EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Employment Agreement" or "Agreement"),
dated this 1st day of January 2005, is by and between Unicorp, Inc., a Nevada
corporation, Houston, Texas (the "Company"), and Xxxx X. Xxxxx (the "Executive")
an individual.
WHEREAS, the Executive is willing to enter into an agreement with the
Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Term of Agreement; Termination of Prior Agreement. Subject to the terms
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and conditions hereof, the term of employment of the Executive under this
Employment Agreement shall be for the period commencing on January 1, 2005 (the
"Commencement Date") and terminating on December 31, 2005, unless sooner
terminated as provided in accordance with the provisions of Section 5 hereof.
(Such term of this agreement is herein sometimes called the "Retained Term").
2. Employment. As of the Commencement Date, the Company hereby agrees to
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employ the Executive as Executive Vice-President and Chief Financial Officer
("CFO") of the Company with such duties as assigned from time to time by the
Company, and the Executive hereby accepts such employment and agrees to perform
his duties and responsibilities hereunder in accordance with the terms and
conditions hereinafter set forth.
3. Duties and Responsibilities.
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(a) Duties. Executive shall perform such duties as are usually performed by
a CFO with such duties as assigned from time to time by the Company of a
business similar in size and scope as the Company and such other reasonable
additional duties as may be prescribed from time-to-time by the Company's board
of directors which are reasonable and consistent with the Company's operations,
taking into account Executive's expertise and job responsibilities. This
agreement shall survive any job title or responsibility change. All actions of
Executive shall be subject and subordinate to the review and approval of the
board of directors. The board of directors shall be the final and exclusive
arbiter of all policy decisions relative to the Company's business.
(b) Devotion of Time. During the term of this agreement, Executive agrees
to devote the necessary time to the business and affairs of the Company to the
extent necessary to discharge the responsibilities assigned to Executive and to
use reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the term of this Agreement it shall not be a violation
of this Agreement for Executive to manage personal investments or companies in
which personal investments are made.
4. Compensation and Benefits During the Employment Term.
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(a) Salary. Executive will be compensated by the Company at a monthly base
salary of $500.00, from which shall be deducted income tax withholdings, social
security, and other customary Executive deductions in conformity with the
Company's payroll policy in effect.
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(b) Option. The Executive shall receive a non-qualified stock option to
purchase 120,000 shares of Company common stock at an exercise price of $ 1.00
per share, (attached hereto as Attachment "A"), all of which shall be vested
upon execution of this Agreement. The option shall be evidenced by an option
agreement, shall expire in five years, and shall be subject to the terms of the
Company's 2004 Stock Option Plan and such option agreement.
5. Termination Status. The Executive or the Company shall have the right to
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terminate this Employment Agreement at any time and for no stated reason upon
fourteen (14) days written notice. Each party to this Employment Agreement
acknowledges that Executive is an at-will employee of the Company.
6. Revealing of Trade Secrets, etc. Executive acknowledges the interest of
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the Company in maintaining the confidentiality of information related to its
business and shall not at any time during the Employment Term or thereafter,
directly or indirectly, reveal or cause to be revealed to any person or entity
the supplier lists, customer lists or other confidential business information of
the Company; provided, however, that the parties acknowledge that it is not the
intention of this paragraph to include within its subject matter (a) information
not proprietary to the Company, (b) information which is then in the public
domain through no fault of Executive, or (c) information required to be
disclosed by law.
7. Arbitration. If a dispute should arise regarding this Agreement, all
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claims, disputes, controversies, differences or other matters in question
arising out of this relationship shall be settled finally, completely and
conclusively by arbitration of a single arbitrator, which is mutually agreed
upon, in Houston, Texas, in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules"). Arbitration shall be
initiated by written demand. This Agreement to arbitrate shall be specifically
enforceable only in the District Court of Xxxxxx County, Texas. A decision of
the arbitrator shall be final, conclusive and binding on the Company and the
Executive, and judgment may be entered in the District Court of Xxxxxx County,
Texas, for enforcement and other benefits. On appointment, the arbitrator shall
then proceed to decide the arbitration subjects in accordance with the Rules.
Any arbitration held in accordance with this paragraph shall be private and
confidential. The matters submitted for arbitration, the hearings and
proceedings and the arbitration award shall be kept and maintained in strictest
confidence by Executive and the Company and shall not be discussed, disclosed or
communicated to any persons. On request of any party, the record of the
proceeding shall be sealed and may not be disclosed except insofar, and only
insofar, as may be necessary to enforce the award of the arbitrator and any
judgment enforcing an award. The prevailing party shall be entitled to recover
reasonable and necessary attorneys' fees and costs from the non-prevailing
party.
8. Survival. In the event that this Agreement shall be terminated, then
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notwithstanding such termination, the obligations of Executive pursuant to
Section 6 of this Agreement shall survive such termination.
9. Contents of Agreement, Parties in Interest, Assignment, etc. This
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Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Executive hereunder which are of
a personal nature shall neither be assigned nor transferred in whole or in part
by Executive. This Agreement shall not be amended except by a written
instrument duly executed by the parties.
10. Severability; Construction. If any term or provision of this Agreement
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shall be held to be invalid or
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unenforceable for any reason, such term or provision shall be ineffective to the
extent of such invalidity or unenforceability without invalidating the remaining
terms and provisions hereof, and this Agreement shall be construed as if such
invalid or unenforceable term or provision had not been contained herein. The
parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this Agreement.
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11. Notices. Any notice, request, instruction or other document to be given
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hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally; or five (5) days after
dispatch by registered or certified mail, postage prepaid, return receipt
requested; or one (1) day after dispatch by overnight courier service; in each
case, to the party to whom the same is so given or made:
IF TO THE COMPANY ADDRESSED TO:
Unicorp, Inc.
0000 Xxxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
IF TO EXECUTIVE ADDRESSED TO:
Xxxx X. Xxxxx
00000 Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
or to such other address as the one party shall specify to the other party in
writing.
12. Counterparts and Headings. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original and all which
together shall constitute one and the same instrument. All headings are
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
13. Governing Law; Venue. This Agreement shall be construed and enforced in
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accordance with, the laws of the State of Texas, without regard to the conflict
of laws provisions thereof. Venue of any dispute concerning this Agreement
shall be exclusively in Xxxxxx County, Texas.
14. Waiver. The failure of either party to enforce any provision of
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this Agreement shall not be construed as a waiver or limitation of that party's
right to subsequently enforce and compel strict compliance with every provision
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
XXXX X. XXXXX UNICORP, INC.
/s/ Xxxx X. Xxxxx /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Chief Executive Officer
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ATTACHEMENT "A"
UNICORP, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT made effective as of January 1, 2005, between UNICORP, INC.
a Nevada corporation (the "Company"), and Xxxx X. Xxxxx (the "Option Holder")
relating to an option to purchase shares of the Company's common stock, par
value $.001 per share ("Common Stock").
1. Grant of Option. Subject to the terms and conditions of this
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Agreement and the Company's 2004 Stock Option Plan (the "Plan"), the Company
hereby grants to the Option Holder effective as of January 1, 2005, the "Grant
Date") an option (the "Option") to purchase 120,000 shares of Common Stock.
The Option shall be exercisable, in whole or in part, during the Option Period
(as hereinafter defined), vests immediately and are exercisable at a price of
$1.00 per share (the "Option Price"). This Agreement and the purchase of the
shares of Common Stock hereunder is not intended and should not be interpreted
to qualify as an Incentive Stock Option as that term is used in Section 422 of
the Internal Revenue Code of 1986, as it may be amended from time to time (the
"Internal Revenue Code").
2. Method for Exercising the Option. The Option may be exercised in
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whole or in part only by delivery in person or through certified or registered
mail to the Company at its principal office in Houston, Texas (attention:
Corporate Secretary) of written notice (attached hereto as Exhibit A) specifying
the Option that is being exercised and the number of shares of Common Stock with
respect to which the Option is being exercised. The notice must be accompanied
by payment of the total Option Price.
The total Option Price for the Common Stock to be acquired pursuant to the
Option shall be paid in full by any of the following methods or any combination
of the following methods:
(a) In cash or by certified or cashier's check payable to the
order of Unicorp, Inc.;
(b) The delivery to the Company of certificates representing the
number of shares of Common Stock then owned by the Option Holder, the
Designated Value (defined below) of which equals the Option Price of
the Common Stock purchased pursuant to the Option, properly endorsed
for transfer to the Company; provided however, that no Option may be
exercised by delivery to the Company of certificates representing
Common Stock, unless such Common Stock has been held by the Option
Holder for more than six months. (For purposes of this Agreement, the
Designated Value of any shares of Common Stock delivered in payment of
the Option Price upon exercise of the Option shall be the Designated
Value as of the exercise date and the exercise date shall be the day
of delivery of the certificates for the Common Stock used as payment
of the Option Price);
(c) By delivery to the Company of a properly executed notice of
exercise together with irrevocable instructions to a broker to deliver
promptly to the Company, in payment of the Option Price, the amount of
the cash proceeds of the sale of shares of Common Stock or a loan from
the broker to the Option Holder sufficient, in each case, to pay the
Option Price, and in a form satisfactory to the Corporate Secretary;
or
(d) By delivery to the Company of sufficient Options, properly
endorsed for transfer to the Company, having a value sufficient to pay
the Option Price with respect to the other Options that are to be
exercised under this Agreement. The value of each Option to be
surrendered in payment of the
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Option Price shall be determined by subtracting the Option Price from
the Designated Value as of the date of receipt of notice of the
exercise of the Options by the Corporate Secretary of the Company.
Upon such notice to the Corporate Secretary and payment of the total Option
Price, the exercise of the Option shall be deemed to be effective, and a
properly executed certificate or certificates representing the Common Stock so
purchased shall be issued by the Company and delivered to the Option Holder.
For purposes of this Agreement, the designated value ("Designated Value")
of the shares of Common Stock on a given date shall mean: (i) if the Common
Stock is listed or admitted for trading on any national securities exchange or
the National Market System of the National Association of Securities Dealers,
Inc. Automated Quotation System, the last sale price, or if no sale occurred,
the mean between the closing high bid and low asked quotations for such date of
the Common Stock on the principal securities exchange on which shares of the
Common Stock are listed, (ii) if the Common Stock is not traded on any national
securities exchange but is quoted on the National Association of Securities
Dealers, Inc. Automated Operations System, or any similar system of automated
dissemination of quotations or securities prices in common use, the mean between
the closing high bid and low asked quotations for such day of the Common Stock
on such system, (iii) if neither clause (i) nor (ii) is applicable, the mean
between the high bid and low asked quotations for the Common Stock as reported
by the National Quotation Bureau Incorporated if at least two securities dealers
have inserted both bid and asked quotations for shares of the Common Stock on at
least five (5) of the ten (10) preceding days or (iv) if none of the conditions
set forth above is met, the fair market value of shares of Common Stock as
determined by the Board of Directors. Provided, for purposes of determining
"fair market value" of the Common Stock of the Company, such value shall be
determined without regard to any restriction other than a restriction which will
never lapse. In no event shall the fair market value of the Common Stock be
less than its par value.
3. Adjustment of the Option.
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(a) Adjustment by Stock Split, Stock Dividend, etc. If at any
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time the Company increases or decreases the number of its outstanding
shares of Common Stock, or changes in any way the rights and
privileges of its Common Stock, by means of the payment of a stock
dividend or the making of any other distribution of such shares
payable in Common Stock, or through a stock split or subdivision of
shares of Common Stock, or a consolidation or combination of shares of
Common Stock, or through a reclassification or recapitalization
involving the Common Stock, the numbers, rights and privileges of the
shares of Common Stock included in the Option shall be increased,
decreased or changed in like manner as if such shares of Common Stock
had been issued and outstanding, fully paid and non-assessable at the
time of such occurrence.
(b) Dividends Payable in Stock of Another Corporation, etc. If at
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any time the Company pays or makes any dividend or other distribution
upon its Common Stock payable in securities or other property (except
cash or Common Stock), a proportionate part of such securities or
other property shall be set aside and delivered to the Option Holder
upon issuance of the Common Stock purchased at the time of the
exercise of the Option. The securities and other property delivered to
the Option Holder upon exercise of the Option shall be in the same
ratio to the total securities and property set aside for the Option
Holder as the number of shares of Common Stock with respect to which
the Option is then exercised is to the total shares of Common Stock
subject to the Option. Prior to the time that any such securities or
other property are delivered to the Option Holder in accordance with
the foregoing, the Company shall be the owner of such securities or
other property and Option Holder shall not have the right to vote the
securities, receive any dividends payable on such securities, or in
any other respect be treated as the owner. If securities or other
property which have been set aside by the Company in accordance with
this Section 3 are not delivered to the Option Holder because the
Option is not exercised, then such securities or other property shall
remain the property of the Company and shall be dealt with by the
Company as it shall determine in its sole discretion.
(c) Other Changes in Stock. In the event there shall be any
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change, other than as specified in the preceding subsections (a) and
(b) of this Section 3, in the number or kind of outstanding shares of
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Common Stock or of any stock or other securities into which the Common
Stock shall be changed or for which it shall have been exchanged, then
and if the Board of Directors of the Company shall in its discretion
determine that such change equitably requires an adjustment in the
number or kind of shares subject to the Option, such adjustments shall
be made by the Board of Directors and shall be effective for all
purposes as of this Agreement.
(d) Apportionment of Option Price. Upon any occurrence described
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in the preceding subsections (a), (b) and (c) of this Section 3, the
aggregate Option Price for the shares of Common Stock then subject to
the Option shall remain unchanged and shall be apportioned ratably
over the increased or decreased number or changed kinds of securities
or other properties subject to the Option.
4. Change of Control; Termination without Cause; Corporate
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Transactions.
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(a) In the event of a Change of Control (as defined in the Plan), all
outstanding Options, whether exercisable or not, shall
immediately become exercisable in accordance with Article 4.5 of
the Plan.
(b) In the event the Option Holder's employment, position as a
director or consulting agreement with the Company terminates for
reasons other than (i) Option Holder voluntarily ceasing his
employment, position as a director or consulting agreement with
the Company; or, (ii) Option Holder's employment, position as a
director or consulting agreement with the Company being
terminated for Cause; then, in any such event, all outstanding
Options, whether exercisable or not, shall immediately vest and
become exercisable. The term "Cause" is defined as the conviction
of, or the entering of a guilty plea, or no contest plea by
Option Holder for any felony, by a court of competent
jurisdiction; or, the failure or refusal by Option Holder to
competently perform his employment, director or consulting
duties, or conform to policies reasonably established by Company.
(c) If the Company recapitalizes or otherwise changes its capital
structure, or merges, consolidates, sells all of its assets or
dissolves and such transaction is not a Change of Control, then
thereafter upon any exercise of the Option hereunder, the
Optionee shall be entitled to purchase under the Option, in lieu
of the number of shares of Common Stock covered by this Option
then exercisable, the number and class of shares of stock and
securities to which the Optionee would have been entitled
pursuant to the terms of the agreement of merger, consolidation,
sale of assets or dissolution, if, immediately prior to such
agreement of merger, consolidation, sale of assets or
dissolution, the Optionee had been the holder of record of the
number of shares of Common Stock as to which the Option is then
exercisable.
5. Expiration and Termination of the Option. The Option shall expire
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at 5:00 p.m. Houston, Texas, time on December 31, 2009, (the period from the
date of this Agreement to the expiration date is defined as the option period
("Option Period"). In the event of the death of the Option Holder during the
Option Period, the Option shall be exercisable by the Option Holder's estate or
by the person who acquired the right to exercise the Option by bequest or
inheritance during the Option Period and for a period of up to six months
following the death of the Option Holder, if later.
6. Transferability. The Option may not be transferred except by will
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or pursuant to the laws of descent and distribution, and it shall be exercisable
during the Option Holder's life only by him, or in the event of his disability
or incapacity, by his personal representative, and after his death, only by his
estate or by the person who acquired the right to exercise the Option by bequest
or inheritance.
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7. Compliance with Securities Laws. Upon the acquisition of any shares
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pursuant to the exercise of the Option herein granted, Option holder or any
person acting under Section 5 will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to
comply with applicable securities laws or with this Agreement.
8. Legends on Certificates. The Certificates representing the shares
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of Common Stock purchased by exercise of an Option will be stamped or otherwise
imprinted with legends in such form as the Company or its counsel may require
with respect to any applicable restrictions on sale or transfer and the stock
transfer records of the Company will reflect stock-transfer instructions with
respect to such shares.
9. Withholding.
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(a) Arrangement for Withholding. The Option Holder hereby agrees
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to make appropriate arrangements with the Company to provide for the
amount of tax withholding, if any, under applicable federal and state
income tax laws resulting from the exercise of the Option. If such
arrangements are not made, the Company may refuse to issue any Common
Stock to the Option Holder.
(b) Withholding Election. The Option Holder may elect to pay all
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such amounts of tax withholding, or any part thereof, by electing to
transfer to the Company, or to have the Company withhold from shares
otherwise issuable to the Option Holder, shares of Common Stock having
a value equal to the amount required to be withheld or such lesser
amount as may be elected by the Option Holder. All elections shall be
subject to the approval or disapproval of the Board of Directors. The
value of shares of Common Stock to be withheld shall be based on the
Designated Value of the Common Stock on the date that the amount of
tax to be withheld is to be determined (the "Tax Date"). Any such
election by the Option Holder to have shares of Common Stock withheld
for this purpose will be subject to the following restrictions:
(i) All elections must be made prior to the Tax Date.
(ii) All elections shall be irrevocable.
(iii) If the Option Holder is an officer or director of the
Company within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, ("Section 16"), the Option
Holder must satisfy the requirements of such Section 16 and any
applicable rules thereunder with respect to the use of Common
Stock as consideration to satisfy such tax withholding
obligation.
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10. Miscellaneous.
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(a) Notices. Any notice required or permitted to be given under
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this Agreement shall be in writing and shall be given by first class
registered or certified mail, postage prepaid or by personal delivery
to the appropriate party, addressed:
(i) If to the Company, to the Company at its principal place
of business (as of the date hereof, 0000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000, telephone (000) 000-0000) (Attention:
Corporate Secretary) or at such other address as may have been
furnished to the Option Holder in writing by the Company; or
(ii) If to the Option Holder, to the Option Holder at his
address on file with the Company or at such other address as may
have been furnished to the Company by the Option Holder.
Any such notice shall be deemed to have been given as of the
fourth day after deposit in the United States Postal Service, postage
prepaid, properly addressed as set forth above, in the case of mailed
notice, or as of the date delivered in the case of personal delivery.
(b) Amendment. The Board of Directors may make any adjustment in
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the Option Price, the number of shares of Common Stock subject to, or
the terms of the Option by amendment or by substitution of an
outstanding Option. Such amendment or substitution may result in terms
and conditions (including Option Price, the number of shares of Common
Stock covered, Vesting Schedule or Option Period) that differ from the
terms and conditions of this Option. The Board of Directors may not,
however, adversely affect the rights of the Option Holder without the
consent of the Option Holder. If such action is effective by
amendment, the effective date of such amendment will be the date of
the original grant of this Option. Except as provided herein, this
Agreement may not be amended or otherwise modified unless evidenced in
writing and signed by the Company and the Option Holder.
(c) Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and each
other provision of this Agreement shall be several and enforceable to
the extent permitted by law.
(d) Waiver. Any provision contained in this Agreement may be
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waived, either generally or in any particular instance, by the
Company.
(e) Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the Company and the Option Holder and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
(f) Rights to Employment. Nothing contained in this Agreement
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shall be construed as giving the Option Holder any right to be
retained in the employ of the Company and this Agreement is limited
solely to governing the rights and obligations of the Option Holder
with respect to the Common Stock and the Option.
(g) Gender and Number. Except when otherwise indicated by the
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context, the masculine gender shall also include the feminine
gender, and the definition of any term herein in the singular
shall also include the plural.
(h) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Texas without
giving effect to the conflicts of law provisions thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
UNICORP, INC.
By:
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Xxxxx Xxxxx, Chief Executive Officer
OPTION HOLDER
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Xxxx X. Xxxxx
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EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Stock Options]
The undersigned registered owner of this Stock Option irrevocably exercises
the Stock Option for the purchase of _______________ shares of Common Stock of
Unicorp, Inc. (the "Company") and herewith makes payment therefor in cash or by
check or bank draft made payable to the Company, all at the price and on the
terms and conditions specified in this Stock Option Agreement and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to __________________ whose address is ___________________________
and, if such shares of Common Stock shall not include all of the shares of
Common Stock issuable as provided in this Stock Option, that a new Stock Option
of like tenor and date for the balance of the shares of Common Stock issuable
hereunder be delivered to the undersigned.
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(Name of Registered Owner)
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(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip Code)
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(Social Security Number)
NOTICE: The signature on this subscription must correspond with the
name as written upon the face of the within Stock Option Agreement in every
particular, without alteration or enlargement or any change whatsoever.
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