EXHIBIT 4.12
NON-QUALIFIED STOCK OPTION AGREEMENT
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AGREEMENT made as of the 15th day of May, 1997 by and between AGRIBIOTECH,
INC., a Nevada corporation, having its principal executive offices at 0000
Xxxxxx Xxxx, Xxxxx X-00, Xxx Xxxxx, XX 00000 ("Grantor"), and Xxxx XxXxxxxx,
with an address at 00000 X.X. Xxxxx Xxxx, Xxxxxx, Xxxxxx 00000 ("Optionee").
W I T N E S S E T H:
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WHEREAS, Grantor and Optionee are entering into a Stock Purchase Agreement
dated May 15, 1997 (the "Stock Purchase Agreement")among the Grantor, the
Optionee, Xxxx Xxxx, X.X. Xxxxxxxxxx & Sons ("EFB") and X.X. Xxxxxxxxxx'x, Inc.
and an Employment Agreement dated May 15, 1997 (the "Employment Agreement"),
among the Grantor, EFB and the Optionee.
NOW, THEREFORE, as part of the consideration under the Stock Purchase
Agreement and the Employment Agreement, the Grantor hereby grants to Optionee
options to purchase common stock of the Grantor, $.001 par value ("Common
Stock"), on the following terms and conditions:
1. Option.
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The Grantor hereby grants to Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase up to an aggregate of three hundred thousand
(300,000) fully paid and non-assessable shares of Common Stock (the "Shares"),
subject to the terms and conditions set forth below.
2. Purchase Price.
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The Grantor shall pay all original issue or transfer taxes on the exercise
of this option and all other fees and expenses necessarily incurred by Grantor
in connection therewith. The purchase price per Share is $3.00, $4.00 and
$5.00, as more particularly set forth in Paragraph 3 below.
3. Exercise of Option.
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(a) The option granted hereby may be exercised as follows: 100,000 of said
options shall become immediately exercisable at a purchase price of $3.00 per
Share and be exercisable until May 14, 2002; 100,000 of said options shall
become exercisable on May 15, 1998 at a purchase price of $4.00 and be
exercisable until May 14, 2003; 100,000 of said options shall become
exercisable on May 15, 1999 at a purchase price of $5.00 per Share and be
exercisable until May 14, 2004.
(b) Optionee shall notify the Grantor in writing in person, by overnight
courier or registered or certified mail, return receipt requested, addressed to
its principal office, as to the number of Shares which Optionee desires to
purchase hereunder, which notice shall be accompanied by payment (by cash,
certified check, promissory notes or shares of Common Stock then owned by
Optionee valued at the closing sale price on the day preceding such tender) of
the option price therefor, as specified in Paragraph 2 above. As soon as
practicable thereafter, Grantor shall, at its principal office, tender to
Optionee certificates issued in Optionee's name evidencing the Shares purchased
by Optionee.
4. Option Conditioned On Continued Service.
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(a) If the employment of Optionee shall be terminated for cause, or if
Optionee leaves such employment voluntarily, the options granted to Optionee
hereunder that have not vested shall expire immediately upon such termination.
If such employment shall terminate otherwise than by reason of death, disability
or for cause, such option may be exercised at any time within ninety days after
such termination, subject to the provisions of subparagraph (c) of this
Paragraph 4.
(b) If Optionee dies (i) while employed by Grantor or a subsidiary or
parent corporation, or (ii) within three (3) months after the termination of
Optionee's employment other than voluntarily by Optionee or for cause, such
option, subject to the provisions of subparagraph (c) of this Paragraph 4, may
be exercised by a legatee or legatees of such option under Optionee's last will
or by Optionee's personal representatives or distributees at any time within one
(1) year after Optionee's death.
(c) An option may not be exercised pursuant to this Paragraph 4 except to
the extent that Optionee was entitled to exercise the option, or any part
thereof, at the time of termination of employment or death, and in any event may
not be exercised after the original expiration date of the option.
5. Divisibility and Non-Assignability of the Options.
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(a) Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than ten thousand (10,000) Shares at any one time, except for the
remaining Shares covered by the option if less than ten thousand (10,000).
(b) Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent and
distribution, and these options, or any of them, shall be exercisable during
Optionee's lifetime only by Optionee.
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6. Stock as Investment.
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By accepting these options, Optionee agrees for Optionee, Optionee's heirs
and legatees that any and all Shares purchased hereunder shall be acquired for
investment and not for sale or distribution, and upon the issuance of any or all
of the Shares Optionee, or Optionee's heirs or legatees receiving the Shares,
shall deliver to Grantor a representation in writing, that the Shares are being
acquired in good faith for investment and not for sale or distribution. Grantor
may place a "stop transfer" order with respect to the Shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate(s)
evidencing the Shares.
7. Restriction on Issuance of Shares.
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Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any option unless (a) the issuance of such
shares has been registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or counsel to Grantor shall have given an
opinion that such registration is not required; (b) approval, to the extent
required, shall have been obtained from any state regulatory body having
jurisdiction thereof; and (c) permission for the listing of such shares, if
required, shall have been given by NASDAQ and any national securities exchange
on which the Common Stock of Grantor is at the time of issuance listed.
8. Adjustments; Merger or Consolidation
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(a) In the event of changes in the outstanding Common Stock of Grantor by
reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of shares as to which the
options may be exercised shall be correspondingly adjusted by Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to stockholders of
Grantor of rights to subscribe for additional shares of Common Stock or other
securities.
(b) Any adjustment in the number of Shares shall apply proportionately to
only the unexercised portion of an option granted hereunder. If fractions of a
share would result from any such adjustment, the adjustment shall be revised to
the next higher whole number of Shares so long as such increase does not result
in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of Grantor or its
subsidiaries.
(c) Notwithstanding anything contained herein to the contrary, a merger or
consolidation in which Grantor is not the surviving corporation, or a sale of
substantially all of Grantor's assets or capital stock shall cause the
unexercised options to terminate automatically, unless otherwise provided by the
Board of Directors.
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9. No Rights in Option Stock.
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Optionee shall have no rights as a shareholder in respect of Shares as to
which the options granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
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This Agreement does not give Optionee any right to continued employment by
Grantor.
11. Binding Effect.
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Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
legal representatives and assigns.
12. Miscellaneous.
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This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By:_____________________________
Xxxxxx X. Xxxxxx, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
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Xxxx XxXxxxxx
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EXERCISE OF OPTION
TO
PURCHASE SHARES
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TO: AgriBioTech, Inc.
The undersigned hereby exercises the within Option for the purchase of
_______ shares according to the terms and conditions thereof and herewith makes
payment of the exercise price in full in accordance with the terms of the Stock
Option Agreement, dated as of May 15, 1997, between AgriBioTech, Inc. and the
undersigned. The undersigned is purchasing such shares for investment purposes
only and not with a view to the sale or distribution thereof, unless such
distribution is registered under the Securities Act of 1933, as amended. Kindly
issue the certificate for such shares in accordance with the instructions given
below.
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Signature
Social Security or Taxpayer I.D. Number: ______________________
Instructions for issuance of stock:
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Name
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Street City State Zip Code
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