EXHIBIT 4.1
NON-STATUTORY INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of _________, 1997 by and between Level Best
Golf, Inc., a Florida corporation (the "Company"), and ____________
("Optionee").
R E C I T A L
The Board of Directors of the Company (the "Board of Directors") has
authorized the granting to Optionee, for services previously rendered
by Optionee as a consultant to or an employee of the Company, of a
non-qualified stock option to purchase the number of shares of Common
Stock of the Company specified in Paragraph 1 hereof, at the price
specified therein, such option to be for the term and upon the terms
and conditions hereinafter stated.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the
undertakings of the parties hereto contained herein, it is hereby
agreed:
1. Number of Shares; Option Price. Pursuant to said action of the
Board of Directors, the Company hereby grants to Optionee, in
consideration of consulting services performed for the benefit of the
Company, the option ("Option") to purchase up to _______ shares
("Option Shares") of Common Stock of the Company, at the exercise
price of $____ per share.
2. Term. This Option shall expire four years from the date first
written above.
3. Shares Subject to Exercise. The ______ Options shall vest and be
immediately exercisable, and shall thereafter remain subject to
exercise for the term specified in Paragraph 2 hereof.
4. Method and Time of Exercise. The Option may be exercised by
written notice delivered to the Company stating the number of shares
with respect to which the Option is being exercised, together with a
check made payable to the Company in the amount of the purchase price
of such shares plus the amount of applicable federal, state and local
withholding taxes, and the written statement provided for in Paragraph
10 hereof, if required by such Paragraph 10; provided, however, with
respect to the _________ Options set forth in paragraph 1 hereof,
Optionee shall be entitled to pay the exercise price against
cancellation in full of certain indebtedness owing by the Company to
Optionee for services previously rendered by Optionee as a consultant
to the Company. Not less than 100 shares may be purchased at any one
time unless the number purchased is the total number purchasable under
such Option at the time. Only whole shares may be purchased.
5. Tax Withholding. As a condition to exercise of this Option, the
Company may require the Optionee to pay over to the Company all
applicable federal, state and local taxes which the Company is
required to withhold with respect to the exercise of this Option. At
the discretion of the Company and upon the request of the Optionee,
the minimum statutory withholding tax requirements may be satisfied by
the withholding of shares of Common Stock otherwise issuable to the
Optionee upon the exercise of this Option.
6. Exercise on Termination of Employment. This Option shall not
terminate as a result of the termination of Optionee's services as a
consultant to the Company.
7. Non-transferability. This Option may not be assigned or
transferred except, if applicable, by will or by the laws of descent
and distribution, and may be exercised only by Optionee during
Optionee's lifetime and after Optionee's death, by Optionee's
representative or by the person entitled thereto under Optionee's will
or the laws of intestate succession.
8. Optionee Not a Shareholder. Optionee shall have no rights as a
shareholder with respect to the Common Stock of the Company covered by
the Option until the date of issuance of a stock certificate or stock
certificates to him upon exercise of the Option. No adjustment will
be made for dividends or other rights for which the record date is
prior to the date such stock certificate or certificates are issued.
9. No Right to Perform Services. Nothing in this Option shall confer
upon the Optionee any right to perform services for the Company, or
shall interfere with or restrict in any way the rights of the Company
to discharge or terminate Optionee as an independent contractor or
consultant at any time for any reason whatsoever, with or without good
cause.
10. Restrictions on Sale of Shares. Optionee represents and agrees
that, upon Optionee's exercise of the Option in whole or part, unless
there is in effect at that time under the Securities Act of 1933 a
registration statement relating to the shares issued to him, he will
acquire the shares issuable upon exercise of this Option for the
purpose of investment and not with a view to their resale or further
distribution, and that upon each exercise thereof Optionee will
furnish to the Company a written statement to such effect,
satisfactory to the Company in form and substance. Optionee agrees
that any certificates issued upon exercise of this Option may bear a
legend indicating that their transferability is restricted in
accordance with applicable state or federal securities law. Any
person or persons entitled to exercise this Option under the
provisions of Paragraphs 5 and 6 hereof shall, upon each exercise of
the Option under circumstances in which Optionee would be required to
furnish such a written statement, also furnish to the Company a
written statement to the same effect, satisfactory to the Company in
form and substance.
11. Registration. On or before thirty days after the date of this
Agreement, the Company shall, at the Company's expense, use its best
efforts to file with the Securities and Exchange Commission ("SEC"), a
registration statement ("Registration Statement") on Form S-8 or other
comparable form, in such form as to comply with applicable federal and
state laws for the purpose of registering or qualifying the Option
Shares for resale by Optionee, and prepare and file with the
appropriate state securities regulatory authorities the documents
reasonably necessary to register or qualify such securities, subject
to the ability of the Company to register or qualify such securities
under applicable state laws.
12. Notices. All notices to the Company shall be addressed to the
Company at the principal office of the Company at 00000 00xx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, telephone number: (000) 000-0000
Facsimile (000) 000-0000, and all notices to Optionee shall be
addressed to Optionee at the address and telecopier number of Optionee
on file with the Company, or to such other address and telecopier
number as either may designate to the other in writing. A notice
shall be deemed to be duly given if and when enclosed in a properly
addressed sealed envelope deposited, postage prepaid, with the United
States Postal Service and followed by telecopier to the addressee. In
lieu of giving notice by mail as aforesaid, written notices under this
Agreement may be given by personal delivery to Optionee or to the
Company (as the case may be).
13. Adjustments. If there is any change in the capitalization of the
Company affecting in any manner the number or kind of outstanding
shares of Common Stock of the Company, whether by stock dividend,
stock split, reclassification or recapitalization of such stock, or
because the Company has merged or consolidated with one or more other
corporations (and provided the Option does not thereby terminate
pursuant to Section 2 hereof), then the number and kind of shares then
subject to the Option and the price to be paid therefor shall be
appropriately adjusted by the Board of Directors; provided, however,
that in no event shall any such adjustment result in the Company's
being required to sell or issue any fractional shares. Any such
adjustment shall be made without change in the aggregate purchase
price applicable to the unexercised portion of the Option, but with
an appropriate adjustment to the price of each Share or other unit of
security covered by this Option.
14. Cessation of Corporate Existence. Notwithstanding any other
provision of this Option, upon the dissolution or liquidation of the
Company, the reorganization, merger or consolidation of the Company
with one or more corporations as a result of which the Company is not
the surviving corporation, or the sale of substantially all the assets
of the Company or of more than fifty percent of the then outstanding
stock of the Company to another corporation or other entity, the
Option granted hereunder shall terminate; provided, however, that:
(i) each Option for which no option has been tendered by the surviving
corporation in accordance with all of the terms of provision (ii)
immediately below shall, within five days before the effective date of
such dissolution or liquidation, merger or consolidation or sale of
assets in which the Company is not the surviving corporation or sale
of stock, become fully exercisable; or (ii) in its sole and absolute
discretion, the surviving corporation may, but shall not be so
obligated to, tender to any Optionee, an option to purchase shares of
the surviving corporation, and such new option or options shall
contain such terms and provisions as shall be required substantially
to preserve the rights and benefits of this Option.
15. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any
applicable law, such invalidity or unenforceability shall not be
construed as rendering any other provisions contained herein invalid
or unenforceable, and all such other provisions shall be given full
force and effect to the same extent as though the invalid or
unenforceable provision were not contained herein.
16. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
17. Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement, and shall
become effective when one or more counterparts have been signed by
each of the parties hereto and delivered to the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
Level Best Golf, Inc.
By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President
Optionee
/s/ _____________________
_________________________
Social Security Number or Employer Identification Number:
____________________
Facsimile number: ____________________
