Exhibit 10.13
STOCK OPTION NO. ___
XXXXXXXX.XXX
STOCK OPTION AGREEMENT
2004 STOCK INCENTIVE PLAN
This Stock Option Agreement dated this _____ day of _______________,
20___ ("Award Agreement"), is entered into by and between _______________ (the
"Participant") and XxxxXxxx.xxx (the "Company"), a Nevada corporation.
WHEREAS, the Company has adopted the 2004 Stock Incentive Plan (the
"Plan") administered by the Compensation Committee of the Company's Board of
Directors (the "Committee"); and
WHEREAS, pursuant to the Plan, the Committee has granted an option to
the Participant and the Company and Participant are executing this Award
Agreement to evidence the grant of and terms of such option.
GRANT OF OPTION. The Company hereby grants an option (the "Option") pursuant to
the following terms:
1. Date of Grant: ___________________
2. Number of Shares: ___________________
3. Exercise Price: ___________________
4. Expiration Date: ___________________
5. Vesting:
------------------------------------------------- ---------------------------------------
PERIOD OF EMPLOYMENT VESTED PERCENTAGE
(FROM DATE OF GRANT)
------------------------------------------------- ---------------------------------------
Less than One Year 0%
------------------------------------------------- ---------------------------------------
At Least One Year but Less than Two Years __%
------------------------------------------------- ---------------------------------------
At Least Two Years but Less than Three Years __%
------------------------------------------------- ---------------------------------------
Etc...- _%
------------------------------------------------- ---------------------------------------
[OR]
This option shall vest and be fully exercisable as follows[_____________].
6. Tax Status. The Option is [NOT] intended to qualify as an Incentive
Stock Option pursuant to Section 422 of the Internal Revenue Code of
1986.
ADDITONAL TERMS. The Option and this Award Agreement are subject to the terms
and provisions of Exhibit A hereto and the Plan, and except where the context
clearly indicates otherwise, all capitalized terms used herein and in Exhibit A
shall have the same meaning ascribed to them by the Plan. By executing this
Award Agreement, the Participant agrees to be bound by the terms and provisions
of this Agreement, Exhibit A, the Plan, by the actions of the Committee, and by
the actions of the Board of the Company under the Plan.
IN WITNESS WHEREOF, THE Company and the Participant have executed this
Award Agreement.
COMPANY
By: _________________________
Title: _________________________
PARTICIPANT
__________________________________
__________________________________
Printed Name
Date: __________________________
EXHIBIT A TO XXXXXXXX.XXX
STOCK OPTION AGREEMENT
2004 STOCK INCENTIVE PLAN
1. THIS OPTION MAY, BUT NEED NOT, BE EXERCISED IN INSTALLMENTS.
2. THIS OPTION MAY BE EXERCISED ONLY TO THE EXTENT VESTED.
3. IN THE EVENT OF TERMINATION OF EMPLOYMENT OF PARTICIPANT, THE NUMBER OF
SHARES WHICH MAY BE PURCHASED PURSUANT TO THIS OPTION SHALL BE DETERMINED
IN ACCORDANCE WITH THE TERMS OF THE PLAN. [FOR USE IN EMPLOYEE OPTIONS
ONLY]
4. NOTWITHSTANDING PARAGRAPH 3 THIS OPTION SHALL IMMEDIATELY TERMINATE IN THE
EVENT THE PARTICIPANT ENGAGES, DIRECTLY OR INDIRECTLY, FOR THE BENEFIT OF
THE PARTICIPANT OR OTHERS, IN ANY ACTIVITY, EMPLOYMENT OR BUSINESS DURING
EMPLOYMENT OR WITHIN TWELVE (12) MONTHS AFTER THE DATE OF TERMINATION OR
RETIREMENT WHICH, IN THE SOLE OPINION AND DISCRETION OF THE COMPENSATION
COMMITTEE OR ITS DELEGATE, IS COMPETITIVE WITH THE COMPANY OR ANY OF ITS
SUBSIDIARIES. [FOR USE IN EMPLOYEE OPTIONS ONLY]
5. NOTWITHSTANDING PARAGRAPH 3, THIS OPTION SHALL IMMEDIATELY TERMINATE, IF IN
THE SOLE OPINION AND DISCRETION OF THE COMPENSATION COMMITTEE OR ITS
DELEGATE, THE PARTICIPANT (A) ENGAGES IN A MATERIAL BREACH OF THE COMPANY'S
CODE OF BUSINESS CONDUCT OR SIMILAR POLICY; (B) COMMITS AN ACT OF FRAUD,
EMBEZZLEMENT OR THEFT IN CONNECTION WITH THE PARTICIPANT'S DUTIES OR IN THE
COURSE OF EMPLOYMENT; OR (C) WRONGFULLY DISCLOSES SECRET PROCESSES OR
CONFIDENTIAL INFORMATION OF THE COMPANY OR ITS SUBSIDIARIES. [FOR USE IN
EMPLOYEE OPTIONS ONLY]
6. THIS OPTION MAY NOT UNDER ANY CIRCUMSTANCES BE EXERCISED ON OR AFTER THE
TENTH (10) ANNIVERSARY OF THE GRANT DATE.
7. NOTHING HEREIN CONFERS UPON THE PARTICIPANT ANY RIGHT TO CONTINUE IN THE
EMPLOY OF THE COMPANY OR OF ANY SUBSIDIARY. [FOR USE IN EMPLOYEE OPTIONS
ONLY]
8. THIS OPTION IS NOT TRANSFERABLE OTHERWISE THAN BY WILL OR THE LAWS OF
DESCENT AND DISTRIBUTION AND IS EXERCISABLE DURING THE PARTICIPANT'S
LIFETIME ONLY BY THE PARTICIPANT. IT MAY NOT BE ASSIGNED, TRANSFERRED
(EXCEPT AS AFORESAID), PLEDGED OR HYPOTHECATED IN ANY WAY, WHETHER BY
OPERATION OF LAW OR OTHERWISE, AND SHALL NOT BE SUBJECT TO EXECUTION,
ATTACHMENT, OR SIMILAR PROCESS. ANY ATTEMPT AT ASSIGNMENT, TRANSFER,
PLEDGE, HYPOTHECATION, OR OTHER DISPOSITION OF THIS OPTION CONTRARY TO THE
PROVISIONS HEREOF AND THE LEVY OF ANY ATTACHMENT OR SIMILAR PROCESS UPON
THIS OPTION, SHALL BE NULL AND VOID AND WITHOUT EFFECT.
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EXHIBIT A TO XXXXXXXX.XXX
STOCK OPTION AGREEMENT
2004 STOCK INCENTIVE PLAN
9. THE OPTION MAY BE EXERCISED ONLY BY DELIVERING TO THE SECRETARY OR OTHER
DESIGNATED EMPLOYEE OR AGENT OF THE COMPANY A WRITTEN, ELECTRONIC, OR
TELEPHONIC NOTICE OF EXERCISE, SPECIFYING THE NUMBER OF COMMON SHARES WITH
RESPECT TO WHICH THE OPTION IS THEN BEING EXERCISED, AND BY PAYMENT OF THE
FULL PURCHASE PRICE OF THE SHARES BEING PURCHASED IN ACCORDANCE WITH THE
TERMS OF THE PLAN.
10. THE COMPANY SHALL NOT BE REQUIRED TO ISSUE OR DELIVER ANY SHARES PURCHASED
UPON ANY EXERCISE PENDING COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE
SECURITIES AND OTHER LAWS (INCLUDING ANY REGISTRATION REQUIREMENTS) AND
COMPLIANCE WITH THE RULES AND PRACTICES OF ANY STOCK EXCHANGE UPON WHICH
THE COMPANY'S COMMON SHARES ARE LISTED.
11. IN THE EVENT THERE IS ANY CHANGE IN THE NUMBER OF ISSUED COMMON SHARES OF
THE COMPANY WITHOUT NEW CONSIDERATION TO THE COMPANY (SUCH AS BY STOCK
DIVIDENDS OR STOCK SPLIT-UPS), THEN (I) THE NUMBER OF SHARES AT THE TIME
UNEXERCISED UNDER THIS OPTION SHALL BE CHANGED IN PROPORTION TO SUCH CHANGE
IN ISSUED SHARES; AND (II) THE OPTION PRICE FOR THE UNEXERCISED PORTION OF
THE OPTION SHALL BE ADJUSTED SO THAT THE AGGREGATE CONSIDERATION PAYABLE TO
THE COMPANY UPON THE PURCHASE OF ALL SHARES NOT THERETOFORE PURCHASED SHALL
NOT BE CHANGED.
IF THE OUTSTANDING COMMON SHARES OF THE COMPANY SHALL BE COMBINED, OR
BE CHANGED INTO ANOTHER KIND OF STOCK OF THE COMPANY OR INTO SECURITIES
OF ANOTHER CORPORATION, WHETHER THROUGH RECAPITALIZATION,
REORGANIZATION, SALE, MERGER, CONSOLIDATION, SPIN-OFF, ETC., THE
COMPANY SHALL CAUSE ADEQUATE PROVISION TO BE MADE WHEREBY THE PERSON OR
PERSONS ENTITLED TO EXERCISE THIS OPTION SHALL THEREAFTER BE ENTITLED
TO RECEIVE, UPON DUE EXERCISE OF ANY PORTION OF THE OPTION, THE
SECURITIES WHICH THAT PERSON WOULD HAVE BEEN ENTITLED TO RECEIVE FOR
COMMON SHARES ACQUIRED THROUGH EXERCISE OF THE SAME PORTION OF SUCH
OPTION IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF SUCH
RECAPITALIZATION, REORGANIZATION, SALE, MERGER, CONSOLIDATION,
SPIN-OFF, ETC. IF APPROPRIATE, DUE ADJUSTMENT SHALL BE MADE IN THE PER
SHARE OR PER UNIT PRICE OF THE SECURITIES PURCHASED ON EXERCISE OF THIS
OPTION FOLLOWING SAID RECAPITALIZATION, REORGANIZATION, SALE, MERGER,
CONSOLIDATION, SPIN-OFF, ETC.
12. NEITHER THIS OPTION, SHARES ISSUED UPON ITS EXERCISE, ANY EXCESS OF MARKET
VALUE OVER OPTION PRICE, NOR ANY OTHER RIGHTS, BENEFITS, VALUES OR INTEREST
RESULTING FROM THE GRANTING OF THIS OPTION SHALL BE CONSIDERED AS
COMPENSATION FOR PURPOSES OF ANY PENSION OR RETIREMENT PLAN, INSURANCE
PLAN, INVESTMENT OR STOCK PURCHASE PLAN, OR ANY OTHER EMPLOYEE BENEFIT PLAN
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES.
13. THE GRANT OF A STOCK OPTION UNDER THE PLAN DOES NOT CREATE ANY CONTRACTUAL
OR OTHER RIGHT TO RECEIVE ADDITIONAL STOCK OPTION GRANTS OR OTHER PLAN
BENEFITS IN THE FUTURE. NOTHING CONTAINED IN THIS AWARD AGREEMENT IS
INTENDED TO CREATE OR ENLARGE ANY OTHER CONTRACTUAL OBLIGATIONS BETWEEN THE
COMPANY OR ANY OF ITS SUBSIDIARIES AND THE PARTICIPANT. FUTURE GRANTS, IF
ANY, AND THEIR TERMS AND CONDITIONS, WILL BE AT THE SOLE DISCRETION OF THE
COMPENSATION COMMITTEE. THE PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE
AWARD OF AN OPTION PURSUANT TO THIS AWARD AGREEMENT IS NOT AN ELEMENT OF
THE PARTICIPANT'S COMPENSATION, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT
TO THE DETERMINATION OF ANY SEVERANCE, REDUNDANCY OR RESIGNATION PAYMENTS
OR BENEFITS, AND HAS BEEN AWARDED AT THE COMPANY'S SOLE DISCRETION.
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EXHIBIT A TO XXXXXXXX.XXX
STOCK OPTION AGREEMENT
2004 STOCK INCENTIVE PLAN
14. THIS AWARD AGREEMENT IS INTENDED TO GRANT THE OPTION UPON THE TERMS AND
CONDITIONS AUTHORIZED BY THE PLAN. EACH AND EVERY PROVISION OF THIS AWARD
AGREEMENT SHALL BE ADMINISTERED, INTERPRETED, AND CONSTRUED SO THAT THE
OPTION SHALL CONFORM TO THE PROVISIONS OF THE PLAN. ANY PROVISIONS OF THIS
AWARD AGREEMENT THAT CANNOT BE SO ADMINISTERED, INTERPRETED, OR CONSTRUED
SHALL BE DISREGARDED. IN THE EVENT THAT ANY PROVISION OF THIS AWARD
AGREEMENT IS HELD INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, SUCH PROVISION SHALL BE CONSIDERED SEPARATE AND APART FROM
THE REMAINDER OF THIS AWARD AGREEMENT, WHICH SHALL REMAIN IN FULL FORCE AND
EFFECT. IN THE EVENT THAT ANY PROVISION IS HELD TO BE UNENFORCEABLE FOR
BEING UNDULY BROAD AS WRITTEN, SUCH PROVISION SHALL BE DEEMED AMENDED TO
NARROW ITS APPLICATION TO THE EXTENT NECESSARY TO MAKE THE PROVISION
ENFORCEABLE ACCORDING TO APPLICABLE LAW AND SHALL BE ENFORCED AS AMENDED.
15. IF ANY RESTRICTIONS SET FORTH IN SECTION 4 OF EXHIBIT A OF THIS AWARD
AGREEMENT ARE FOUND BY ANY COURT OF COMPETENT JURISDICTION TO BE
UNENFORCEABLE BECAUSE IT EXTENDS FOR TOO LONG A PERIOD OF TIME OR OVER TOO
GREAT A RANGE OF ACTIVITIES OR IN TOO BROAD A GEOGRAPHIC AREA, IT SHALL BE
INTERPRETED TO EXTEND ONLY OVER THE MAXIMUM PERIOD OF TIME, RANGE OF
ACTIVITIES OR GEOGRAPHIC AREA AS TO WHICH IT MAY BE ENFORCEABLE. THE
INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS AWARD AGREEMENT
SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF
THIS AWARD AGREEMENT.
16. THE PARTICIPANT VOLUNTARILY ACKNOWLEDGES AND CONSENTS TO THE COLLECTION,
USE, PROCESSING AND TRANSFER OF PERSONAL DATA AS DESCRIBED IN THIS SECTION.
THE PARTICIPANT IS NOT OBLIGED TO CONSENT TO SUCH COLLECTION, USE,
PROCESSING AND TRANSFER OF PERSONAL DATA. HOWEVER, FAILURE TO PROVIDE THE
CONSENT MAY AFFECT THE PARTICIPANT'S ABILITY TO PARTICIPATE IN THE PLAN.
THE COMPANY AND ITS SUBSIDIARIES HOLD CERTAIN PERSONAL INFORMATION ABOUT
THE PARTICIPANT, INCLUDING THE PARTICIPANT'S NAME, HOME ADDRESS AND
TELEPHONE NUMBER, DATE OF BIRTH, SOCIAL SECURITY NUMBER OR OTHER EMPLOYEE
IDENTIFICATION NUMBER, SALARY, NATIONALITY, JOB TITLE, ANY SHARES OF STOCK
OR DIRECTORSHIPS HELD IN THE COMPANY AND DETAILS OF ALL OPTIONS OR ANY
OTHER ENTITLEMENT TO SHARES OF STOCK AWARDED, CANCELLED, PURCHASED, VESTED,
UNVESTED OR OUTSTANDING IN THE PARTICIPANT'S FAVOR, FOR THE PURPOSE OF
MANAGING AND ADMINISTERING THE PLAN ("DATA"). THE COMPANY AND ITS
SUBSIDIARIES WILL TRANSFER DATA AMONGST THEMSELVES AS NECESSARY FOR THE
PURPOSE OF IMPLEMENTATION, ADMINISTRATION AND MANAGEMENT OF THE
PARTICIPANT'S PARTICIPATION IN THE PLAN, AND THE COMPANY AND ITS
SUBSIDIARIES MAY EACH FURTHER TRANSFER DATA TO ANY THIRD PARTIES ASSISTING
THE COMPANY IN THE IMPLEMENTATION, ADMINISTRATION AND MANAGEMENT OF THE
PLAN. THESE RECIPIENTS MAY BE LOCATED IN THE EUROPEAN ECONOMIC AREA OR
ELSEWHERE THROUGHOUT THE WORLD, SUCH AS THE UNITED STATES. THE PARTICIPANT
AUTHORIZES THEM TO RECEIVE, POSSESS, USE, RETAIN AND TRANSFER THE DATA, IN
ELECTRONIC OR OTHER FORM, FOR THE PURPOSES OF IMPLEMENTING, ADMINISTERING
AND MANAGING THE PARTICIPANT'S PARTICIPATION IN THE PLAN, INCLUDING ANY
REQUISITE TRANSFER OF SUCH DATA AS MAY BE REQUIRED FOR THE ADMINISTRATION
OF THE PLAN AND THE SUBSEQUENT HOLDING OF SHARES ON THE PARTICIPANT'S
BEHALF BY A BROKER OR OTHER THIRD PARTY WITH WHOM THE PARTICIPANT MAY ELECT
TO DEPOSIT ANY SHARES ACQUIRED PURSUANT TO THE PLAN. THE PARTICIPANT MAY,
AT ANY TIME, REVIEW DATA, REQUIRE ANY NECESSARY AMENDMENTS TO IT OR
WITHDRAW THE CONSENTS HEREIN IN WRITING BY CONTACTING THE COMPANY; HOWEVER,
WITHDRAWING CONSENT MAY AFFECT THE PARTICIPANT'S ABILITY TO PARTICIPATE IN
THE PLAN.
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