FLORHAM CONSULTING CORP. STOCK OPTION AGREEMENT
This
STOCK OPTION AGREEMENT
(the “Agreement”) is
dated as of December 31, 2009, by and between Florham Consulting Corp., a
Delaware corporation (the “Company”), and ___________,
having an address at ______________________, _______________, _________ (the “Optionee”):
WITNESSETH
WHEREAS, the Optionee has
taken certain actions and performed certain services for the benefit of the
Company for which the Company seeks to compensate the Optionee and to provide
the Optionee with an additional incentive in connection with the taking of such
actions and the performance of such services
WHEREAS, the Company desires
to grant the Optionee, and the Optionee hereby accepts, the option to purchase
shares of the Company’s common stock on the terms and conditions set forth
herein; and
WHEREAS, pursuant to the 2009
Stock Incentive Plan (the "Plan") of the Company, the
Board of Directors of the Company or a committee to which administration of the
Plan is delegated by the Board of Directors (in either case, the "Administrator") has authorized
the granting to Optionee of Options under this Agreement.
NOW, THEREFORE, in
consideration of the mutual promises set forth herein, and for other good and
valuable consideration, the Company and the Optionee hereby agree as
follows:
1. Grant.
(a) The
Company hereby grants to the Optionee as of December 31, 2009 (the “Grant Date”) a non-qualified
stock option (the “Option”) under the Plan, to
purchase all or any part of an aggregate of 1,279,484 shares (the “Shares”) of common stock of
the Company, par value $.0001 per share (the “Common Stock”), at an exercise
price (the “Exercise
Price”) of $0.228 per share in respect of 639,742 of the Options (the
“Tier I Options”) and
$0.50 per share in respect of the remaining 639,742 Options (the “Tier II
Options”).
(b) This
Agreement and the grant of the Option herein supersedes that certain Stock
Option Agreement dated as of August 20, 2009 by and between the Optionee and
Educational Investors, Inc. (the “Prior Stock Option
Agreement”), which Prior Stock Option Agreement shall be deemed null and
void as of the date hereof.
2. Number of Shares and
Vesting. This Option shall be exercisable for an aggregate of
1,279,484 Shares. The Options shall be exercisable as
follows:
(a) The
Tier I Options shall be exercisable if and only if the EBTDA Per Share for the
applicable Measuring Year exceeds the Base Tier I EBTDA Per Share;
and
(b) The
Tier II Options shall be exercisable if and only if the EBTDA Per Share for the
applicable Measuring Year exceeds the Base Tier II EBTDA Per Share.
(c) As
used in this Section 2, the following terms have the respective meanings set
forth below:
(i) Base
Tier I EBTDA Per Share means: (1) $0.036 for the Measuring Year ending December
31, 2010, (2) $0.055 for the Measuring Year ending December 31, 2011, (3) $0.091
for the Measuring Year ending December 31, 2012, (4) $0.109 for the Measuring
Year ending December 31, 2013, and (5) $0.137 for the Measuring Year ending
December 31, 2014.
(ii) Base
Tier II EBTDA Per Share means: (1) $0.055 for the Measuring Year ending December
31, 2010, (2) $0.091 for the Measuring Year ending December 31, 2011, (3) $0.137
for the Measuring Year ending December 31, 2012, (4) $0.164 for the Measuring
Year ending December 31, 2013, and (5) $0.191 for the Measuring Year ending
December 31, 2014.
(iii) EBTDA
Per Share means (1) the net income after taxes (exclusive of any non-recurring
or extraordinary items paid or accrued) of the Company and its consolidated
subsidiaries (if any) in the applicable Measuring Year, plus (A) federal and state
income taxes paid or accrued in such Measuring Year, (B) amounts paid or accrued
in such Measuring Year in respect of depreciation of tangible assets, and (C)
amounts paid or accrued in such Measuring Year in respect of amortization of
intangible assets, including goodwill, all as set forth on the audited
consolidated statements of income or operations of the Company and its
consolidated subsidiaries (if any) in the applicable Measuring Year and as
determined in accordance with GAAP by the Company’s independent accountants,
divided by (2) the
weighted average of the outstanding Common Stock, measured on a fully diluted
basis.
(iv) GAAP
means U.S. generally accepted accounting principles, as in effect from time to
time, consistently applied.
(v)
Measuring Year means each calendar year of the Company
ending on December 31, 2010, 2011, 2012, 2013 or 2014, as
applicable.
3. Vesting; Right to
Exercise. The Options shall be deemed vested as of the date of
grant. The Optionee shall have the right to exercise the Options at
any time and from to time after achievement of any applicable EBTDA Per Share
target, regardless of any subsequent EBTDA Per Share results.
4. Medium and Time of
Payment. The Option shall be exercised by a written notice signed by the
Optionee which identifies this Agreement and states the number of Shares then
being purchased (the “Exercise
Notice”), delivered to the attention of the Company’s Secretary at the
address for the Company as set forth in Section
15. The exercise date shall be the date such notice is
received by the Company provided that consideration for the Exercise Price is
received by such time or within a reasonable period of time
thereafter. The Exercise Notice shall be accompanied by the Exercise
Price, which is payable either by: (a) cash payment, certified or bank
check or money order, equal to the aggregate Exercise Price for the Shares being
purchased; (b) a certificate(s) representing Common Stock owned by the
Optionee, if not subject to any restrictions, with a Fair Market Value equal to
the aggregate Exercise Price for the Shares being purchased; (c) a cashless
exercise, pursuant to which the Optionee shall be issued that number
of Shares as is determined by multiplying the number of Shares being purchased
hereunder by a fraction, the numerator of which shall be the difference between
the then Fair Market Value of the Common Stock and the Exercise Price, and the
denominator of which shall be the then Fair Market Value of the Common Stock;
(d) such other manner as may be authorized by the Administrator and permitted
under applicable law; or (e) by a combination of the methods described in
clauses (a), (b), (c) and (d) above; provided, however, that in
the event the Company determines at any time or from time to time that any of
such exercise procedures may have an adverse impact on the
Company’s financial statements, the Company may limit or prohibit the Optionee
from using any such method of exercise, other than the procedure set forth in
Section 4(a). The Exercise Notice shall state the method or methods being
utilized by the Optionee to purchase Shares hereunder. “Fair Market Value” of a
share of Common Stock as of a specified date shall mean the closing price of a
share of Common Stock on the principal securities exchange (including
the Over-the-Counter Bulletin Board) on which such shares are traded on the day
immediately preceding the date as of which Fair Market Value is being
determined, or on the next preceding date on which such shares are traded if no
shares were traded on such immediately preceding day, or if the shares are not
traded on a securities exchange, Fair Market Value shall be deemed to be the
average of the high bid and low asked prices of the shares in the market on
which such shares trade on the day immediately preceding the date as of which
Fair Market Value is being determined or on the next preceding date on which
such high bid and low asked prices were recorded. In no case shall
Fair Market Value be determined with regard to restrictions other than
restrictions which, by their terms, will never lapse. Upon acceptance
of the Exercise Notice and receipt of payment in full, the Company shall cause
to be issued a certificate representing the shares of Common Stock so
purchased.
5. Term and Exercise of the
Option. Subject to Section 2 above, the Option shall be
exercisable beginning as of the date hereof and continuing until 5:00 p.m., New
York City time, on a date which is five years from the date hereof (such date
referred to herein as the "Expiration
Date").
6. Non-transferability. This
Option or any right or interest of the Optionee herein, may not be pledged,
assigned, hypothecated, encumbered or otherwise transferred or assigned without
the consent of the Administrator except by will, qualified domestic relations
order or by the laws of descent and distribution, and may be exercised only by
Optionee (or his or her guardian or legal representative) during his lifetime
and after his death, by his personal representative or by the person entitled
thereto under his will or the laws of intestate succession.
7. Representations and
Warranties of Optionee. (a) Optionee represents and
warrants that this Option is being acquired by Optionee for Optionee’s personal
account, for investment purposes only, and not with a view to the distribution,
resale or other disposition thereof.
(b) Optionee
acknowledges that the Company may issue Shares upon the exercise of the Option
without registering such Shares under the Securities Act of 1933, as amended
(the “Securities Act”),
on the basis of certain exemptions from such registration
requirement. Accordingly, Optionee agrees that his or her exercise of
the Option may be expressly conditioned upon his or her delivery to the Company
of an investment certificate including such representations and undertakings as
the Company may reasonably require in order to assure the availability of such
exemptions, including a representation that Optionee is acquiring the Shares for
investment and not with a present intention of selling or otherwise disposing
thereof and an agreement by Optionee that the certificates evidencing the Shares
may bear a legend indicating such non-registration under the Securities Act and
the resulting restrictions on transfer. Optionee acknowledges that,
because Shares received upon exercise of an Option may be unregistered, Optionee
may be required to hold the Shares indefinitely unless they are subsequently
registered for resale under the Securities Act or an exemption from such
registration is available.
(c) Optionee
hereby acknowledges that, in addition to certain restrictive legends that the
securities laws of the state in which Optionee resides may require, each
certificate representing the Shares may be endorsed with the following
legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”); THEY HAVE BEEN ACQUIRED BY THE
HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAW OF RECEIPT BY THE ISSUER OF AN OPINION
OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION UNDER THE ACT AND
APPLICABLE STATE LAW IS NOT REQUIRED.
(d) Optionee
hereby acknowledges that the Company may, but is not required to, register the
Shares issuable upon exercise of the Option with the United States Securities
and Exchange Commission (the “SEC”) under the Securities Act
in a registration statement on Form S-8.
8. Adjustment in the Shares and
Exercise Price. If the Shares, as presently constituted, shall
be changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another entity (whether by reason of merger,
consolidation, recapitalization, reclassification, split, reverse split,
combination of shares, or otherwise) or if the number of Shares shall be
increased through the payment of a share dividend, the Optionee shall receive
upon exercise of the Option the number and kind of shares or other securities
into which each outstanding Share shall be so changed, or for which each such
Share shall be exchanged, or to which each such Share shall be entitled, as the
case may be. The exercise price and other terms of the Option shall
be appropriately amended to reflect the foregoing events. If there
shall be any other change in the number or kind of the outstanding Shares, or of
any shares or other securities into which the Shares shall have been changed, or
for which the Shares shall have been exchanged, then, if the Board of Directors
shall, in its sole discretion, determine that such change equitably requires an
adjustment in the Option, such adjustment shall be made in accordance with that
determination. Notice of any adjustment shall be given by the Company
to the Optionee.
9. Stop-Transfer
Notices. Optionee understands and agrees that, in order to
ensure compliance with the restrictions referred to herein, the Company may
issue appropriate “stop-transfer” instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
10. No Limitation on Rights of
the Company. The grant of this Option shall not in any way
affect the right or power of the Company to make adjustments, reclassifications,
or changes in its capital or business structure or to merge, consolidate,
dissolve, liquidate, sell, or transfer all or any part of its business or
assets.
11. Rights as a
Shareholder. The Optionee shall have the rights of a
shareholder with respect to the Shares covered by the Option only upon becoming
the holder of record of those Shares.
12. Compliance with Applicable
Law; Interpretation of Agreement.
(a) This
Agreement and the Option evidenced hereby are made and granted pursuant to the
Plan and are in all respects limited by and subject to the express terms and
provisions of the Plan, as it may be construed by the
Administrator.
(b)
Optionee hereby acknowledges receipt of a copy of the Plan. Notwithstanding
anything herein to the contrary, the Company shall not be obligated to cause to
be issued or delivered any Shares or certificates evidencing Shares pursuant to
the exercise of the Option, unless and until the Company is advised by its
counsel that the issuance and delivery of such certificates is in compliance
with all applicable laws, regulations of governmental authority, and the
requirements of any exchange upon which Shares are traded. The
Company shall in no event be obligated to register any securities pursuant to
the Securities Act (as now in effect or as hereafter amended) or to take any
other action in order to cause the issuance and delivery of such Shares or
certificates evidencing Shares to comply with any such law, regulation or
requirement. The Administrator may require, as a condition of the
issuance and delivery of such Shares and certificates evidencing such Shares and
in order to ensure compliance with such laws, regulations, and requirements,
that the Optionee make such covenants, agreements, and representations as the
Administrator, in its sole discretion, considers necessary or
desirable.
(c) The
Administrator shall have full and final authority to construe and interpret this
Agreement and correct defects, supply omissions and to make all other
determinations with respect as the Board deems advisable for the administration
of this Agreement and Option. The term “Administrator” as used in
this Agreement shall include the Board or any committee of the Board that is
charged with administering this Agreement and the Option.
13. Agreement Not a Contract of
Employment. This Agreement is not a contract of employment,
and the terms of the engagement of the Optionee or the relationship of the
Optionee with the Company shall not be affected in any way by this Agreement
except as specifically provided herein. The execution of this
Agreement shall not be construed as conferring any legal rights upon the
Optionee for a continuation of engagement or relationship with the Company, nor
shall it interfere with the right of the Company or any subsidiary thereof to
discharge the Optionee and to treat him without regard to the effect which that
treatment might have upon him as a Optionee.
14. Withholding. The
Company shall have the right to deduct and withhold from payments or
distributions of any kind otherwise due to the Optionee any federal, state or
local taxes of any kind required by law to be so deducted and withheld with
respect to any shares issued upon exercise of the Option. Subject to
the prior approval of the Company, which may be withheld by the Company in its
sole discretion, the Optionee may elect to satisfy such obligations, in whole or
in part by (i) causing the Company to withhold Shares otherwise
issuable pursuant to the exercise of the Option, (ii) delivering to the Company
shares of common stock already owned by the Optionee, or (iii) delivering to the
Company cash or a check to the order of the Company in an amount equal to the
amount required to be so deducted and withheld. The shares delivered
in accordance with method (ii) above or withheld in accordance with method (i)
above shall have a Fair Market Value equal to such withholding obligation as of
the date that the amount of tax to be withheld is to be
determined. The Optionee who has made (with the Company’s approval)
an election pursuant to method (i) or (ii) of this Section 14 may only satisfy
his or her withholding obligation with shares of Common Stock which
are not subject to any repurchase, forfeiture, unfulfilled vesting or other
similar requirements.
15. Notices. All notices,
requests and demands given to or made upon the respective parties hereto shall
be deemed to have been given or made three business days after the date of
mailing when mailed by registered or certified mail, postage prepaid, or on the
date of delivery if delivered by hand, or on the date of delivery by facsimile
or by Federal Express or other reputable overnight delivery service, addressed
to the parties at their addresses set forth below (and in the case of delivery
by facsimile transmission, the facsimile number set forth below) or to such
other addresses or facsimile number furnished by notice given in accordance with
this Section 15:
(a) if to the Company, to Xxxxxx Xxxxx, Chief Financial Officer and
Secretary (facsimile number (000) 000-0000) (b) if to the Optionee, to the
address first set forth above.
16. Governing
Law. Except to the extent preempted by Federal law, this
Agreement shall be construed and enforced in accordance with, and governed by,
New York law, without regard to the choice of laws of such state.
17. Entire
Agreement. This Agreement contains all of the understandings
and agreements between the Company and the Optionee concerning this Option and
supersedes all earlier negotiations and understandings, written or oral, between
the parties with respect thereto. The Company and the Optionee have made no
promises, agreements, conditions or understandings either orally or in writing,
that are not included in the Agreement.
18. Headings. The
headings of Sections and subsections herein are included solely for convenience
of reference and shall not affect the meaning of any of the provisions of the
Agreement.
19. Amendments. The
Agreement may be amended or modified at any time by an instrument in writing
signed by the parties hereto.
20. Counterparts. This
Agreement may be signed in any number of counterparts (which may be transmitted
by facsimile), each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other party hereto.
IN WITNESS WHEREOF, the
Company and the Optionee have duly executed this Stock Option Agreement as of
the date first written above.
|
By:
|
|
|
Name:
Xxxxx Xxxxxxx
|
|
|
Title: President
|
|
|
Optionee:
|
|
|
|
|
|
Print
Name
|
|
|
|
|
|
Signature
|
|
