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EXHIBIT 10.39
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
THIS STOCK OPTION AGREEMENT (the "Option Agreement") is made and entered into as
of the execution date of the Option Certificate to which it is attached (the
"Certificate") by and between xxxxxxxx.xxx Corporation, a Florida Corporation,
(the "Company") and the person named in the Certificate (the "Optionee").
The Board of Directors of the Company, (the "Board") has authorized the grant to
the Optionee of a non-statutory stock option to purchase shares of the Company's
Common Stock, par value set at market price at time of grant, per share (the
"Common Stock"), upon the terms and subject to the conditions set forth in this
Option Agreement and in the Stock Award Plan, attached hereto.
The Company and Option agree as follows:
1. GRANT OF OPTION
The Company hereby grants to the Option the right and option (the
"Option"), upon the terms and subject to the conditions set forth in this
Option Agreement and Stock Award Plan, to purchase all or any portion of
that number of shares of the Common Stock (the "Shares") set forth in the
Certificate at the Option exercise price set forth in the Certificate (the
"Exercise Price").
2. TERM OF OPTION
The Option shall terminate and expire on the Option Expiration Date set
forth in the Certificate (the "Expiration Date"), unless sooner terminated
as provided herein.
3. EXERCISE PERIOD
a) subject to the provisions of Sections 3, 5 and 7 of this Option
Agreement, the Option shall become exercisable (in whole or in part)
upon and after the dates set forth under the caption "Exercise
Schedule" in the Certificate. The installments shall be cumulative;
the Option may be exercised as to any or all Shares covered by an
installment, at any time or times after the installment first becomes
exercisable and until the Option Expiration Date or termination of the
Option;
b) notwithstanding anything to the contrary contained in this Option
Agreement, the Option may not be exercised, in whole or in part,
unless and until any then applicable requirements of all federal,
state and local laws and regulatory agencies shall have been fully
complied with to the satisfaction of the Company and its counsel.
4. EXERCISE OF OPTION
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the
Company of the following:
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a) written notice of exercise in the form attached hereto, stating the number
of Shares being purchased (the "Purchased Shares"):
b) payment of the Exercise Price of the Purchased Shares either in cash, or
with the consent of the Board (which may be withheld at its discretion, or
by delivery to the Company of other shares of Common Stock with an
aggregate Fair Market Value equal to the total Exercise Price of the
Purchased Shares, or according to a deferred payment or other arrangement,
(which may include without limiting the generality of the foregoing, the
use of other shares of Common Stock) with the person to whom the Option is
granted or to whom the Option is transferred pursuant to the terms of this
Option Agreement, or in any other form of legal consideration that may be
acceptable to the Board; and
c) if requested by the Company, a letter of investment intent in such form and
containing such provisions as the Company may require.
In case of any deferred payment arrangement, interest shall be payable at least
annually and shall be payable at the minimum rate of interest necessary to avoid
the imputation of interest under the applicable provision of the Internal
Revenue Code of 1986, as amended (the "Code"), and Treasury Regulations.
Following receipt of notice and payment referred to above, the Company shall
issue and deliver to the Optionee a stock certificate or stock certificates
evidencing the Purchased Shares, however, the Company shall not be obligated to
issue a fraction or fractions of a share of its Common Stock, and my pay to
Optionee, in cash or by cheque, the Fair Market Value of any fraction or
fractions of a share exercised by Optionee. "Fair Market Value" shall be
determined as follows:
i) if the Common Stock is listed on any established stock exchange or a
national market system, including without limitation to the Nasdaq
National Market, the Fair Market Value of a share of Common Stock
shall be the closing sale price for such stock (or the closing bid, if
no sales are reported) as quoted on such system or exchange (or the
exchange with the greatest determination, as reported in the Wall
Street Journal or such other source as the Board deems reliable;
ii) if the Common Stock is quoted on the NASDAQ system (but not the NASDAQ
National Market) or is regularly quoted by recognized securities
dealer but selling prices are not reported, the Fair Market Value of a
share of Common Stock shall be the mean between the bid and asked
prices for the Common Stock on the last market trading day prior to
the day of determination, as reported in the Wall Street Journal or
such other source as the Board deems reliable; and
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iii) in the absence of an established market of the Common Stock, the
Fair Market Value shall be determined in good faith, by the
Board.
5. TERMINATION OF SERVICES
a) if Optionee shall cease to be an officer, director, consultant or
employee of the Company, or any Subsidiary or Parent of the Company,
for any reason other than death or permanent disability (a
"Terminating Event"), or termination by the Company for cause, the
Optionee shall have the right, subject to the provisions of Section 5
herein, to exercise the Option at any time following such Terminating
Event until the earlier to occur of 1) 30 days following the date of
such Terminating Event or 2) the Expiration Date. The Option may be
exercised following a Terminating Event only to the extent
exercisable as of the date of the Terminating Event. To the extent
unexercised at the end of the period referred to above, the Option
shall terminate. The Board, in its sole and absolute discretion,
shall determine whether or not authorized leaves of absence shall
constitute termination of employment for purposes of this Option
Agreement;
b) if, by reason of death or disability, (a "Special Termination
Event"), Optionee shall cease to be an officer, director, consultant
or employee, the Company or any Subsidiary or Parent of the Company,
then the Optionee, the Optionee's executors or administrators or any
person or persons acquiring the Option directly from the Optionee by
bequest or inheritance, shall have the right to exercise the Option
at any time following such Special Terminating Event until the
earlier to occur of 1) six months following the date of such Special
Terminating Event and 2) the Expiration Date. The Option may be
exercised following a Special Terminating Event only to the extent
exercisable at the date of the Special Terminating Event. To the
extent unexercised at the end of the period referred to above, the
Option shall terminate. For purposes of this Option Agreement,
"disability" shall mean total and permanent disabled unless he
furnishes proof of such disability in such form and manner, and at
such times as the Board may from time to time require;
c) if Optionee's employment shall be terminated "for cause" by the
Company, any Subsidiary or any Parent, the Option shall terminate and
expire upon such termination of employment. For purposes of this
Option Agreement, but not limited to, "for cause" shall mean:
i) with respect to employees and consultants of the Company, the
willful failure or refusal by Optionee to perform his duties to
the Company; or
ii) Optionee's willful disobedience of any orders or directives of
the Board of any officers thereof acting under the authority
thereof or Optionee's deliberate interference with the
compliance by other employees of the Company with any such
orders or directives; or
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iii) The willful failure or refusal of Optionee to abide by or comply
with the written policies, standard procedures or regulations of
the Company; or
iv) Any willful or continued act or course of conduct by Optionee
which the Board in good faith determines might reasonably be
expected to have a material or detrimental effect on the Company
or the business, operations, affairs or financial position
thereof; or
v) The committing by the Optionee of any fraud, theft, embezzlement
or other dishonest act against the Company; or
vi) With respect to consultants, any material breach of their
consulting agreement with the Company; and
vii) Nothing in the Plan, the Certificate or the Option Agreement
shall confer upon the Optionee any right to continue in the
service and/or employ of the Company or any Affiliate (as
defined in the Plan) or shall affect the right of the Company or
any Affiliate to terminate the relationship or employment of
Optionee, with or without cause.
6. RESTRICTIONS ON PURCHASED SHARES
a) Market Stand-Off
i) in connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act of 1933,
as amended (the "1933 Act"), including the Company's initial
public offering, Optionee shall not sell, make any short sale
of, loan, hypothecate, pledge, grant any option for the purchase
of, or otherwise dispose or transfer for value or otherwise
agree to engage in any of the foregoing transactions with
respect to any Purchased Shares without the prior written
consent of the Company or its underwriters, for such period of
time from and after the effective date of such registration
statement as may be requested by the Company or such
underwriters; provided however, that in no event shall such
period exceed 180 days. This Section 6 shall only remain in
effect for the two-year period immediately following the
effective date of the Company's initial public offering and
shall thereafter terminate and cease to be in force or effect.
Optionee agrees to execute and deliver to the Company such
further documents or instruments as the Company may reasonably
determine to be necessary or appropriate to effect the
provisions of this Section 6;
ii) in the event of any stock dividend, stock split,
recapitalization or other transaction resulting in an adjustment
under Section 7 hereof, then any new, substituted or additional
securities or other property which is by reason of such
transaction distributed with respect to or in exchange for the
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Purchased Shares, shall be immediately subject to the provisions
of this Section 6, to the same extent the Purchased Shares are at
such time covered by such provisions;
iii) in order to enforce the provisions of Section 6, the company may
impose stop-transfer instructions with respect to the Purchased
Shares until the end of the applicable standoff period.
b) SECURITIES LAW RESTRICTIONS
Optionee shall not sell, transfer, assign, pledge or dispose of (with
or without consideration) (collectively "Transfer") and the Company
shall not be required to register any such Transfer and the Company
may instruct its transfer agent not to register any such Transfer,
unless and until all of the following events shall have occurred:
i) the Purchased Shares are Transferred pursuant to and in
conformity with 1) and effective registration statement filed
with the Securities and Exchange Commission (the "Commission")
pursuant to the 1933 Act, or 2) an exemption from registration
under the 1933 Act, and 3) the securities laws of any state of
the United States; and
ii) Optionee has, prior to the Transfer of such Purchased Shares,
and if requested by the Company, provided all relevant
information to Company's counsel so that upon Company's request,
Company's counsel is able to, and actually prepares and delivers
to the Company, a written opinion that the proposed Transfer is
1) pursuant to a registration statement which has been filed
under the 1933 Act as then in effect, and the Rules and
Regulations of the Commission thereunder and 2) is either
qualified or registered under any applicable state securities
laws, or exempt from such qualification or registration. The
Company shall bear all reasonable costs of preparing such
opinion.
c) NONCOMPLYING TRANSFERS INVALID
Any attempted Transfer which is not in full compliance with this
Section 6 shall be null and void ab initio of a no force or effect.
7. ADJUSTMENTS UPON RECAPITALIZATION
a) Subject to the provisions of Section 7, if any change is made in the
Common Stock, without receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash,
stock split, liquidating dividend, combination of shares, exchange of
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shares, change in corporate structure or other transaction not
involving the receipt of consideration by the Company) the Option will
be appropriately adjusted in the class(es) and number of shares and
price per share of stock subject to the Option. Such adjustments shall
be made by the Board, the determination of which shall be final,
binding, and conclusive. The conversion of any convertible securities
of the Company, shall not be treated as a "transaction not involving
the receipt of consideration by the Company";
b) In the event of 1) a dissolution, liquidation or sale of substantially
all of the assets of the Company or 2) a merger or consolidation in
which the Company is not the surviving corporation or 3) a reverse
merger in which the Company is the surviving corporation but the
shares of the Common Stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise, then at the sole
discretion of the Board, and to the extent permitted by applicable
law, the Option shall terminate upon such event and may be exercised
prior thereto to the extent the Option is then exercisable; or
continue in full force and effect and, if applicable, the surviving
corporation or an Affiliate of such surviving corporation shall assume
the Option and/or shall substitute a similar option or award in place
of the Option.
c) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Board, and its determination shall be final, binding and conclusive;
d) The provisions of this Section 7 are intended to be exclusive, and
Optionee shall have no other rights upon the occurrence of any of the
events described in Section 7.
e) The grant of the Option shall not affect in any way, the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all
or any part of its business or assets.
8. WAIVER OF RIGHTS TO PURCHASE STOCK
By signing this Option Agreement, Optionee acknowledges and agrees that
neither the Company nor any other person or entity is under any obligation
to issue, sell, assign or transfer to Optionee, any portion or equity
security of the Company, other than the Shares subject to the Option and
any other right or option to purchase Common Stock which was previously
granted in writing to Optionee by the Board. By signing this Option
Agreement, Optionee specifically waives all rights, which he or she may
have had prior to the date of this Option Agreement, to receive any option
or equity security of the Company.
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9. INVESTMENT INTENT
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, and if at the time of such exercise the Plan and/or the
Purchased Shares have not been registered under the 1933 Act, he or she
will acquire Shares upon such exercise for the purpose of investment and
not with a view to the distribution of such Shares, and that upon each
exercise of the Option, he or she will furnish to the Company a written
statement to such effect.
10. LEGEND ON STOCK CERTIFICATES
Optionee agrees that all certificates representing Purchased Shares will be
subject to such stock transfer orders and other restrictions (if any) as
the Company may deem advisable under the rules, regulations and other
requirements of the Commission, any stock exchange upon which the Common
Stock is then listed and any applicable federal or state securities laws,
and the Company may cause a legend or legends to be put on such
certificates to make appropriate reference to such restrictions.
11. NO RIGHTS AS SHAREHOLDER
Except as provided in Section 7 of this Option Agreement, Optionee shall
have no rights as a shareholder with respect to the Shares until the date
of the issuance to Optionee of a stock certificate or stock certificates
evidencing such Shares. Except as may be provided in Section 7 of this
Option Agreement, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the
date such stock certificate is issued.
12. MODIFICATION
The Board (excluding the Optionee if he is a director) may modify, extend
or renew the Option or accept the surrender of, and authorize the grant of
a new Option I substitution for, the Option (to the extent not previously
exercised). No modification of the Option shall be made which, without the
consent of Optionee, would alter or impair any rights of the Optionee under
the option.
13. WITHHOLDING
The Company shall be entitled to require as a condition of delivery of any
Purchased Shares upon exercise of any Option that the Optionee agree to
remit, at the time of such delivery or such later date as the Company may
determine, an amount sufficient to satisfy all federal, state and local
withholding tax requirements relating thereto, and Optionee agrees to take
such other action required by the Company to satisfy such withholding
requirements.
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14. CHARACTER OF OPTION
The Option is not intended to qualify as an "incentive stock option" as
that term is defined in Section 422 of the Code.
15. GENERAL PROVISIONS
a) Further Assurances
Optionee shall promptly take all actions and execute all documents
requested by the Company, which the Company deems to be reasonably
necessary to effectuate the terms and intent of this Option Agreement.
b) Notices
All notices, requests, demands and other communications under this
Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
i) if to the Company, in writing to:
xxxxxxxx.xxx Corporation
x/x Xxxxx 000, 0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, X0X 0X0
ii) if to the Optionee, in writing to:
the address set forth in the records of the Company at that
time.
or at such address or addresses as may have been furnished by such
either party in writing to the other party hereto. Any such notice,
request, demand or other communication shall be effective 1) if given
by mail, 72 hours after such communication is deposited in the mail,
by first-class certified mail, return receipt requested, postage
prepaid, addressed as aforesaid, or 2) if given by any other means,
when delivered at the address specified in this subsection.
c) Transfer of Rights under this Option Agreement
The Company may at any time transfer and assign its rights and
delegate its obligations under this Option Agreement to any other
person, corporation, firm or entity, including its officers,
directors and stockholders, with or without consideration.
d) Option Non-Transferable
Optionee may not Transfer the Option except by will or the laws of
descent and distribution, and the Option may be exercised during the
lifetime of Optionee only
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by Optionee or by his or her guardian or legal representative in the
case of a disability, and upon Optionee's death, only by his or her
Estate or by any person who acquired the Option by bequest or
inheritance or by reason of the death of Optionee.
e) Successors and Assigns
Except to the extent specifically limited by the terms and provisions
of this Option Agreement, this Option Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and personal representatives.
f) Governing Law
THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE IN,
AND TO BE PERFORMED WITHIN, THAT STATE, EXCEPT TO THE EXTENT PREEMPTED
BY FEDERAL LAW, WHICH SHALL TO THAT EXTENT GOVERN.
g) Miscellaneous
Titles and captions contained in this Option Agreement are inserted
for convenience of reference only and do not constitute a part of this
Option Agreement for any other purpose. Except as specifically
provided herein, neither this Option Agreement nor any right pursuant
hereto or interest herein shall be assignable by any of the parties
hereto without the prior written consent of the other party hereto.
THE SIGNATURE PAGE TO THIS OPTION AGREEMENT CONSISTS OF THE SIGNATURE PAGE OF
THE OPTION CERTIFICATE. EACH INSTRUMENT TOGETHER CONSTITUTES ONE AND THE SAME
INSTRUMENT.
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OPTION CERTIFICATE
(NON-STATUTORY STOCK OPTION)
THIS IS TO CERTIFY that xxxxxxxx.xxx Corporation, a Florida corporation, (the
"Company"), has granted to the person named below (the "Optionee") a stock
option (the "Option") to purchase shares (the "Shares") of the Company's Common
Stock upon the terms and conditions as set out below:
NAME OF OPTIONEE: _________________________________________
ADDRESS OF OPTIONEE: C/O XXXXXXXX.XXX TECHNOLOGIES INC.
XXXXX 000, 0000 XXXXXXX XXXXXX
XXXXXXXXX, XX, X0X 0X0
NUMBER OF SHARES: __________________________________________
OPTION EXERCISE PRICE __________________________________________
(PER SHARE)
DATE OF GRANT: __________________________________________
EXPIRATION DATE: __________________________________________
EXERCISE (VESTING) SCHEDULE:
The Option shall become exercisable as follows:
This Option shall be exercisable commencing on ________________ and shall vest
in 1/24 equal monthly installments thereafter.
SUMMARY OF OTHER TERMS:
This Option is defined in the Stock Option Agreement (Non-Statutory Stock
Option) (the "Option Agreement") which is attached to this Option Certificate
(the "Certificate") hereto. This Certificate summarizes certain of the
provisions of the Option Agreement for your information, but is not complete.
Your rights are governed by the Option Agreement, not by this summary. The
Company strongly suggests that you carefully review the full Option Agreement
prior to signing this Certificate or exercising the Option.
Among the terms of the Option Agreement are the following:
1. EMPLOYMENT
The Option Agreement does not obligate the Company to retain you for any
period of time, nor does it succeed your employment agreement with the
Company. The terms of your
