shares set forth in Exhibit A attached hereto at the
exercise price per Share stated therein. The right to purchase such Shares shall
be subject to all of the provisions, terms and conditions set forth in this
Agreement and in the NORTHERN OSTRICH CORP. 2003 Stock Option (the Plan), a copy
of which is annexed hereto and made a part hereof. Unless defined in this
Agreement, capitalized terms used herein shall have the meaning ascribed to them
in the Plan.
__________(check if applicable):
This Option is not intended to be and shall not be treated as an Incentive Stock
Option under Section 422 of the Code unless this sentence has been manually
crossed out and its deletion is followed by the signature of the corporate
officer who signed this Option on behalf of the Corporation _____________.
2. Vesting Schedule and Expiration.
This Option shall not be exercisable prior to the vesting date set forth in
Exhibit A attached hereto or subsequent to the expiration date set forth therein
unless extended by the Board of Directors or the Option Committee. During the
exercise period, the Option may be exercised by the Optionee (or such other
person or persons authorized to exercise Options under the Plan), in whole or in
part, from time to time, subject to the maximum percentage of Options then
exercisable in accordance with the schedule set forth in Exhibit A attached
hereto. The Corporation agrees to maintain during such exercise period a
sufficient number of Shares (which may be authorized and unissued Shares or
issued Shares that have been reacquired by the Corporation) corresponding to the
number of unexercised Options granted to the Optionee after taking into account
any Share adjustment under the Plan.
3. Restrictions on Transferability of Options.
This Option may not be transferred by the Optionee other than by will or the
laws of descent and distribution and may be exercised during the Optionee's
lifetime only by the Optionee or the Optionee's guardian or legal
representative. A transfer of an Option by will or the laws of descent and
distribution shall not be effective unless the Option Committee shall have been
furnished with such evidence as it may deem necessary to establish the validity
and effectiveness of the transfer.
4. Termination Provisions
(1) Except as provided in paragraphs (2), and (3) below, if an Optionee's
employment by, or relationship with, the Corporation is terminated
voluntarily or, by the Corporation, whether such termination is for
Cause or for no reason whatsoever, any Option heretofore granted which
remains unexercised at the time of such termination shall expire
immediately, provided, however, that the Option Committee may, in its
sole and absolute discretion, within thirty (30) days of such
termination, waive the expiration of any Option awarded under the
Plan, by giving written notice of such waiver to the Optionee at such
Optionee's last known address. In the event of such waiver, the
Optionee may exercise any such Options only to such extent, for such
time, and upon such terms and conditions set forth in subparagraph (i)
above. The determination as to whether a termination is voluntary or
for Cause shall be made by the Option Committee, whose decision shall
be final and conclusive.
(2) If an Optionee ceases to be employed by or ceases to perform services
to the Corporation by reason of death or Disability, the aggregate
amount of unexercised Options granted hereunder shall thereupon become
fully vested and immediately exercisable and shall expire no later
than one (1) year thereafter unless such Options by their terms expire
before such date. During such one (1) year period, the Optionee, or,
in the case of death, the Optionee's estate or the person or persons
to whom the Option was transferred by will or the laws of descent and
distribution, may exercise any such Options, and if not exercised,
shall expire at the end of such one (1) year period unless such
Options by their terms expire before such date.
(3) If the Optionee ceases to be employed by, or ceases to provide
services to the Corporation by reason of Retirement, the aggregate
amount of unexercised Options granted hereunder shall thereupon become
fully vested and immediately exercisable and shall expire, in the case
of an Incentive Stock Option, no later than three (3) months following
such Retirement, or in the case of a Nonqualifying Stock Option one
(1) year following Retirement, unless, in either case, the Options by
their terms expire prior to such date.
5. Exercise, Payment for and Delivery of Stock
This Option may be exercised by the Optionee or other person then entitled to
exercise it by delivery of a written notice to the Secretary of the Corporation
together with this Option Agreement specifying the number of Options intended to
be exercised and the exercise price and accompanied by payment in full of the
exercise price for the number of Shares with respect to which the Option is
exercised. If the Corporation is required to withhold any federal, state or
local tax as a result of such exercise, the notice shall also be accompanied by
a check payable to the Corporation in payment of the applicable amount required
to be withheld, unless alternate arrangements have been agreed to between the
parties to satisfy any applicable withholding obligations.
Payment for Shares may be made in cash, or with the approval of the Option
Committee (which may be withheld in its sole discretion) with Shares having a
fair market value on the date of exercise equal to the exercise price, or a
combination of cash and Shares. In addition, subject to the approval of the
Option Committee (which may be withheld in its sole discretion), payment may be
effected wholly or partly by monies borrowed from the Corporation pursuant to
the terms of a promissory note, the terms and conditions of which shall be
determined from time to time by the Option Committee. An Optionee may purchase
less than the total numbers of Shares for which Options are then exercisable,
provided, however, that any partial exercise shall not be for less than 100
Shares and shall not include any fractional Shares. No Optionee, legal
representative of such Optionee, as the case may be, shall be, or shall be
deemed to be, the owner of any Shares covered by an Option unless and until
certificates for the Shares are issued to the Optionee or such Optionee's
representative under the Plan.
6. Adjustments.
In the event that there is any change in the Shares of the Corporation arising
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split or combination thereof, the Board of Directors shall make such
adjustments in the aggregate number of Options subject to this Agreement and/or
the price per share of such Options in order to prevent dilution or enlargement
of the Optionee's rights and of the value represented by the Options. Upon any
adjustment in the number or exercise price of Shares subject to an Option, a new
Option may be granted in place of such Option which has been so adjusted. In the
event of a dissolution or liquidation of the Corporation or a merger,
consolidation, sale of all or substantially all of the Corporation's assets, or
other corporate reorganization in which the Corporation is not the surviving
corporation, or any merger in which the Corporation is the surviving corporation
but the holders of Shares receive securities of another corporation, outstanding
Options shall terminate, provided that the holder of each Option shall, in such
event, if no provision has been made for the substitution of a new option for
such outstanding option, have the right immediately prior to such event to
exercise the holder's Options in whole or in part without regard to the date on
which the Options otherwise would be first exercisable.
7. Compliance with Laws and Regulations.
By accepting this Option, the Optionee represents and agrees for himself and his
transferees by will or the laws of descent and distribution that, unless a
registration statement under Securities Act of 1933 is in effect as to Shares
purchased upon any exercise of this Option, (a) any and all Shares so purchased
shall be acquired for his personal account and not with a view to or for sale in
connection with distribution, and (b) each notice of exercise of all or any
portion of this Option shall, if the Option Committee so requests, be
accompanied by a representation and warranty in writing, signed by the person
entitled to exercise the same, that the Shares are being so acquired in good
faith for his or her personal account and not with a view to or for sale in
connection with any distribution.
No certificates for Shares purchased upon exercise of this Option shall be
issued and delivered unless and until, in the opinion of legal counsel for the
Corporation, such securities may be issued and delivered without causing the
Corporation to be in violation of or incur any liability under any federal,
state or other securities law or any other requirement of law or of any
regulatory body having jurisdiction over the Corporation. Without limiting the
generality of the foregoing, the Optionee acknowledges and understands that the
Shares subject to the Options granted hereunder have not been registered under
the Securities Act of 1933, as amended, or under the blue sky or securities laws
of any state, that the Corporation has no obligation to so register any of such
Shares and that, except to the extent the Shares are so registered, the Shares
will be restricted securities and may be sold, transferred or otherwise disposed
of only if an exemption from such registration is available. Unless the Shares
have been so registered, there shall be noted conspicuously upon each stock
certificate representing such Shares, the following statement:
The shares of stock represented by this certificate have not
been Registered under the Securities Act of 1933 (1933 Act)
nor under any applicable state securities act and may not be
offered or sold except pursuant to (i) an effective
registration statement relating to such stock under the 1933
Act and any applicable state securities act, (ii) to the
extent applicable, Rule 144 under the 1933 Act (or any similar
rule under such act or acts relating to the disposition of
securities), or (iii) an opinion of counsel satisfactory to
the Corporation that an exemption from registration under Act
or Acts is available.
8. Invalidity; Severability.
If any clause or provision of this Agreement shall be adjudged invalid, the same
shall not affect the validity of any other clause or provision of this
Agreement, or of any other document pertaining to the subject matter thereof, or
constitute by reason thereof, any claim or cause of action in favor of Optionee
as against the Corporation. In addition, the provisions of this Agreement shall
be read and construed and shall have effect as separate, severable and
independent provisions or restrictions, and shall be enforceable accordingly.
9. Entire Agreement; No Waiver; Remedies.
This Agreement contains the entire agreement of the parties and incorporates and
supersedes any and all prior or contemporaneous oral or written agreements with
respect to the matters referred to in it. No waiver of any breach or default
hereunder shall be considered valid unless in writing and signed by the party
giving such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature. No failure on the
part of any party to exercise, and no delay in exercising any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; no waiver
whatever shall be valid unless in writing signed by the party or parties to be
charged and then only to the extent specifically set forth in such writing. All
remedies, rights, powers and privileges, either under this Agreement or by law
or otherwise afforded the parties to this Agreement, shall be cumulative and
shall not be exclusive of any remedies, rights, powers and privileges provided
by law.
10. Successors and Assigns.
The rights and obligations of the Corporation under this Agreement shall inure
to the benefit of and shall be binding upon the successors and assigns of the
Corporation.
11. Headings; Counterparts; Governing Law.
The headings in this Agreement are for convenience of reference only and are not
intended to define or limit the contents of any section or paragraph. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement shall in all respects be governed by the laws
(without reference to conflicts of laws principles) of the State of Nevada
applicable to contracts made and performed within the State of Nevada.
12. Execution.
(1) The grant of the Option hereunder shall be binding and effective only
if this Agreement is duly executed by or on behalf of the Corporation
and by the Optionee, and a signed copy is returned to the Corporation.
(2) The Optionee acknowledges that no assurances or representations are
made by the Corporation as to the present or future market value of
the Shares or as to the business, affairs, financial condition or
prospects of the Corporation.
13. Governing Provisions.
In the event of any conflict between the terms and provisions contained in this
Agreement and the terms and provisions contained in the Plan, the terms,
provisions and conditions set forth in the Plan shall govern.
14. Optionee Bound by Plan.
OPTIONEE ACKNOWLEDGES RECEIPT OF THE ATTACHED COPY OF THE NORTHERN OSTRICH CORP.
2003 STOCK OPTION PLAN AND AGREES TO BE BOUND BY ALL THE TERMS AND PROVISIONS
THEREOF.
AGREED AND ACCEPTED: NORTHERN OSTRICH CORP.
X X
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Optionee
Name:
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Title:
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EXHIBIT A
TO
AGREEMENT dated as of _____________(date)
PURSUANT TO THE NORTHERN OSTRICH CORP.
2003
STOCK OPTION PLAN
with
___________________(the OPTIONEE)
The Option awarded under this Agreement is intended to be a
Nonqualifying Stock Option. _______(check if applicable)
The Option awarded under this Agreement is intended to qualify
as an Incentive Stock Option pursuant to Section 422 of the Code.
_______(check if applicable)
(a) Number of shares of the Common Stock covered by the Option
________________ Shares
(b) Exercise price per share: $___________
(c) Vesting Schedule:
Number of Shares Date
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