1
EXHIBIT 10.2
CLEAR HOLDINGS, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Option Agreement") made and
entered into this __________ day of _______________, _____ by and between Clear
Holdings, Inc., a Georgia corporation (the "Company") and
__________________________ ("Eligible Employee").
W I T N E S S E T H:
In connection with the Plan of Reorganization of Clear Communications
Group, Inc. ("Clear Communications"), dated as of July 10, 1998, whereby Clear
Holdings, Inc. (the "Company") issued, on a one-for-one basis, shares of its
$.0001 par value per share common stock ("Stock") for all of the outstanding
shares of Clear Communications' $.0001 par value per share common stock, the
Clear Communications Group, Inc. 1997 Stock Option Plan (the "1997 Plan") was
assumed by Clear Holdings, Inc. pursuant to Section 8(i) of the 1997 Plan. On
August 12, 1998, the 1997 Plan was restated and titled the Clear Holdings, Inc.
Amended and Restated 1998 Stock Option Plan (the "Plan"). A copy of the Plan is
attached hereto as Exhibit "A" and incorporated herein by reference. Pursuant to
the terms of the Plan, the Board of Directors or its designated committee has
selected Eligible Employee to participate in the Plan and desires to grant to
Eligible Employee certain incentive stock options to purchase shares of Stock,
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises, agreements and
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. INCORPORATION OF PLAN PROVISIONS
This Option Agreement is subject to and is to be construed in all
respects in a manner which is consistent with the terms of the Plan, the
provisions of which are hereby incorporated by reference into this Option
Agreement. Eligible Employee acknowledges receipt of a copy of the Plan prior to
the execution of this Agreement. Unless specifically provided otherwise, all
terms used in this Option Agreement shall have the same meaning as in the Plan.
2. GRANT OF OPTION
Subject to the further terms and conditions of this Option Agreement,
Eligible Employee is hereby granted a stock option to purchase __________ shares
of Stock, effective as of the date first written above. This stock option is
intended to be an Incentive Stock Option as provided in ss. 422 of the Internal
Revenue Code.
3. MARKET PRICE OF STOCK
2
The Market Price per share of Stock as of the date this stock option is
granted is $__________.
4. EXERCISE PRICE
The Board of Directors has determined that the price for each share of
Stock purchased under this Option Agreement shall be $__________ (the "Exercise
Price").
5. EXPIRATION OF OPTIONS
The option to acquire Stock pursuant to this Option Agreement shall
expire, to the extent not previously fully exercised, upon the first to occur of
the following:
(a) ____________ (the 10th anniversary of the date of grant of the
option);
(b) As to any option or unexercised portion thereof which was
otherwise exercisable on the date of termination of
Employment;
(i) The date which is three (3) months following the date
on which Eligible Employee ceases his employment with
the Company or any subsidiary of the Company,
otherwise than as a result of Eligible Employee's
death or permanent and total disability, but in no
event after the term provided in paragraph (a) of
this Article 5.
(ii) The date which is the first anniversary of the date
upon which Eligible Employee ceases to be employed by
the Company, or any subsidiary of the Company, by
reason of Eligible Employee's death or permanent and
total disability but in no event after the date
provided in paragraph (a) of this Article 5;
(c) As to any options or portion thereof that were not exercisable
on the date Eligible Employee ceases Employment with the
Company by reason of death or total disability, and which
become exercisable thereafter in the discretion of the Board
of Directors, the date which is one (1) year following such
termination but in no event after the date provided in
paragraph (a) of this Article 5;
6. EXERCISE OF OPTION
Unless options hereunder shall earlier lapse or expire pursuant to
Article 5 hereof, the option to acquire the aggregate number of shares subject
to this Option Agreement may be first exercised on the dates and with respect to
the aggregate number of shares subject to this Option Agreement as follows:
2
3
(i) as of ____________, 1999, ________ shares;
(ii) as of ____________, 2000, an additional __________
shares;
(iii) as of ____________, 2001, an additional __________
shares;
(iv) as of ____________, 2002, an additional __________
shares; and
(v) as of ____________, 2003, an additional __________
shares.
To the extent such options become vested in accordance with the
foregoing, Eligible Employee may exercise this stock option, in whole or part,
from time to time. The option exercise price may be paid by Eligible Employee
either in cash or by surrender of other shares of the Stock held by Eligible
Employee for at least six months or a combination of cash and Stock.
7. MANNER OF EXERCISE
This stock option may be exercised, subject to the restrictions
contained in Article 8 of the Plan, by written notice to the Secretary of the
Company specifying the number of shares to be purchased and signed by Eligible
Employee or such other person who may be entitled to acquire Stock under this
Option Agreement. If any such notice is signed by a person other than Eligible
Employee, such person shall also provide such other information and
documentation as the Secretary of the Company may reasonably require to assure
that such person is entitled to acquire Stock under the terms of the Plan and
this Option Agreement.
After receipt of the notice and any other assurances requested by the
Company under this Article 7, and upon receipt of the full option price, the
Company shall issue to the person giving notice of exercise under this Option
Agreement the number of shares specified in such notice.
8. PLAN TO CONTROL
The Plan is incorporated in this Option Agreement by this reference.
Any question of interpretation or application of the Plan or this Option
Agreement shall be resolved by the Board of Directors or its designated
committee, and such determination shall be final and binding on the Company and
Eligible Employee. In the event of any conflict between the provisions of the
Plan and the provisions of this Option Agreement, the Plan shall control.
9. BINDING EFFECT
This Option Agreement shall bind and inure to the benefit of the
parties hereto, the successors and assigns of the Company and the person to whom
the rights of Eligible Employee are transferred by will or the laws of descent
and distribution.
10. RESTRICTIONS ON TRANSFERABILITY
3
4
The stock option granted hereunder shall not be transferable by
Eligible Employee otherwise than by will or by the laws of descent and
distribution, and such stock option shall be exercisable during Eligible
Employee's lifetime only by Eligible Employee.
4
5
11. FURTHER RESTRICTIONS ON EXERCISE AND SALE OF STOCK
Eligible Employee acknowledges and understands that the Stock subject
to this Option Agreement is not registered under the Federal Securities Act of
1933, as amended ("Federal Act") or under the Georgia Securities Act of 1973, as
amended (the "State Act"). Each option shall be subject to the requirement that
if at any time the Board of Directors shall determine, in its discretion, that
the listing, registration or qualification of the shares subject to such option
upon any securities exchange or under any state or federal law, or the consent
or approval of any government regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such option or the issue or
purchase of shares thereunder, such option may not be exercised in whole or in
part unless such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Board of Directors. The costs of any such listing, registration, qualification,
consent or approval shall be paid by the Company. Alternatively, the Company
shall not permit any exercise of this stock option unless it receives such
representations, factual assurances, and legal opinions as it may deem necessary
to determine and document the availability of an exemption from registration
under both the Federal Act and the State act with respect to any particular
issuance of shares under this Option Agreement. Further, the Board of Directors
shall require that Stock issued in respect of any exercise of this stock option
shall bear such restrictions on further transfer as shall be necessary to insure
the availability of any exemption so claimed.
12. RECAPITALIZATION
In the event that dividends are payable in Stock or in the event there
are splits, subdivisions or consolidations of shares of Stock, the number of
shares deliverable upon the exercise of any Option granted pursuant to this
Option Agreement and the exercise price with respect to such Option shall each
be increased or decreased proportionately, as the case may be, without change in
the aggregate purchase price, as determined to be appropriate by the Board of
Directors or its designated committee.
13. REORGANIZATION
In case the Company is merged or consolidated with another corporation
and the Company is not the surviving corporation, or in the case of the sale of
all or substantially all of the assets of the Company, or in case of a
dissolution or liquidation of the Company, or in the case of a sale or exchange
of eighty percent (80%) or more of the outstanding stock of the Company by the
shareholders of the Company, the Board of Directors of the Company or its
designated committee shall upon written notice to Eligible Employee provide that
the Option (including the shares not then exercisable) must be exercised within
thirty (30) days of the date of such notice or it will be terminated.
Notwithstanding anything in this Option Agreement or the Plan to the contrary,
nothing shall extend Eligible Employee's right to exercise this Option after the
expiration of ten (10) years from the date it is granted.
5
6
14. GOVERNING LAW
This Option Agreement shall be interpreted and construed according to
and governed by the laws of the State of Georgia.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
executed by a duly authorized officer of the Company, and Eligible Employee has
executed this Option Agreement as of the date first written above.
CLEAR HOLDINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"ELIGIBLE EMPLOYEE"
-----------------------------------------
Name:
6
