Exhibit 4.1
NON-STATUTORY INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of _________, 1997 by and between Level Best
Golf, Inc., a Florida corporation (the "Company"), and ____________
("Optionee").
R E C I T A L
The Board of Directors of the Company (the "Board of Directors") has
authorized the granting to Optionee, for services previously rendered by
Optionee as a consultant to or an employee of the Company, of a non-
qualified stock option to purchase the number of shares of Common Stock of
the Company specified in Paragraph 1 hereof, at the price specified
therein, such option to be for the term and upon the terms and conditions
hereinafter stated.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the undertakings of
the parties hereto contained herein, it is hereby agreed:
1. Number of Shares; Option Price. Pursuant to said action of the Board
of Directors, the Company hereby grants to Optionee, in consideration of
consulting services performed for the benefit of the Company, the option
("Option") to purchase up to _______ shares ("Option Shares") of Common
Stock of the Company, at the exercise price of $____ per share.
2. Term. This Option shall expire four years from the date first written
above.
3. Shares Subject to Exercise. The ______ Options shall vest and be
immediately exercisable, and shall thereafter remain subject to exercise
for the term specified in Paragraph 2 hereof.
4. Method and Time of Exercise. The Option may be exercised by written
notice delivered to the Company stating the number of shares with respect
to which the Option is being exercised, together with a check made payable
to the Company in the amount of the purchase price of such shares plus the
amount of applicable federal, state and local withholding taxes, and the
written statement provided for in Paragraph 10 hereof, if required by such
Paragraph 10; provided, however, with respect to the _________ Options set
forth in paragraph 1 hereof, Optionee shall be entitled to pay the exercise
price against cancellation in full of certain indebtedness owing by the
Company to Optionee for services previously rendered by Optionee as a
consultant to the Company. Not less than 100 shares may be purchased at
any one time unless the number purchased is the total number purchasable
under such Option at the time. Only whole shares may be purchased.
5. Tax Withholding. As a condition to exercise of this Option, the
Company may require the Optionee to pay over to the Company all applicable
federal, state and local taxes which the Company is required to withhold
with respect to the exercise of this Option. At the discretion of the
Company and upon the request of the Optionee, the minimum statutory
withholding tax requirements may be satisfied by the withholding of shares
of Common Stock otherwise issuable to the Optionee upon the exercise of
this Option.
6. Exercise on Termination of Employment. This Option shall not terminate
as a result of the termination of Optionee's services as a consultant to
the Company.
7. Nontransferability. This Option may not be assigned or transferred
except, if applicable, by will or by the laws of descent and distribution,
and may be exercised only by Optionee during Optionee's lifetime and after
Optionee's death, by Optionee's representative or by the person entitled
thereto under Optionee's will or the laws of intestate succession.
8. Optionee Not a Shareholder. Optionee shall have no rights as a
shareholder with respect to the Common Stock of the Company covered by the
Option until the date of issuance of a stock certificate or stock
certificates to him upon exercise of the Option. No adjustment will be
made for dividends or other rights for which the record date is prior to
the date such stock certificate or certificates are issued.
9. No Right to Perform Services. Nothing in this Option shall confer upon
the Optionee any right to perform services for the Company, or shall
interfere with or restrict in any way the rights of the Company to
discharge or terminate Optionee as an independent contractor or consultant
at any time for any reason whatsoever, with or without good cause.
10. Restrictions on Sale of Shares. Optionee represents and agrees that,
upon Optionee's exercise of the Option in whole or part, unless there is in
effect at that time under the Securities Act of 1933 a registration
statement relating to the shares issued to him, he will acquire the shares
issuable upon exercise of this Option for the purpose of investment and not
with a view to their resale or further distribution, and that upon each
exercise thereof Optionee will furnish to the Company a written statement
to such effect, satisfactory to the Company in form and substance.
Optionee agrees that any certificates issued upon exercise of this Option
may bear a legend indicating that their transferability is restricted in
accordance with applicable state or federal securities law. Any person or
persons entitled to exercise this Option under the provisions of Paragraphs
5 and 6 hereof shall, upon each exercise of the Option under circumstances
in which Optionee would be required to furnish such a written statement,
also furnish to the Company a written statement to the same effect,
satisfactory to the Company in form and substance.
11. Registration. On or before thirty days after the date of this
Agreement, the Company shall, at the Company's expense, use its best
efforts to file with the Securities and Exchange Commission ("SEC"), a
registration statement ("Registration Statement") on Form S-8 or other
comparable form, in such form as to comply with applicable federal and
state laws for the purpose of registering or qualifying the Option Shares
for resale by Optionee, and prepare and file with the appropriate state
securities regulatory authorities the documents reasonably necessary to
register or qualify such securities, subject to the ability of the Company
to register or qualify such securities under applicable state laws.
12. Notices. All notices to the Company shall be addressed to the Company
at the principal office of the Company at 00000 00xx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, telephone number: (000) 000-0000 facsimile
(000) 000-0000, and all notices to Optionee shall be addressed to Optionee
at the address and telecopier number of Optionee on file with the Company,
or to such other address and telecopier number as either may designate to
the other in writing. A notice shall be deemed to be duly given if and
when enclosed in a properly addressed sealed envelope deposited, postage
prepaid, with the United States Postal Service and followed by telecopier
to the addressee. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to Optionee
or to the Company (as the case may be).
13. Adjustments. If there is any change in the capitalization of the
Company affecting in any manner the number or kind of outstanding shares of
Common Stock of the Company, whether by stock dividend, stock split,
reclassification or recapitalization of such stock, or because the Company
has merged or consolidated with one or more other corporations (and
provided the Option does not thereby terminate pursuant to Section 2
hereof), then the number and kind of shares then subject to the Option and
the price to be paid therefor shall be appropriately adjusted by the Board
of Directors; provided, however, that in no event shall any such adjustment
result in the Company's being required to sell or issue any fractional
shares. Any such adjustment shall be made without change in the aggregate
purchase price applicable to the unexercised portion of the Option, but
with an appropriate adjustment to the price of each Share or other unit of
security covered by this Option.
14. Cessation of Corporate Existence. Notwithstanding any other provision
of this Option, upon the dissolution or liquidation of the Company, the
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving
corporation, or the sale of substantially all the assets of the Company or
of more than fifty percent of the then outstanding stock of the Company to
another corporation or other entity, the Option granted hereunder shall
terminate; provided, however, that: (i) each Option for which no option
has been tendered by the surviving corporation in accordance with all of
the terms of provision (ii) immediately below shall, within five days
before the effective date of such dissolution or liquidation, merger or
consolidation or sale of assets in which the Company is not the surviving
corporation or sale of stock, become fully exercisable; or (ii) in its sole
and absolute discretion, the surviving corporation may, but shall not be so
obligated to, tender to any Optionee, an option to purchase shares of the
surviving corporation, and such new option or options shall contain such
terms and provisions as shall be required substantially to preserve the
rights and benefits of this Option.
15. Invalid Provisions. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any applicable law,
such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same extent as
though the invalid or unenforceable provision were not contained herein.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
17. Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the
parties hereto and delivered to the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Level Best Golf, Inc.
By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President
Optionee
/s/ ________________
_________________________
Social Security Number or Employer Identification Number:
____________________
Facsimile number: _______________
