Incentive Stock Option
Exhibit
4.1
Incentive
Stock Option
THIS
OPTION AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE EXERCISE
OF THIS OPTION HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER,
PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. UPON THE
FULFILLMENT OF CERTAIN OF SUCH CONDITIONS THE MINT LEASING, INC. HAS AGREED TO
DELIVER TO THE HOLDER HEREOF A NEW OPTION OR TO THE HOLDER THEREOF A NEW
CERTIFICATE FOR THE SHARES ISSUABLE HEREUNDER, AS APPLICABLE, IN EACH CASE NOT
BEARING THIS LEGEND, FOR THE OPTION OR SUCH SHARES, AS THE CASE MAY BE,
REGISTERED IN THE NAME OF THE HOLDER HEREOF OR THEREOF. A COPY OF THE AGREEMENT
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS OPTION OR OF THE SHARES ISSUABLE HEREUNDER TO THE SECRETARY OF THE MINT
LEASING, INC.
THE
MINT LEASING, INC.
INCENTIVE
STOCK OPTION
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No.
ISO 1
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Void
after July 18, 2018
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THIS
CERTIFIES THAT, for value received, Xxxxx Xxxxxx (the "Holder") is entitled
during the period commencing on July 18, 2008 (“Initial Option Exercise Date”)
to subscribe for and purchase One Million (1,000,000) shares of the fully paid
and nonassessable Common Stock, $.001 par value (the "Shares"), of THE MINT LEASING,
INC., a Nevada corporation (the "Company") at the per share
exercise price of $___ (the “Exercise Price”).
This
Option is granted pursuant to and is governed by the Company’s 2008
Officer, Director, Employee and Consultant Stock Option, Stock Warrant and Stock
Award Plan (the “Plan”)
and shall be treated for federal income tax purposes as an incentive stock
option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”).
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1.
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Method
of Exercise; Payment.
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a.
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Cash
Exercise. The purchase rights represented by this Option may be
exercised by the Holder, in whole or in part, by the surrender of this
Option (with the notice of exercise form attached hereto as Exhibit A duly
executed) at the principal office of the Company, and by the payment to
the Company, by certified, cashier's or other check acceptable to the
Company or by wire transfer to an account designated by the Company, of an
amount equal to the Exercise Price of the Shares being
purchased.
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b.
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Cashless
Exercise. The Holder, in lieu of purchasing the entire number of
Shares subject to purchase hereunder, shall have the right to relinquish
all or any part of the then unexercised portion of this Option for a
number of Shares to be determined in accordance with the following
provisions of this clause (b):
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X =
Y(A-B)
A
Where:
X = the
number of Shares to be issued to the Holder under this Section
1(b);
Y = the
number of Shares identified in the Notice of Exercise as being
relinquished
A = the
current market value (as defined below) of one share of Common Stock of the
Company on such date; and
B = the
Exercise Price on such date.
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c.
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Stock
Certificates. In the event of any exercise of the rights
represented by this Option, certificates for the Shares so purchased shall
be delivered to the Holder within a reasonable time and, unless this
Option has been fully exercised or has expired, a new Option representing
the shares with respect to which this Option shall not have been exercised
shall also be issued to the Holder within such
time.
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2.
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Stock
Fully Paid; Reservation of Shares. All of the Shares issuable upon
the exercise of the rights represented by this Option will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and
nonassessable, and free from all taxes, liens and charges with respect to
the issue thereof. During the period within which the rights represented
by this Option may be exercised, the Company shall at all times have
authorized and reserved for issuance sufficient shares of its Common Stock
to provide for the exercise of the rights represented by this
Option.
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3.
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Adjustments.
The number and kind of securities purchasable upon the exercise of this
Option and the Exercise Price therefor shall be subject to adjustment from
time to time upon the occurrence of certain events, as
follows:
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Page 2 of
9
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a.
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Reclassification.
In the case of any reclassification or change of securities of the class
issuable upon exercise of this Option (other than a change in par value,
or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination), or in case of any merger of
the Company with or into another corporation (other than a merger with
another corporation in which the Company is the acquiring and the
surviving corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Option),
or in case of any sale of all or substantially all of the assets of the
Company, the Company, or such successor or purchasing corporation, as the
case may be, shall duly execute and deliver to the Holder a new Option (in
form and substance reasonably satisfactory to the Holder), or the Company
shall make appropriate provision without the issuance of a new Option, so
that the Holder shall have the right to receive, at a total purchase price
not to exceed that payable upon the exercise of the unexercised portion of
this Option, and in lieu of the shares of Common Stock theretofore
issuable upon exercise of this Option, (i) the kind and amount of shares
of stock, other securities, money and property receivable upon such
reclassification, change, merger or sale by a holder of the number of
shares of Common Stock then purchasable under this Option, or (ii) in the
case of such a merger or sale in which the consideration paid consists all
or in part of assets other than securities of the successor or purchasing
corporation, at the option of the Holder, the securities of the successor
or purchasing corporation having a value at the time of the transaction
equivalent to the fair market value of the Common Stock at the time of the
transaction. The provisions of this subparagraph (a) shall similarly apply
to successive reclassifications, changes, mergers and
transfers.
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b.
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Stock
Splits, Dividends and Combinations. In the event that the Company
shall at any time subdivide the outstanding shares of Common Stock or
shall issue a stock dividend on its outstanding shares of Common Stock the
number of Shares issuable upon exercise of this Option immediately prior
to such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Exercise Price shall be proportionately
decreased, and in the event that the Company shall at any time combine the
outstanding shares of Common Stock the number of Shares issuable upon
exercise of this Option immediately prior to such combination shall be
proportionately decreased, and the Exercise Price shall be proportionately
increased, effective at the close of business on the date of such
subdivision, stock dividend or combination, as the case may
be.
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4.
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Notice
of Adjustments. Whenever the number of Shares purchasable hereunder
or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice to the Holder setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the
number and class of shares which may be purchased thereafter and the
Exercise Price therefor after giving effect to such
adjustment.
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Page 3 of
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5.
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Fractional
Shares. Whether or not the number of shares purchasable upon the
exercise of an Option is adjusted pursuant to Section 3 of this Agreement,
this Option may not be exercised for fractional shares and the Company
shall not be required to issue fractions of Shares upon exercise of the
Options or to distribute Shares certificates that evidence fractional
Shares. In lieu of fractional Shares, there shall be returned
to the Holder upon such exercise an amount in cash, in United States
dollars, equal to the amount in excess of that required to purchase the
largest number of full Shares.
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6.
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Termination
of Business Relationship.
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a.
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Termination Other than
for Cause If the Holder’s employment with the Company is
terminated, other than by reason of death, disability, as defined in
Section 5.02 of the Employment Agreement between the Company (originally
between The Mint Leasing, Inc., a Texas corporation, and transferred to
the Company), and the Holder (the “Employment Agreement),
or termination for Cause as defined in Section 5.03 of the Employment
Agreement, no further installments of the Option shall become exercisable,
and this Option shall terminate (and may no longer be exercised) after the
passage of ninety (90) days from the date Holder’s employment ceases, but
in no event later than the scheduled expiration date. In such a case, the
Holder’s only rights hereunder shall be those that are properly exercised
before the termination of the
Option.
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b.
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Termination for
Cause. If the Holder’s employment with the Company is terminated
for Cause (as defined in Section 5.03 of the Employment Agreement), this
Option shall terminate upon the Holder’s receipt of written notice of such
termination and shall thereafter not be exercisable to any extent
whatsoever.
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c.
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Death of
Holder. If the Holder dies while employed by the
Company, this Option may be exercised, to the extent otherwise exercisable
on the date of his death, by the Holder’s estate, personal representative
or beneficiary to whom this Option has been assigned pursuant to Section
10(a), at any time within 180 days after the date of death, but not later
than the scheduled expiration date.
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d.
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Disability of
Holder. If the Holder’s employment with the Company is
terminated by reason of his disability (as defined in the Employment
Agreement), this Option may be exercised, to the extent otherwise
exercisable on the date the employment was terminated, at any time within
180 days after such termination, but not later than the scheduled
expiration date.
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e.
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Effect of
Termination. At the expiration of time periods described
in Sections 6(a), (c) and (d) or the scheduled expiration date, whichever
is earlier, this Option shall terminate (and shall no longer be
exercisable) and the only rights hereunder shall be those as to which this
Option was properly exercised before such
termination.
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Page 4 of
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7.
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Representations
of the Company. The Company represents that (i) all corporate
actions on the part of the Company, its officers, directors and
shareholders necessary for the issuance of this Option, the issuance of
the Shares pursuant to exercise of this Option, and the performance of the
Company's obligations hereunder were taken prior to and are effective as
of the Initial Option Exercise Date; and (ii) the Exercise Price is equal
to the fair market value of the Company’s Common Stock as of the Initial
Option Exercise Date.
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8.
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Representations
and Warranties by the Holder. The Holder represents and warrants to
the Company as follows:
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a.
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This
Option and the Shares issuable upon exercise thereof are being acquired
for its own account, for investment and not with a view to, or for resale
in connection with, any distribution or public offering thereof within the
meaning of the Securities Act of 1933, as amended (the
"Act"). Upon exercise of this Option, the Holder shall, if so
requested by the Company, confirm in writing, in a form satisfactory to
the Company, that the securities issuable upon exercise of this Option are
being acquired for investment and not with a view toward distribution or
resale.
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b.
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The
Holder understands that the Option and the Shares have not been registered
under the Act by reason of their issuance in a transaction exempt from the
registration and prospectus delivery requirements of the Act pursuant to
Section 4(2) thereof, and that they must be held by the Holder
indefinitely, and that the Holder must therefore bear the economic risk of
such investment indefinitely, unless a subsequent disposition thereof is
registered under the Act or is exempted from such
registration.
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c.
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The
Holder has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the purchase of
this Option and the Shares purchasable pursuant to the terms of this
Option and of protecting its interests in connection
therewith.
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d.
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The
Holder is able to bear the economic risk of the purchase of the Shares
pursuant to the terms of this
Option.
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9.
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Restrictive
Legend. The Shares (unless registered under the Act) shall be
stamped or imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
ACT. UPON THE FULFILLMENT OF CERTAIN OF SUCH CONDITIONS THE MINT LEASING,
INC. HAS AGREED TO DELIVER TO THE HOLDER HEREOF A NEW CERTIFICATE NOT
BEARING THIS LEGEND FOR THE SECURITIES REPRESENTED HEREBY REGISTERED IN
THE NAME OF THE HOLDER HEREOF. A COPY OF THE AGREEMENT MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE MINT LEASING,
INC.
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Page 5 of
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10.
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Restrictions
Upon Transfer and Removal of
Legend.
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a.
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This
Option is not transferable or assignable except by will or by the laws of
descent and distribution or pursuant to a valid domestic relations order.
Except as set forth in the preceding sentence, during the Holder’s
lifetime, only the Holder can exercise this
Option.
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b.
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The
Company need not register a transfer of this Option or Shares bearing the
restrictive legend set forth in Section 9 hereof, unless the conditions
specified in such legend are satisfied. The Company may also instruct its
transfer agent not to register the transfer of the Shares, unless one of
the conditions specified in the legend referred to in Section 9 hereof is
satisfied.
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11.
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Rights
of Shareholders. No holder of this Option shall be entitled, as an
Option holder, to vote or receive dividends or be deemed the holder of any
Shares or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Option, as
such, any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Option shall have
been exercised and the Shares purchasable upon the exercise hereof shall
have become deliverable, as provided
herein.
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12.
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Notices.
All notices and other communications required or permitted hereunder shall
be in writing, shall be effective when given, and shall in any event be
deemed to be given upon receipt or, if earlier, (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service,
if delivered by first class mail, postage prepaid, (b) upon delivery, if
delivered by hand, (c) one business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid or (d)
one business day after the business day of facsimile transmission, if
delivered by facsimile transmission with copy by first class mail, postage
prepaid, and shall be addressed (i) if to the Holder, at the Holder's
address as set forth on the books of the Company, and (ii) if to the
Company, at the address of its principal corporate offices (attention:
President) or at such other address as a party may designate by ten days
advance written notice to the other party pursuant to the provisions
above.
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Page 6 of
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13.
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14.
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Entire
Agreement; Modification; Waivers This Agreement contains
the entire agreement of the parties, and supersedes any prior agreements
with respect to its subject matter. This Agreement may only be
modified only by a written agreement, executed by the Holder and the
Company, provided that the Company may make any changes in this Agreement
that it shall deem appropriate to correct any defective or inconsistent
provision or manifest mistake or error herein
contained.
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15.
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Jurisdiction
and Venue The courts of the State of Texas (the “Texas Courts”) shall
have exclusive jurisdiction to hear, adjudicate, decide, determine and
enter final judgment in any action, suit, proceeding, case, controversy or
dispute, whether at law or in equity or both, and whether in contract or
tort or both, arising out of or related to this Agreement, or the
construction or enforcement hereof or thereof (any such action, suit,
proceeding, case, controversy or dispute, a “Related
Action”). The Company and the Holder hereby irrevocably
consent and submit to the exclusive personal jurisdiction of the Texas
Courts to hear, adjudicate, decide, determine and enter final judgment in
any Related Action. The Company and the Holder hereby
irrevocably waive and agree not to assert any right or claim that it is
not personally subject to the jurisdiction of the Texas Courts in any
Related Action, including any claim of forum non conveniens or
that the Texas Courts are not the proper venue or form to adjudicate any
Related Action. If any Related Action is brought or maintained
in any court other than the Texas Courts, then that court shall, at the
request of the Company or the Holder, dismiss that
action.
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16.
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Specific
Performance The Company hereby acknowledges and agrees
that it is difficult, if not impossible to measure in money the damages
that will accrue to the Holder by reason of a failure to issue the Shares
under this Agreement, and that the Holder may seek to specifically enforce
the Company’s obligation to issue the Shares. Therefore, if the
Holder shall institute any action or proceeding to enforce the provisions
hereof, the Company hereby waives all claims or defenses therein that the
Holder has an adequate remedy at law, and hereby agrees not to assert or
otherwise raise any such claim or
defense.
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Page 7 of
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17.
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Waiver
of Jury Trial The Company and the Holder hereby waive
trial by jury in any Related
Action.
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18.
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Attorney’s
Fees The prevailing
party in any Related Action shall be entitled to recover that party’s
costs of suit, including reasonable attorney’s
fees.
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19.
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Binding
Effect This Agreement shall be binding on, and shall
inure to the benefit of the parties and their respective successors in
interest.
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20.
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Construction,
Counterparts This Agreement shall be construed as a
whole and in favor of the validity and enforceability of each of its
provisions, so as to carry out the intent of the parties as expressed
herein. Heading are for the convenience of reference, and the meaning and
interpretation of the text of any provision shall take precedence over its
heading. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original, but all of which, taken together shall
constitute one agreement. A faxed copy or photocopy of a party’s signature
shall be deemed an original for all
purposes.
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Issued
this 18th day of
July, 2008.
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THE
MINT LEASING, INC.
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By:
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/S/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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Page 8 of
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EXHIBIT
A
NOTICE OF
EXERCISE
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TO:
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The
Mint Leasing, Inc.
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000 X.
Xxxx Xxxx
Houston,
TX 77008________________
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1.
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The
undersigned hereby elects to purchase __________ Shares of THE MINT
LEASING, INC. pursuant to the terms of the attached
Option.
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2.
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The
undersigned elects to exercise the attached Option by means of a cash
payment, and tenders herewith or by concurrent wire transfer payment in
full for the purchase price of the shares being purchased, together with
all applicable transfer taxes, if
any.
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3.
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Please
issue a certificate or certificates representing said Shares in the name
of the undersigned or in such other name as is specified
below:
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(Name)
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(Address)
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4.
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The
undersigned hereby represents and warrants that the aforesaid Shares are
being acquired for the account of the undersigned for investment and not
with a view to, or for resale, in connection with the distribution
thereof, and that the undersigned has no present intention of distributing
or reselling such shares and all representations and warranties of the
undersigned set forth in Section 7 of the attached Option are true and
correct as of the date hereof.
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(Signature)
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Printed
Name:
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(Date)
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Page 9 of
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