NOVUME SOLUTIONS, INC. INCENTIVE STOCK OPTION AWARD AGREEMENT
Exhibit
10.18
THIS
AGREEMENT (this “Agreement”), is made as of this _____
day of __________, between Novume Solutions, Inc., a Delaware
corporation (the “Company”), and ____________________
(the “Employee”). Capitalized terms used herein that
are not otherwise defined shall have the meaning ascribed to them
in the Novume Solutions, Inc. 2017 Equity Award Plan (the
“Plan”). This Agreement and the award contained herein
are subject to the terms and conditions set forth in the Plan,
which are incorporated by reference herein, and the following terms
and conditions:
WITNESSETH:
WHEREAS, the
Employee is an employee of ________________________, an Affiliate
of the Company (in such capacity,
“Employer”);
WHEREAS, the
Company has adopted the Plan in order to promote the interests of
the Company and its stockholders by using equity interests in the
Company to attract, retain and motivate its management and other
eligible persons and to encourage and reward their contributions to
the Company’s and/or its Affiliates’ performance and
profitability; and
WHEREAS, the
Administrator has determined that it is in the best interests of
the Company to grant options to purchase shares of the common
stock, par value $0.0001 per share (“Common Stock”), of
the Company to the Employee, under the Plan, subject to the terms
and conditions of the Plan and as set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the various covenants and agreements
contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Grant of Options.
(a) The Company hereby
grants to the Employee options (the “Options”) to
purchase all or part of an aggregate of __________________
(________) shares of Common Stock (the “Shares”), under
the Plan, effective as of _______________ (the “Date of Grant”).
The Company hereby represents that the Date of Grant is the date on
which the Administrator authorized and approved the grant of the
Options, including the underlying number of Shares and the Exercise
Price (as defined below), or such later date as set forth in the
Administrator’s action authorizing the grant; provided, that, in no event may the
Date of Grant precede the date on which the Employee commenced
providing services pursuant to his employment with the Employer. To
the extent there is a conflict between the terms and conditions of
the Plan and this Agreement, the terms and conditions of this
Agreement shall control.
(b) The Options are
intended to be “incentive stock options”
(“Incentive Stock Options”) within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”), although the Company makes no representation
or guarantee that the Options qualify as Incentive Stock Options.
In accordance with the terms of the Code, to the extent the
aggregate Fair Market Value (as of the respective Dates of Grant)
of the shares of Common Stock underlying all Incentive Stock
Options held by the Employee that become exercisable for the first
time during any calendar year exceeds $100,000 (the “Annual
Limitation”), the Incentive Stock Options will automatically
cease to be treated as Incentive Stock Options and shall be
recognized thereafter as “Non-Qualified Stock Options”
to the extent the Annual Limitation has been exceeded for a
calendar year. Treatment of an Incentive Stock Option as a
Non-Qualified Stock Option is determined by order of grant
beginning with the first Incentive Stock Option which causes the
Annual Limitation to be exceeded in a calendar year. The
application of the Annual
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(c) Limitation may
result in an option being treated in part as an Incentive Stock
Option and in part as a Non-Qualified Stock Option.
2. Exercise Price. The per Share
exercise price of the Options shall be _______ (the “Exercise
Price”), which shall be not less than 100% of the Fair Market
Value on the Date of Grant. If on the Date of Grant, the Employee
owns more than 10% of the voting power of all classes of stock of
the Company or any of its Affiliates, then the per-Share exercise
price shall not be less than 110% of the Fair Market Value per
Share on the Date of Grant. (See Section 5(c)(i)(A) of the
Plan).
3. Term. The term of the Options
shall expire as of the earliest of the following, as
applicable:
(a) the date that is
ten (10) years from the Date of Grant. If on the Date of Grant, the
Employee owns more than 10% of the voting power of all classes of
stock of the Company or any of its Affiliates, then the term of the
Options granted hereunder shall be 5 years from the Date of Grant
or such shorter period as may be determined by the Administrator.
(See Section 5(b) of the Plan).;
(b) in the event the
Employee’s employment as a Qualified Employee is terminated
for any reason (including Retirement) other than (a) for Cause, (b)
the Employee’s death, or (c) the Employee’s Disability,
the date which is three (3) months from the date of such
termination; provided, however, that if the Employee dies within
such three-month period, the date which is twelve (12) months from
the date of such death;
(c) in the event the
Employee’s employment as a Qualified Employee is terminated
for Cause, the date the Employee’s employment is terminated
for Cause; or
(d) in the event that
the Employee’s employment as a Qualified Employee is
terminated as a result of death or Disability, the date which is
twelve (12) months from the date of such termination.
To the
extent that a portion of the Options has not vested prior to the
termination of the Employee’s employment as a Qualified
Employee (including by reason of the Employee’s death,
Disability or
Retirement), the
Employee shall forfeit all rights hereunder with respect to that
unvested portion of the Options as of the date of such
termination.
4. Vesting and Exercise. Subject
to any forfeiture provisions in this Agreement or in the Plan, the
Options shall vest with respect to the Shares covered by them in
accordance with the following schedule, as long as the Employee is
employed on such date as a Qualified Employee:
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Shares
shall vest on _____________;
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Shares
shall vest on _____________; and
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Shares
shall vest on _____________.
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The
Employee may only exercise the Options to the extent that they are
vested; provided, however,
that the Employee may not exercise any portion of the Options prior
to the date that is one year after the Date of Grant.
To the
extent the Options have not previously been forfeited:
(a) if there is a
Change in Control after which this award of Options is continued by
the Company, assumed by the resulting entity (or one of its
affiliates) or substituted by the resulting entity (or one of its
affiliates) into an equivalent award, then the Options will
continue to vest in accordance with the schedule set forth above,
unless otherwise accelerated by the Administrator;
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(b) if there is a
Change in Control after which this award of Options is not
continued, assumed or substituted as described above, then all
unvested Options will immediately vest upon the consummation of
such Change in Control.
5. Method of Exercising
Option.
(a) Subject to the
terms and conditions of this Agreement, the Options may be
exercised by written notice delivered to the Company or its
designated representative in the manner and at the address for
notices set forth in Section 13 hereof. Such notice shall state
that the Options are being exercised thereby and shall specify the
number of Shares for which the Options are being exercised. The
notice shall be signed by the person or persons exercising the
Options and shall be accompanied by payment in full of the Exercise
Price for such Shares being acquired upon the exercise of the
Options. Payment of such Exercise Price may be made by one of the
following methods:
(i) in cash (in the
form of a certified or bank check or such other instrument as the
Administrator may accept);
(ii) in
other Shares owned on the date of exercise of the Options by the
Employee based on the Fair Market Value of such Shares on such date
of exercise;
(iii) in
any combination of (i) and (ii) above;
(iv) by
delivery of a properly executed exercise notice together with such
other documentation as the Administrator and a qualified broker, if
applicable, shall require to effect an exercise of the Options, and
delivery to the Company of the proceeds required to pay the
Exercise Price; or
(v) by requesting that
the Company withhold a number of Shares then issuable upon exercise
of the Options as will have a Fair Market Value equal to the
Exercise Price of the Shares being acquired upon the exercise of
the Options (including the Exercise Price of the Shares to be
withheld).
The
payment of the Exercise Price pursuant to Section 5(a)(iv) or
(v) above may cause
a portion of the Options to be treated as Non-Qualified Stock
Options. If the tender of shares of Common Stock as payment of the
Exercise Price would result in the issuance of fractional shares of
Common Stock, the Company shall instead return the balance in cash
or by check to the Employee. If the Options are exercised by any
person or persons other than the Employee, the notice described in
this Section 5(a)
shall be accompanied by appropriate proof (as determined by the
Administrator) of the right of such person or persons to exercise
the Options under the terms of the Plan and this Agreement. The
Company shall issue and deliver, in the name of the person or
persons exercising the Options, a certificate or certificates
representing such Shares as soon as practicable after notice and
payment are received and the exercise is approved.
(b) The Options may be
exercised in accordance with the terms of the Plan and this
Agreement with respect to any whole number of Shares, but in no
event may any Options be exercised as to fewer than one hundred
(100) Shares at any one time, or the remaining Shares covered by
the Options if less than two hundred (200).
(c) The Employee shall
have no rights of a stockholder with respect to Shares to be
acquired by the exercise of the Options until the date of issuance
of a certificate or certificates representing such Shares. No
adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is
issued, except as provided in Section 7 of this Agreement. All
Shares
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purchased upon the
exercise of the Options as provided herein shall be fully paid and
non-assessable.
(d) The Employee agrees
that no later than the date as of which an amount first becomes
includible in his gross income for federal income tax purposes with
respect to the Options, the Employee shall pay to the Company, or
make arrangements satisfactory to the Company regarding the payment
of, any federal, state, local or foreign taxes of any kind required
by law to be withheld with respect to such amount. Withholding
obligations may be settled with shares of Common Stock, including
Shares that are acquired upon exercise of the Options. The
obligations of the Company under this Agreement and the Plan shall
be conditional on such payment or arrangements, and the Company and
its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to
the Employee.
6. Non-Transferability. The
Options may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or the
laws of descent or distribution. The Options may be exercised,
during the lifetime of the Employee, only by the Employee. Any
attempt to assign, pledge or otherwise transfer the Options or any
right or privilege conferred thereby, contrary to the Plan, or the
sale or levy or similar process upon the rights and privileges
conferred hereby, shall be void.
7. Adjustment upon Changes in
Capitalization. Subject to any required action by
stockholders of the Company, the Administrator, in a manner
consistent with Section 9 of the Plan, shall make or cause to be
made a proportionate adjustment in the number of Shares covered by
each outstanding Award and the number of Shares which have been
authorized for issuance under the Plan but as to which no Awards
have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Award, as well as the price per
Share covered by each such outstanding Award, for any increase or
decrease in the number of issued Shares resulting from a stock
split, reverse stock split, stock dividend, special cash dividend,
combination or reclassification of the Common Stock, or any other
similar increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company; provided,
however, that (i) conversion of any convertible securities of the
Company shall not be deemed to have been “effected without
receipt of consideration”; and (ii) in no event shall the
Exercise Price be adjusted below the par value of a share of Common
Stock, nor shall any fraction of a Share be issued upon the
exercise of the Options. Any securities, awards or rights issued
pursuant to this Section 7 shall be subject to the same
restrictions as the underlying Shares to which they
relate.
8. Conditions upon Issuance of
Options. As a condition to the exercise of the Options, the
Company may require the Employee to (i) represent and warrant at
the time of any such exercise that the Shares are being purchased
or held only for investment and without any present intention to
sell or distribute such Shares if, in the opinion of legal counsel
for the Company, such a representation is required by any relevant
provision of law; and (ii) enter into a lock-up or similar
agreement with the Company with respect to such Shares prohibiting,
for up to ninety (90) days, the disposition of such
Shares.
9. Rights of the Employee. In no
event shall the granting of the Options or the other provisions
hereof or the acceptance of the Options by the Employee interfere
with or limit in any way the right of the Company or any of its
Affiliates to terminate the Employee’s employment or term of
service, as applicable, at any time, nor confer upon the Employee
any right to continue in the employ of the Employer for any period
of time or to continue his or her present or any other rate of
compensation.
10. Return of Property. Upon the
termination of the Employee’s employment for any reason
whatsoever, all property of the Company or any of its Affiliates
that is in the possession of the Employee shall be promptly
returned to the Company, including, without limitation, all
documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists
and other materials that contain Confidential Information (as
defined below) which are in the possession of the
Employee,
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including
all copies thereof. Anything to the contrary notwithstanding, the
Employee shall be entitled to retain (i) papers and other materials
of a personal nature, including, but not limited to, photographs,
correspondence, personal diaries, calendars and rolodexes, personal
files and phone books, (ii)information showing his or her
compensation or relating to reimbursement of expenses, (iii)
information that he or she reasonably believes may be needed for
tax purposes, and (iv) copies of plans, programs and agreements
relating to his or her employment, or termination thereof, with the
Employer.
11. Confidentiality. The Company
and the Employee acknowledge that the services to be performed by
the Employee under this Agreement are unique and extraordinary and,
as a result of his or her employment therefor, the Employee shall
be in possession of Confidential Information relating to the
business practices of the Company and its Affiliates. The term
“Confidential Information” shall mean any and all
information (oral and written) relating to the Company or any of
its Affiliates, or any of their respective activities, or of the
clients, customers, acquisition targets, investment models or
business practices of the Company or any of its Affiliates, other
than such information which (i) is generally available to the
public or within the relevant trade or industry, other than as the
result of breach of the provisions of this Section 11, or (ii) the
Employee is required to disclose under any applicable laws,
regulations or directives of any government agency, tribunal or
authority having jurisdiction in the matter or under subpoena or
other process of law. The Employee shall not, during the period the
Employee is employed by the Employer nor at any time thereafter,
except as may be required in the course of the performance of his
duties hereunder and except with respect to any litigation or
arbitration involving this Agreement, including the enforcement
hereof, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or corporation any Confidential
Information regarding the Company or any of its Affiliates nor of
the clients, customers, acquisition targets or business practices
of the Company or any of its Affiliates acquired by the Employee
during, or as a result of, his employment with the Employer without
the prior written consent of the Company or Affiliate, as
applicable. Without limiting the foregoing, the Employee
understands that the Employee shall be prohibited from
misappropriating any trade secret of the Company or any of its
Affiliates or of the clients or customers of the Company or any of
its Affiliates acquired by the Employee during, or as a result of,
his employment with the Employer at any time during or after the
period the Employee is employed by the Employer.
12. Continuing Obligation. In the
event of any violation of Section 11 of this Agreement, the
Employee acknowledges and agrees that the post-termination
restrictions contained in Section 11 shall be extended by a period
of time equal to the period of such violation, it being the
intention of the parties hereto that the running of the applicable
post-termination restriction period shall be tolled during any
period of such violation.
13. Miscellaneous.
(a) Successors. This
Agreement and all the terms and provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, heirs and successors, except as
expressly herein otherwise provided.
(b) Entire Agreement;
Modification. This Agreement contains the entire understanding
between the parties with respect to the matters referred to herein.
Subject to Section 12 of the Plan, this Agreement may not be
amended by the Administrator without the Employee’s consent
if the amendment shall impair the Employee’s rights under
this Agreement.
(c) Capitalized Terms;
Headings; Pronouns; Governing Law. Capitalized terms used and not
otherwise defined herein are deemed to have the same meanings as in
the Plan. The descriptive headings of the respective sections and
subsections of this Agreement are inserted for convenience of
reference only and shall not be deemed to modify or construe the
provisions which follow them. Any use of any masculine pronoun
shall include the feminine and vice-versa and any use of a
singular, the plural and vice-versa, as the context and facts may
require. The construction and interpretation of this Agreement
shall be
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governed in all
respects by the laws of the State of Delaware.
(d) Notices. Each
notice relating to this Agreement shall be in writing and shall be
sufficiently given if delivered by registered or certified mail, or
by a nationally recognized overnight delivery service, with postage
or charges prepaid, to the address hereinafter provided in this
Section 13. Any such notice or communication given by first-class
mail shall be deemed to have been given two business days after the
date so mailed, and such notice or communication given by overnight
delivery service shall be deemed to have been given one business
day after the date so sent, provided such notice or communication
arrives at its destination. Each notice to the Company shall be
addressed to it at its offices at 00000 Xxxxxxxxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, XX, 00000 (attention: Chief Financial
Officer), with a copy to the General Counsel of the Company or to
such other designee of the Company. Each notice to the Employee
shall be addressed to the Employee at the Employee’s address
shown on the signature page hereof.
(e) Severability.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or the
application thereof to any party or circumstance shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective to the minimal extent of such provision or the
remaining provisions of this Agreement or the application of such
provision to other parties or circumstances.
(f) Counterpart
Execution. This Agreement may be executed in counterparts, each of
which shall constitute an original and all of which, when taken
together, shall constitute the entire document.
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IN WITNESS WHEREOF, the Company has
caused this Agreement to be duly executed by its officer thereunto
duly authorized, and the Employee has executed this Agreement all
as of the day and year first above written.
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By:
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Its:
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EMPLOYEE
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Employee
Address:
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