Exhibit 10.7.8
STRATUS SERVICES GROUP, INC.
INCENTIVE STOCK OPTION AGREEMENT
[FOR GRANTS TO EMPLOYEES]
STRATUS SERVICES GROUP, INC. a Delaware corporation (the "Company"),
hereby grants to __________________________(the "Optionee"), an Incentive Stock
Option (the "Option") to purchase a total of _______ shares of the Company's
Common Stock, at the price set forth herein, and subject to the terms,
definitions and provisions of the 2002 Equity Incentive Plan (the "Plan")
adopted by the Company, which is incorporated herein by reference. The terms
defined in the Plan shall have the same defined meanings herein.
1. NATURE OF THE OPTIONS. The Incentive Stock Option is intended
to qualify as an "incentive stock option" as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"). The shares underlying
the Option are hereinafter referred to as the "Shares".
2. EXERCISE PRICE. The exercise price of the Option is $_____
per share for each share subject to the Option.
3. TERMS OF OPTIONS. This Option is granted in connection with
the Optionee's employment by the Company. Subject to provisions contained
elsewhere in this Agreement, the Option may be exercised cumulatively as set
forth below after the vesting date set forth below, until the day preceding the
tenth anniversary of the date hereof (the "Termination Date"):
VESTING DATE NUMBER OF OPTIONS
------------ -----------------
The Option is subject to earlier termination as provided herein or in
the Plan. The Option may be exercised in whole or in part at any time and from
time to time following the date of grant and prior to the expiration or
termination of the Option.
Except as otherwise provided in the Plan, no installment of the Option
shall be exercisable prior to the vesting of such installment as provided above.
To the extent that any installment of the Option becomes exercisable, it may
thereafter be exercised either in whole or in part at any time prior to the
expiration of the Option.
4. ADMINISTRATION. The Plan is administered by a committee
of the Board (the "Committee" as defined in the Plan). All determinations and
acts of the Committee as to any matters concerning the Plan, including
interpretations or constructions of this Option and of the Plan, shall be
conclusive and binding on the Optionee and any parties claiming through the
Optionee.
5. EXERCISE. Unless the Optionee ceases to be employed by the
Company or a direct or indirect subsidiary thereof, the right of the Optionee to
purchase Shares hereunder, subject to any installment requirements set forth
above, may be exercised in whole or in part at any time after the accrual of
such respective installment and prior to the Termination Date, except as
otherwise provided herein. The Option may not be exercised for a fraction of a
share. Notwithstanding the foregoing, the Optionee's right to exercise the
Option shall be limited by the number of shares of Company Common Stock
available for issuance pursuant to Awards granted under the Plan.
1
6. NOTICE OF EXERCISE. The Option shall be exercisable by written
notice (the "Notice") which shall state the election to exercise the Option and
the number of Shares in respect of which the Option is being exercised, and such
other representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Chief Financial Officer
of the Company. The written notice shall be accompanied by payment in full of
the exercise price in cash or cashier's check made payable to the Company, or in
any other manner approved by the Committee.
7. DELIVERY OF CERTIFICATES. As soon as practicable after receipt
of the Notice and payment, and subject to the next two paragraphs, the Company
shall, without transfer or issue tax or other incidental expense to the
Optionee, deliver to the Optionee a certificate or certificates for the shares
of Common Stock so purchased. Such delivery shall be made (a) at the offices of
the Company at 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000; (b) at such other
place as may be mutually acceptable to the Company and the Optionee, or (c) by
certified mail addressed to the Optionee at the Optionee's address shown in the
records of the Company.
8. WITHHOLDING. The Company shall have the right to withhold an
appropriate number of shares of Common Stock (based on the fair market value
thereof on the date of exercise) for payment of taxes required by law or to take
such other action as may be necessary in the opinion of the Company to satisfy
all tax withholding obligations.
9. COMPLIANCE WITH LAWS. The Company may postpone the time of
delivery of certificate(s) for shares of Common Stock for such additional time
as the Company shall deem necessary or desirable to enable it to comply with the
requirements of any securities exchange upon which the Common Stock may be
listed, or the requirements of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, any rules or regulations of the
Securities and Exchange Commission promulgated thereunder, or any applicable
state laws relating to the authorization, issuance or sale of securities.
10. NON-TRANSFERABLE OPTIONS. During the Optionee's lifetime, this
Option shall be exercisable only by the Optionee and neither this Option nor any
right hereunder may be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner otherwise than by will or by the laws of descent or
distribution. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of Optionee.
11. FAILURE TO PAY. If, upon tender of delivery thereof, the
Optionee fails to accept delivery of and pay or have paid for all or any part of
the number of shares of Common Stock specified in the Notice, the Optionee's
right to exercise this Option with respect to such undelivered and unpaid for
shares may be terminated by the Company.
12. RESTRICTIONS ON TRANSFER OF SHARES UNDERLYING OPTIONS.
The issuance of the Shares upon the exercise of the Option and the transfer or
resale of such Shares shall be subject to such restrictions as are, in the
opinion of the Company's counsel, required to comply with the Securities Act of
1933, as amended (the "Act"), and the rules and regulations promulgated
thereunder, and the certificate(s) representing such shares shall, if it is
deemed advisable by the Company's counsel, bear a legend to such effect.
2
13. NO RIGHTS OF SHAREHOLDER. Neither the Optionee nor any person
or persons entitled to exercise the Optionee's rights under this Option in
accordance herewith shall have any rights to dividends or to Common Stock
subject to this Option, except to the extent that a certificate for such shares
shall have been issued upon the exercise of this Option as provided herein.
14. REGISTRATION ON FORM S-8. The Optionee acknowledges that the
Option may not be exercised until the Company has taken all actions then
required to comply with the Act, and any applicable State Securities laws,
including, without limitation, the filing of a Registration Statement on Form
S-8 which registers the shares issuable upon exercise of the Option under the
Act, and the delivery to the Optionee of such information as may be required
under the Act.
15. NOTICES. Each notice relating to this Option shall be in
writing and delivered in person or by certified mail to the proper address. All
notices to the Company shall be addressed to it at its offices at 000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, attention of the Committee, c/o the
Company's Chief Financial Officer. All notices to the Optionee or other person
or persons then entitled to exercise any rights with respect to this Option
shall be addressed to the Optionee or such other person or persons at the
Optionee's address shown in the records of the Company or the location at which
the Optionee is employed by the Company. Anyone to whom a notice may be given
under this Option may designate a new address by notice to that effect.
16. NO RIGHT TO EMPLOYMENT. Neither the adoption of the Plan nor
the granting of this Option confers on the Optionee any right to continued
employment by the Company (or any of its direct or indirect subsidiaries) or in
any way interferes with or alters any of the Company's (and its direct and
indirect subsidiaries') rights to terminate the employment by the Company of the
Optionee at any time, with or without cause, and without liability therefor.
This Option shall not be deemed a part of the Optionee's regular, recurring
compensation for any purpose, including, without limitation, for the purposes of
any termination indemnity or severance pay law of any jurisdiction.
17. GOVERNING LAW. This Option and all determinations made and
actions taken pursuant hereto, to the extent not otherwise governed by the
Internal Revenue Code of 1986, as amended from time to time, or the securities
laws of the United States, shall be governed by and construed under the laws of
the State of Delaware.
IN WITNESS WHEREOF, STRATUS SERVICES GROUP, INC. has caused this
Option to be executed by its officers as of the _____ day of __________.
STRATUS SERVICES GROUP, INC.
By:______________________________
Name:
Title:
ACCEPTED AND AGREED:
--------------------------
3
