STOCK OPTION AGREEMENT OF SILICON MOUNTAIN MEMORY INCORPORATED
EXHIBIT 10.12
| OPTION CERTIFICATE NO: |
||||
OF
SILICON MOUNTAIN MEMORY INCORPORATED
Silicon Mountain Memory Incorporated, (the “Company”), desiring to afford an opportunity to
the Option Holder named below to purchase certain shares of the Company’s common stock, $.01 (one
cent) par value, to provide the Option Holder with an added incentive as an employee of the
Company, hereby grants to the Option Holder, and the Option Holder hereby accepts, an option to
purchase the number of such shares specified below, during a term ending at midnight (prevailing
local time at the Company’s principal offices) on the expiration date of this Option specified
below (“Option Period”), at the option exercise price specified below, which is the Fair Market
Value per share of the Company common shares on the date of this Agreement, subject to and upon the
following terms and conditions:
| 1. | IDENTIFYING PROVISIONS: |
As used in this Option Agreement, the following terms shall have the following respective
meanings:
| a. | Option Holder: | ||
| b. | Date of Grant: | ||
| c. | Number of Shares Optioned: | ||
| d. | Option Exercise Price Per Share: | ||
| e. | Expiration Date: |
CHECK ONE:
| o | This Option is intended to be and shall be treated as an incentive stock option under Section 422 of the Internal Revenue Code. | ||
| o | This Option is not intended to be and shall not be treated as an incentive stock option under Section 422 of the Internal Revenue Code. |
Form of Stock Option Agreement for 2003 Equity Incentive Plan
| 2. | VESTING SCHEDULE AND FORFEITURE | ||
| This Option shall become exercisable in installments as follows: | |||
| 3. | RESTRICTIONS ON TRANSFERABILITY OF OPTION |
This Option may not be assigned or transferred by the Option Holder other than by will or the
laws of descent and distribution and may be exercised during the Option Holder’s lifetime only by
the Option Holder or the Option Holder’s guardian or legal representative. Except as otherwise
provided herein, the Option and all rights granted under this Agreement shall not be transferred,
assigned, pledged, or hypothecated in any way (whether by operation of law or otherwise), and shall
not be subject to execution, levy, garnishment, attachment, pledge, bankruptcy, or similar process.
Upon any such attempt to transfer, assign, pledge, hypothecate, or otherwise dispose of such
option or of such rights contrary to the provisions in this Agreement, or upon the levy of any
attachment or similar process upon such rights, such Option and such rights shall immediately
become null and void.
| 4. | REQUIREMENTS BY LAW |
By accepting this Option, the Option Holder represents and agrees for himself or herself and
his or her transferees by will or the laws of descent and distribution that, unless a registration
statement under the Securities Act of 1933 is in effect as to shares purchased upon any exercise
of this Option, (a) any and all shares so purchased shall be acquired for his or her personal
account and not with a view to or for sale in connection with any distribution, and (b) each notice
of the exercise of any portion of this Option shall be accompanied by a representation and warranty
in writing, signed by the person entitled to exercise the same, that the shares are being so
acquired in good faith for his or her personal account and not with a view to or for sale in
connection with any distribution.
No certificate or certificates for shares of stock purchased upon exercise of this Option
shall be issued or delivered unless and until, in the opinion of legal counsel for the Company,
such securities may be issued and delivered without causing the Company to be in violation of or
incur any liability under any federal, state or other securities law or any other requirement of
law or of any regulatory body having jurisdiction over the Company.
| 5. | STOCK TRANSFER RESTRICTION AGREEMENT |
By accepting this Option, the Option Holder represents and agrees for himself or herself, and
his or her transferees by will or the laws of descent and distribution, that no
Form of Stock Option Agreement for 2003 Equity Incentive Plan
certificate or certificates for Shares of Stock purchased upon exercise of this Option shall be issued or
delivered unless and until the Option Holder agrees to and executes any and all Stock Transfer
Restriction Agreements which the Company then requires, and further complies with all the
provisions and requirements thereof.
| 6. | STOCK OPTION PLAN |
This Option is subject to, and the Company and the Option Holder agrees to be bound by, all of
the terms and conditions of the Company’s 2003 Equity Incentive Plan under which this Option was
granted, as the same may have been amended from time to time in accordance with its terms, provided
that no such amendment shall deprive the Option Holder, without the Option Holder’s consent, of
this Option or of any rights hereunder. Pursuant to said plan, the Board of Directors of the
Company or its Committee established for such purposes is vested with conclusive authority to
interpret and construe the Plan and this Option, and is authorized to adopt rules and regulations
for carrying out the Plan. A copy of the Plan in its present form is attached hereto, incorporated
herein, and available for inspection during business hours by the Option Holder or other persons
entitled to exercise this Option at the Company’s principal office.
| 7. | NOTICES |
Any notice to be given to the Company shall be addressed to the Company in care of its
Secretary at its principal office, and to corporate counsel, Xxxx Xxxxxxxxx, XXXXXX & XXXXX, 0000
Xxxxxxxxxx Xx, Xxxxxx, Xxxxxxxx 00000, and any notice to be given to the Option Holder shall be
addressed to the Option Holder at the address set forth beneath the Option Holder’s signature
hereto or at such other address as the Option Holder may hereafter designate in writing to the
Company. Any such notice shall be deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, registered or certified, and deposited, postage and registry or
certification fees prepaid, in a post office or branch post office regularly maintained by the
United States Postal Service.
| 8. | RULES OF CONSTRUCTION |
This Agreement has been executed and delivered by the Company in Colorado and shall be
construed and enforced in accordance with the laws of said State, other than any choice of law
rules calling for the application of laws of another jurisdiction. Should there be any
inconsistency or discrepancy between the provisions of this Option and the terms and conditions of
the Company’s 2003 Equity Incentive Plan under which this Option is granted, the provisions in the
Plan shall govern and prevail. The receipt of this Option does not give the Option Holder any
right to continue employment by the Company or a subsidiary for any period, nor shall the granting
of this Option or the issuance of shares on exercise thereof give the Company or any subsidiary any
right to the continued services of the Option Holder for any period.
Form of Stock Option Agreement for 2003 Equity Incentive Plan
IN WITNESS WHEREOF, the Company has granted this Option on the date of grant specified above.
SILICON MOUNTAIN MEMORY INCORPORATED
By: |
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| President |
Corporate Seal
Attest:
Secretary
OPTION HOLDER |
Form of Stock Option Agreement for 2003 Equity Incentive Plan
