▇▇▇▇▇▇▇.▇▇▇
NON-QUALIFIED STOCK OPTION
AGREEMENT
AGREEMENT made as of the ___ day of _____, 1999 (the "Grant Date") by and
between ▇▇▇▇▇▇▇.▇▇▇, a Nevada corporation, having its office and principal place
of business located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Corporation") and ______________ residing at __________________ (the "Holder").
W I T N E S S E T H:
WHEREAS, on the Grant Date, the Corporation authorized the grant to the
Holder of an option to purchase an aggregate of _____ shares of the authorized
but unissued Common Stock of the Corporation, $.001 par value (the "Stock"),
pursuant to the Corporation's 1999 Stock Incentive Plan (the "Plan"),
conditioned upon the Holder's acceptance thereof upon the terms and conditions
set forth in this Agreement; and
WHEREAS, the Holder desires to acquire said option on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions herein contained and for other good and valuable consideration, the
parties hereto agree as follows:
1. The Corporation hereby grants to the Holder as a matter of separate
agreement and not in lieu of salary, or any other compensation for services, the
right and option (hereinafter called the "Option"), to purchase all or any part
of an aggregate of _____ shares of Stock on the terms and conditions herein set
forth and in
the Plan, which is incorporated by reference herein. The Holder acknowledges
receipt of a copy of the Plan.
2. This Option shall be deemed to be a non-qualified stock option.
3. The purchase price ("Purchase Price") of each share of Stock subject to
this Option shall be $_____, subject to adjustment as provided in section 7
hereof.
4. This Option shall be exercisable in whole or in part at any time or from
time to time for a period commencing on the first anniversary of the Grant Date
and terminating at the close of business on June 16, 2004 (the "Exercise
Period").
5. The Purchase Price of the shares of Stock as to which the Option is
exercised shall be paid in full at the time of exercise by cash or check payable
to the order of the Corporation. The Holder shall not have any of the rights of
a stockholder with respect to the Stock covered by the Option until the date of
the issuance of a stock certificate to Holder for such shares of Stock.
6. (a) Except as provided in paragraph 6(b), this Option and the rights and
privileges conferred hereby may not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this Option or any
right or privilege conferred hereby, contrary to the provisions hereof, or upon
the levy of any attachment or similar process on the rights and privileges
conferred hereby, this Option
-2-
and the rights and privileges conferred hereby shall immediately become null and
void.
(b) Upon the death of the Holder, any Option granted to him or the
unexercised portion thereof, which was otherwise exercisable on his date of
death, shall terminate unless such Option to the extent exercisable at death is
exercised by the executor or administrator of his estate, within the earlier of
six (6) months following the Holder's death or the date of the expiration of the
Option.
(c) The Corporation shall be obligated to sell and issue Stock pursuant to
this Option and the Plan and in accordance with the terms thereof but not before
the Stock with respect to which the Option is being exercised is effectively
registered or the sale thereof is exempt from registration under the Securities
Act of 1933, as amended (the "Act"), in the opinion of counsel for the
Corporation.
(d) The Board of Directors of the Corporation or the Corporation's Stock
Incentive Committee (the "Committee"), as the case may be, may require, as a
condition to the sale of Stock on the exercise of any Option, that the person
exercising such Option give to the Corporation such documents including such
appropriate investment representations as may be required by counsel for the
Corporation and such additional agreements and documents as the Board of
Directors or the Committee, as the case may be, shall determine to be in the
best interests of the Corporation.
7. (a) If the outstanding shares of Stock of the Corporation are increased,
decreased, changed into or exchanged for
-3-
a different number or kind of stock or securities of the Corporation or stock of
a different par value or without par value, through reorganization,
recapitalization, reclassification, stock dividend, stock split, forward or
reverse stock split or otherwise, an appropriate and proportionate adjustment
shall be made in the maximum number and/or kind of securities allocated to this
Option, without change in the aggregate purchase price applicable to the
unexercised portion of the outstanding Options, but with a corresponding
adjustment in the price for each share of Stock or other unit of any security
covered by this Option.
(b) Adjustments under this section 7 or any other adjustment in the terms
of this Agreement made in accordance with the terms of the Plan as a result of a
merger, consolidation, sale of substantially all of the Corporation's assets or
similar transaction affecting the Corporation as specified in section 3 of the
Plan, shall be made by the Board of Directors, whose determination as to what
adjustments shall be made, and the extent thereof, shall be final binding and
conclusive. No fractional shares of Stock shall be issued under the Plan or any
such adjustment.
8. Anything in this Agreement to the contrary notwithstanding, the Holder
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Stock acquired by him upon exercise of the Option hereunder without
registration under the Act, or in the event that they are not so registered,
unless (a) an exemption from the Act is available thereunder and (b) the Holder
has furnished the Corporation with notice of such
-4-
proposed transfer, and the Corporation's legal counsel, in its opinion, shall
deem such proposed transfer to be so exempt, or the Holder has furnished the
Corporation with notice of such proposed transfer, together with an opinion of
counsel reasonably satisfactory to the Corporation or its legal counsel, that in
such counsel's opinion such proposed transfer shall be so exempt.
9. (a) The Corporation may place stop transfer orders with its transfer
agent against the transfer of the Stock issuable under the Option in the absence
of registration of the Stock under the Act.
(b) The certificates evidencing shares of Stock to be issued upon the
exercise of the Option may bear the following or substantially similar legends :
"The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares may not be sold or
transferred in the absence of such registration or an exemption
therefrom under said Act."
"The shares represented by this certificate have been acquired
pursuant to an option agreement dated as of June 17, 1999, a copy of
which is on file with the Corporation, and may not be transferred,
pledged or disposed of except in accordance with the terms and
conditions thereof."
10. Subject to the terms and conditions of this Agreement, the Option may
be exercised with respect to all or any portion of the Stock subject hereto at
any time and from time to time to the extent determined under Section 6 hereof,
by the delivery to the Corporation, at its principal place of business of (a)
the written Notice of Exercise in the form attached hereto as Exhibit A, which
-5-
is incorporated herein by reference, specifying the number of shares of Stock
with respect to which the Option is being exercised and signed by the person
exercising the Option as provided herein, (b) payment of the Purchase Price and
(c) payment of any withholding tax that the Corporation may be required to
withhold as a result of exercises of the Option by the Holder. Subject to the
provisions of the Plan, the Corporation shall issue and deliver a certificate or
certificates representing said Stock as soon as practicable after the notice and
payment is so received. The certificate or certificates for the Stock as to
which the Option shall have been so exercised shall be registered in the name of
the person or persons so exercising the Option, and shall be delivered as
aforesaid to or upon written order of the person or persons exercising the
Option. In the event the Option is being exercised pursuant to the Plan by any
person or persons other than the Holder, the notice shall be accompanied by
appropriate proof of the right of such person or persons to exercise the Option.
11. In the event of a conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of the Plan shall in all respects
be controlling.
12. All offers, acceptances, notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid to the parties at their respective addresses set forth herein,
or to such other address as either shall have specified by notice in writing
-6-
to the other. Same shall be deemed given hereunder when so delivered or
received, as the case may be.
13. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
14. This Agreement constitutes the entire Agreement between the parties
with respect to the subject matter hereof.
15. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors and assigns and representatives. Nothing in this Agreement, expressed
or implied, is intended to confer on any person other than the parties hereto
and as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
day and year first above written.
▇▇▇▇▇▇▇.▇▇▇
By:__________________________
Name:
Title:
_____________________________
, Holder
-7-
EXHIBIT A
NOTICE OF EXERCISE OF
▇▇▇▇▇▇▇.▇▇▇ NON-QUALIFIED STOCK OPTION
TO PURCHASE COMMON STOCK OF
▇▇▇▇▇▇▇.▇▇▇
Name __________________________
Address _______________________
_______________________________
Date __________________________
▇▇▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Re: Exercise of ▇▇▇▇▇▇▇.▇▇▇
Stock Option
---------------------------
Gentlemen:
Subject to acceptance hereof in writing by ▇▇▇▇▇▇▇.▇▇▇ (the "Company")
pursuant to the provisions of the ▇▇▇▇▇▇▇.▇▇▇ 1999 Stock Option Plan, I hereby
elect to exercise options granted to me to purchase ________ shares of $.001 par
value common stock of the Company (the "Common Stock") under the ▇▇▇▇▇▇▇.▇▇▇
Non-Qualified Stock Option Agreement dated as of June 17, 1999 (the
"Agreement"), at $2.00 per share (subject to adjustment as provided in the
Agreement).
Enclosed is a check in the amount of $_________, representing the full
purchase price, payable to the order of ▇▇▇▇▇▇▇.▇▇▇. If applicable, I have also
enclosed a check payable to ▇▇▇▇▇▇▇.▇▇▇ representing payment of applicable
withholding taxes.
As soon as the Stock Certificate is registered in my name, please deliver
it to me at the above address.
Unless the issuance of the shares of Common Stock being purchased by me
pursuant to the Agreement are subject to an effective registration statement
under the Securities Act of 1933 (the "Act"), I hereby represent, warrant,
covenant and agree with the Company as follows:
The shares of the Common Stock being acquired by me will be acquired
for my own account for investment and without the intent of participating,
directly or indirectly, in a distribution of the Common Stock and not with
a view to, or for resale in connection with, any distribution of the Common
Stock, nor am I aware of the existence of any distribution of the Common
Stock;
I am not acquiring the Common Stock based upon any representation,
oral or written, by any person with respect to the future value of, or
income from, the Common Stock but rather upon an independent examination
and judgment as to the prospects of the Company;
The Common Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
I am able to bear the economic risks of the investment in the Common
Stock, including the risk of a complete loss of my investment therein;
I understand and agree that the Common Stock will be issued and sold
to me without registration under any state law relating to the registration
of securities for sale, and will be issued and sold in reliance on the
exemptions from registration under the Act provided by Sections 3(b) and/or
4(2) thereof and the rules and regulations promulgated thereunder;
The Common Stock cannot be offered for sale, sold or transferred by me
other than pursuant to an effective registration under the Act or in a
transaction otherwise in compliance with the Act and evidence satisfactory
to the Company of compliance with the applicable securities laws of other
jurisdictions. The Company shall be entitled to rely upon an opinion of
counsel satisfactory to it with respect to compliance with the above laws;
The Company will be under no obligation to register the Common Stock
or to comply with any exemption available for sale of the Common Stock
without registration, and the information or conditions necessary to permit
routine sales of securities of the Company under Rule 144 of the Act may
not be available with respect to any proposed sale of the Common Stock. The
Company is under no obligation to act in any manner so as to make Rule 144
available with respect to the Common Stock;
I have and have had complete access to and the opportunity to review
and make copies of all material documents related to the business of the
Company. I have examined such of these documents as I wished and am
familiar with the business and affairs of the Company. I realize that the
purchase of the Common Stock is a speculative investment, that any possible
profit therefrom is uncertain and that I may lose my entire investment;
I have had the opportunity to ask questions of and receive answers
from the Company and any person acting on its behalf and to obtain all
material information reasonably
-2-
available with respect to the Company and its affairs. I have received all
information and data with respect to the Company which I have requested and
which I have deemed relevant in connection with the evaluation of the
merits and risks of my investment in the Company;
I have such knowledge and experience in financial and business matters
that I am capable of evaluating the merits and risks of the purchase of the
shares of Common Stock hereunder and I am able to bear the economic risks
of such purchase; and
The agreements, representations, warranties and covenants made by me
herein extend to and apply to all of the Common Stock of the Company issued
to me pursuant to the Option of which this exhibit forms a part. Acceptance
by me of the certificate representing such Common Stock shall constitute a
confirmation by the undersigned that all such agreements, representations,
warranties and covenants made herein by the undersigned shall be true and
correct at such time.
I understand that the certificates representing the shares of Common
Stock being purchased by me in accordance with this notice shall bear a
legend referring to the foregoing covenants, representations and warranties
and restrictions on transfer, and I agree that a legend to that effect may
be placed on any certificate which may be issued to me as a substitute for
the certificates being acquired by me in accordance with this notice.
Very truly yours,
___________________________
-----------------------------------------------------------------
AGREED TO AND ACCEPTED:
▇▇▇▇▇▇▇.▇▇▇
By: _______________________________
Title: ____________________________
Number of Shares
Exercised: ________________________
Number of Shares
Remaining: ________________________ Date: ___________________
-3-
