NESTOR, INC. Incentive Stock Option Agreement Granted Under 2004 Stock Incentive Plan
EXHIBIT
10.1
XXXXXX,
INC.
Granted
Under 2004 Stock Incentive Plan
1. Grant
of Option.
This
agreement evidences the grant by Xxxxxx, Inc. a Delaware corporation (the
“Company”), on September 7, 2006 (the
“Grant Date”) to
Xxxxx X. Xxxxxxx,
an
employee of the Company (the “Participant”), of an option to purchase, in whole
or in part, on the terms provided herein and in the Company’s 2004 Stock
Incentive Plan (the “Plan”), a total of 25,000 shares (the “Shares”) of common
stock, $.01 par
value
per share, of the Company (“Common Stock”) at $2.93 per Share. Unless earlier
terminated, this option shall expire at 5:00 p.m., Eastern time, on September
7,
2014 (the “Final Exercise Date”).
It
is
intended that the option evidenced by this agreement shall be an incentive
stock
option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the “Code”). Except as
otherwise indicated by the context, the term “Participant”, as used in this
option, shall be deemed to include any person who acquires the right to exercise
this option validly under its terms.
2. Vesting
Schedule.
Subject
to Section 8 hereof, this option will become exercisable (“vest”) as to 25% of
the original number of Shares on the first anniversary of the Grant Date and
as
to an additional 25% of the original number of Shares at the end of each
successive one-year period following the first anniversary of the Grant Date
until the fourth anniversary of the Grant Date.
The
right
of exercise shall be cumulative so that to the extent the option is not
exercised in any period to the maximum extent permissible it shall continue
to
be exercisable, in whole or in part, with respect to all Shares for which it
is
vested until the earlier of the Final Exercise Date or the termination of this
option under Section 3 hereof or the Plan.
3. Exercise
of Option.
(a) Form
of Exercise.
Each
election to exercise this option shall be in writing, signed by the Participant,
and received by the Company at its principal office, accompanied by this
agreement, and payment in full (i) in cash, (ii) by (A) delivery of an
irrevocable and unconditional undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the exercise price and any
required tax withholding or (B) delivery by the Participant to the Company
of a
copy of irrevocable and unconditional instructions to a creditworthy broker
to
deliver promptly to the Company cash or a check sufficient to pay the exercise
price and any required tax withholding, (iii) if the fair market value of a
share of Common Stock as determined by (or in a manner approved by) the Board
in
good faith ("Fair Market Value") is greater than the per share exercise price,
by surrender of this Option in which event the Company shall issue to the
Participant a number of shares of Common Stock equal to the product of the
number of Shares as to which this Option is being exercised multiplied by the
quotient of the difference between the Fair Market Value less the per share
exercise price divided by the Fair Market Value, or (iv) by any combination
of
the above permitted forms of payment. The Participant may purchase less than
the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than one hundred whole
shares.
(b) Continuous
Relationship with the Company Required.
Except
as otherwise provided in this Section 3, this option may not be exercised
unless the Participant, at the time he or she exercises this option, is, and
has
been at all times since the Grant Date, an employee or officer of, the Company
or any parent or subsidiary of the Company as defined in Section 424(e) or
(f)
of the Code (an “Eligible Participant”).
(c) Termination
of Relationship with the Company.
If the
Participant ceases to be an Eligible Participant for any reason, then, except
as
provided in paragraphs (d) and (e) below, the right to exercise this option
shall terminate three
months after such cessation (but in no event after the Final Exercise Date),
provided that
this
option shall be exercisable only to the extent that the Participant was entitled
to exercise this option on the date of such cessation (except as limited by
Section 8 hereof). Notwithstanding the foregoing, if the Participant, prior
to
the Final Exercise Date, violates the non-competition or confidentiality
provisions of any employment contract, confidentiality and nondisclosure
agreement or other agreement between the Participant and the Company, the right
to exercise this option shall terminate immediately such violation.
(d) Exercise
Period Upon Death or Disability.
If the
Participant dies or becomes disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or
she is an Eligible Participant and the Company has not terminated such
relationship for “cause” as specified in paragraph (e) below, this option shall
be exercisable, within the period of one year following the date of death or
disability of the Participant, by the Participant (or in the case of death
by an
authorized transferee), provided that
this
option shall be exercisable only to the extent that this option was exercisable
by the Participant on the date of his or her death or disability, and further
provided that this option shall not be exercisable after the Final Exercise
Date.
(e) Discharge
for Cause.
If the
Participant, prior to the Final Exercise Date, is discharged by the Company
for
“cause” (as defined below), the right to exercise this option shall terminate
immediately upon the effective date of such discharge. “Cause” shall mean
willful misconduct by the Participant or willful failure by the Participant
to
perform his or her responsibilities to the Company (including, without
limitation, breach by the Participant of any provision of any employment,
consulting, advisory, nondisclosure, non-competition or other similar agreement
between the Participant and the Company), as determined by the Company, which
determination shall be conclusive. The Participant shall be considered to have
been discharged for “Cause” if the Company determines, within 30 days after the
Participant’s resignation, that discharge for cause was warranted.
4. Agreement
in Connection with Public Offering.
The
Participant agrees, in connection with the initial underwritten public offering
of the Company’s securities pursuant to a registration statement under the
Securities Act, (i) not to sell, make short sale of, loan, grant any options
for
the purchase of, or otherwise dispose of any shares of Common Stock held by
the
Participant (other than those shares included in the offering) without the
prior
written consent of the Company or the underwriters managing such initial
underwritten public offering of the Company’s securities for a period of 180
days from the effective date of such registration statement, and (ii) to execute
any agreement reflecting clause (i) above as may be requested by the Company
or
the managing underwriters at the time of such offering.
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5. Withholding.
No
Shares
will be issued pursuant to the exercise of this option unless and until the
Participant pays to the Company, or makes provision satisfactory to the Company
for payment of, any federal, state or local withholding taxes required by law
to
be withheld in respect of this option. If the Company exercises its right to
pay
to the Participant the Cash Value in lieu of issuing Common Stock to the
Participant, the Company shall withhold such taxes from the payment to the
Participant.
6. Nontransferability
of Option.
This
option may not be sold, assigned, transferred, pledged or otherwise encumbered
by the Participant, either voluntarily or by operation of law, except by will
or
the laws of descent and distribution, and, during the lifetime of the
Participant, this option shall be exercisable only by the
Participant.
7. Provisions
of the Plan.
This
option is subject to the provisions of the Plan, a copy of which is furnished
to
the Participant with this option.
8. Limitation
on First Exercise.
Notwithstanding
any other provisions of the Plan, no option granted hereunder can be exercised
earlier than the earlier to occur of (i) the fourth anniversary of the date
hereof and (ii) the date that the Participant dies, becomes disabled (within
the
meaning of Section 22(e)(3) of the Code) or ceases to be an Eligible
Participant for any reason, except as provided in
paragraphs 3(e).
IN
WITNESS WHEREOF, the Company has caused this option to be executed under its
corporate seal by its duly authorized officer. This option shall take effect
as
a sealed instrument.
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XXXXXX,
INC.
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Dated:
September 7, 2006
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By:
/s/ Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Executive
Vice President, Treasurer and CFO
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PARTICIPANT’S
ACCEPTANCE
The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of
the
Company’s 2004 Stock Incentive Plan.
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PARTICIPANT:
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/s/Xxxxx
X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Address:
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0
Xxxx Xxxxx Xxxx
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| Xxxxxxx, XX 00000 |
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