NON-QUALIFIED STOCK OPTION AGREEMENT
EXHIBIT
4.2
THIS
NON-QUALIFIED STOCK OPTION AGREEMENT is made as of November 13, 2008, by
and
between Yatinoo, Inc., a Delaware corporation having its principal executive
offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (the “Grantor”),
and [_____________________] an individual residing at
[___________________________] (“Optionee”).
WITNESSETH:
WHEREAS,
the
Yatinoo, Inc. 2008 Employee Stock Incentive Plan was adopted by the Board
of
Directors (the “Board”) and the stockholders of the Grantor as of November 13,
2008;
WHEREAS,
the
Grantor desires to provide the Optionee with an opportunity to acquire or
increase his proprietary interest in the business of the Grantor, and, through
stock ownership, to possess an increased personal interest in its continued
success and progress; and
WHEREAS,
the
Grantor desires to increase the incentive of the Optionee to exert his utmost
efforts to improve the business and increase the assets of the
Grantor;
NOW,
THEREFORE,
in
consideration of the mutual covenants set forth in this Agreement and for
other
good and valuable consideration, the Grantor hereby grants the Optionee an
option to purchase shares of common stock of the Grantor, $0.001 par value
per
share (the “Common
Stock”),
upon
the following terms and conditions:
1. Option.
Pursuant
to the Yatinoo, Inc. 2008 Employee Stock Incentive Plan (the “Plan”),
the
Grantor hereby grants to the Optionee a non-qualified stock option (the
“Option”),
not
intended to qualify under Section 422 of the Internal Revenue Code of 1986,
as
amended, on the terms and conditions contained in the Plan, to purchase up
to an
aggregate of [_________] fully paid and non-assessable shares of Common Stock
(the “Shares”).
2. Purchase
Price.
The
purchase price (“Purchase
Price”)
for
the Option shall be $4.00 per share. The Grantor shall pay all original issue
or
transfer taxes on the exercise of the Option and all other fees and expenses
necessarily incurred by the Grantor in connection therewith.
3. Exercise
of the Option.
(a) Except
as
otherwise set forth herein, no Option shall be exercisable until it has vested
in accordance with the provisions of subsection (b) below. Any Option which
vests and thereby becomes exercisable hereunder may be exercised in whole
or in
part, from time to time and at any time, until the Option lapses or terminates.
If the Optionee’s exercise of any Option
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would
require the Grantor to issue a fractional Share, the Grantor will not be
required to issue such fractional Share but it shall pay the Optionee in
cash
the value of such fractional Share. Except as set forth in Section 5, all
unexercised Options (whether or not vested) shall lapse and forever terminate
on
November 13, 2008.
(b) Options
for the purchase of the Shares shall vest as follows: one-third (rounded
to the
nearest Share), or _________ Shares, shall vest and become exercisable on
each
of the three anniversary dates from the date of grant, starting on November
13,
2009 with the final one-third to vest on November 13, 2011. Notwithstanding
the
foregoing, in the event of a Material Transaction (as defined in Section
8.1 of
the Plan) the Option shall be assumed by the surviving entity with appropriate
adjustments as determined by the Board of Directors of the Company, but in
any
event shall accelerate and be fully vested and immediately exercisable upon
completion of the Material Transaction.
4. Manner
of Exercise.
Options
that are exercisable may be exercised in whole or in part at any time during
the
option period by giving written notice to the Grantor specifying the number
of
Shares to be purchased, accompanied by payment in full of the purchase price,
in
cash or by check. Payment in full or in part may be made at the election
of the
Optionee (i) in the form of Common Stock owned by the Optionee (based on
the
Fair Market Value (as that term is defined in the Plan) of the Stock on the
trading day before the Option is exercised) which is not the subject of any
pledge or security interest which have been owned for more than 6 months
or were
purchased in the open market, (ii) by a “same day sale” commitment from a
broker-dealer registered with FINRA to forward the exercise price of the
Option
directly to the Grantor; (iii) by cancellation of indebtedness of the Grantor
to
the Optionee; (iv) by waiver of consideration due to Optionee for services
rendered; (v) by tender of a full recourse promissory note by the Optionee;
(vi)
by a combination of the foregoing, provided that the combined value of all
cash
and cash equivalents and the Fair Market Value of any shares surrendered
to the
Grantor is at least equal to such exercise price and except, with respect
to
(ii) above, such method of payment will not cause a disqualifying disposition
of
all or a portion of the Common Stock received upon exercise of an Incentive
Option. An Optionee shall have the right to dividends and other rights of
a
stockholder with respect to shares of Common Stock purchased upon exercise
of an
Option at such time as the Optionee has given written notice of exercise
and has
paid in full for such shares and has satisfied such conditions that may be
imposed by the Grantor with respect to the withholding of taxes.
Subject
to the terms and conditions hereof, the Options shall be exercisable by notice
to the Grantor on the form provided by the Grantor, a copy of which is attached
hereto. In the event that the Options are being exercised by any person or
persons other than the Optionee, the notice shall be accompanied by proof,
satisfactory to the Grantor, of the right of such person or persons to exercise
any right under this Agreement and the Plan.
5. Termination
of Employment.
(a) In
the
event that the Optionee ceases to be an employee a member of the Board (a
“Director”)
or
otherwise have a relationship with the Grantor (collectively,
“Employment”)
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(otherwise
than by reason of his death or “total disability” (as defined in the Plan) or
for Cause (as that term is defined in the Grantor’s by-laws), the Option may be
exercised (if and to the extent that the Optionee was entitled to do so at
the
date of cessation of Employment) at any time within three months after such
termination, but in no event after the expiration of the term of the Option.
(b) Intentionally
left blank.
(c) In
the
event of the death or total disability of the Optionee while employed or
within
three months after the cessation of being employed with the Grantor, the
Option
may be exercised (if and to the extent that the deceased Optionee was entitled
to do so at the date of his death or total disability) by a legatee or legatees
of the Optionee under such Optionee’s last will and testament or by his personal
representatives or distributees, at any time within twelve months after his
death or total disability, but in no event after the expiration of the term
of
the Option.
6. Assignability
of the Option.
Except
as
specifically provided herein, the Optionee may not give, grant, sell, exchange,
transfer legal title, pledge, assign or otherwise encumber or dispose of
the
Option herein granted or any interest therein, otherwise than by will or
the
laws of descent and distribution, and the Option herein granted shall be
exercisable in whole or in part during the Optionee’s lifetime only by the
Optionee or his guardian or legal representative. Any attempt to transfer,
assign, pledge or otherwise dispose of, or to subject to execution, attachment
or similar process, any Option contrary to the provisions hereof shall be
void
and ineffective and shall give no right to the purported
transferee.
7. Stock
as Investment.
By
accepting the Option herein granted, the Optionee agrees for himself and
his
heirs and legatees that, unless the Shares are sold pursuant to an effective
registration statement under the Securities Act of 1933 (the “Securities
Act”)
or an
exemption from registration, all Shares purchased hereunder shall be acquired
for investment purposes only and not for sale or distribution, and upon the
issuance of any or all of the Shares issuable under the Option, the Optionee,
or
his heirs or legatees receiving such Shares, shall deliver to the Grantor
a
representation in writing, that unless such Shares have been registered for
resale they are being acquired in good faith for investment purposes only
and
not for sale or distribution. The Optionee hereby agrees that (s)he shall
not be
permitted to sell more than 25% of his vested options in any 12 month period.
Grantor may place a “stop transfer” order with respect to such Shares with its
transfer agent and place an appropriate restrictive legend on the stock
certificate evidencing such Shares.
8. Restriction
on Issuance of Shares.
The
Grantor shall not be required to issue or deliver any certificate for Shares
purchased upon the exercise of the Option unless (a) the issuance of such
Shares
has been registered with the Securities and Exchange Commission under the
Securities Act, or counsel to the Grantor shall have given an opinion that
such
registration is not required; (b) approval, to the extent
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required,
shall have been obtained from any state regulatory body having jurisdiction
thereof; and (c) permission for the listing of such shares shall have been
given
by any national securities exchange on which the Common Stock of the Grantor
is
at the time of issuance listed.
9. Adjustment
on Changes in Capitalization.
(a) In
the
event of changes in the outstanding Common Stock of the Grantor by reason
of
stock dividends, stock splits, reverse stock splits, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, separations,
reorganizations or liquidations, the number of shares of Common Stock as
to
which the Option may be exercised shall be correspondingly adjusted by the
Grantor, and the Purchase Price shall be adjusted so that the product of
the
Purchase Price immediately after such event multiplied by the number of options
subject to this Agreement immediately after such event shall be equal to
the
product of the Purchase Price multiplied by the number of shares subject
to this
Agreement immediately prior to the occurrence of such event.
(b) In
the
event of any consolidation or merger of the Grantor with or into another
company, or the conveyance of all or substantially all of the assets of the
Grantor to another company for solely stock and/or securities, the unexercised
portion of the Option granted hereunder shall upon exercise thereafter entitle
the holder thereof to such number of Shares or other securities or property
to
which a holder of Shares would have been entitled to upon such consolidation,
merger or conveyance; and in any such case appropriate adjustment, as determined
by the Board (or the board of directors of a successor entity) shall be made
as
set forth above with respect to any future changes in the capitalization
of the
Grantor or its successor entity.
(c) Any
adjustment in the number of Shares shall apply proportionately to only the
unexercised portion of the Options granted hereunder. If fractions of a Share
would result from any such adjustment, the Grantor (or successor entity)
may,
but is not required to, issue fractional shares in accordance with the Delaware
General Corporation Law.
| 10. |
Rights
of Optionee.
|
The
grant
of the Option (or any other Option under this Agreement or any other agreement)
in any year shall give the Optionee neither any right to similar grants in
future years nor any right to be retained in the employ of the Grantor, such
employment being terminable to the same extent as if the Plan and this Agreement
were not in effect. The right and power of the Grantor to dismiss or discharge
any employee is specifically and unqualifiedly unimpaired by this Agreement.
Neither the Optionee nor any other person legally entitled to exercise any
rights under this Agreement shall be entitled to any of the rights or privileges
of a stockholder of the Grantor with respect to any Shares which may be issuable
upon any exercise pursuant to this Agreement, unless and until the stock
records
of the Grantor reflect the issuance of such Shares.
| 11. |
Notices.
|
Each
notice or other communication relating to this Agreement shall be in writing
and
delivered in person or by registered mail to the Grantor at its office, 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, to the attention of the Chief
Financial Officer. All notices to the
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Optionee
or other person or persons then entitled to exercise any right pursuant to
this
Agreement shall be delivered to the Optionee or such other person or persons
at
the Optionee’s address specified below the Optionee’s signature to this
Agreement or at such other address as the Optionee or such other person may
specify in writing to the Grantor by a notice delivered in accordance with
this
paragraph.
| 12. |
Effect
Upon Employment.
|
This
Agreement does not give Optionee any right to continued service to the
Grantor.
| 13. |
Binding
Effect.
|
Except
as
herein otherwise expressly provided, this Agreement shall be binding upon
and
inure to the benefit of the parties hereto, their successors legal
representatives and assigns.
| 14. |
Agreement
Subject to Plan.
|
Notwithstanding
anything contained herein to the contrary, this Agreement is subject to,
and
shall be construed in accordance with, the terms of the Plan, which is
incorporated by reference herein and made a part of this Agreement as if
fully
set forth herein. In the event of any inconsistency between the terms hereof
and
the terms of the Plan, the terms of the Plan shall govern.
| 15. |
Withholding.
|
Optionee
agrees to cooperate with the Grantor to take all steps necessary or appropriate
for the withholding of any applicable taxes by the Grantor under law or
regulation in connection therewith. In the event the Optionee does not make
the
required withholding payment at the time of exercise, the Grantor may make
such
provisions and take such steps as it, in its sole discretion, may deem necessary
or appropriate for the withholding of any taxes that the Grantor is required
by
any law or regulation of any governmental authority, whether federal, state
or
local, domestic or foreign, to withhold in connection with the exercise of
any
Option, including, but not limited to, (i) the withholding of payment of
all or
any portion of such Option until the Optionee reimburses the Grantor for
the
amount the Grantor is required to withhold with respect to such taxes, or
(ii)
the canceling of any number of shares of Common Stock issuable upon exercise
of
such Option in an amount sufficient to reimburse the Grantor for the amount
it
is required to so withhold, (iii) the selling of any property contingently
credited by the Grantor for the purpose of exercising such Option, in order
to
withhold or reimburse the Grantor for the amount it is required to so withhold,
and/or (iv) withholding the amount due from the Optionee’s wages if he is
employed by the Grantor or any subsidiary thereof.
| 16. |
Miscellaneous.
|
This
Agreement shall be construed under the laws of the State of Delaware, without
application to the principles of conflicts of laws. Headings have been included
herein for convenience of reference only, and shall not be deemed a part
of the
Agreement.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Non-Qualified Stock Option Agreement as
of the
day and year first above written.
YATINOO,
INC.
By:
Name:
Khaled Akid
Title:
CEO
OPTIONEE
Name:
Optionee
Address:
Optionee
Social Security No.:
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LETTER
OF STOCK OPTION EXERCISE
Dated_________
Yatinoo,
Inc.
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Chief Financial Officer
Ladies
and Gentlemen:
I
wish to
purchase the following shares of common stock of Yatinoo, Inc. pursuant to
the
non-qualified stock option granted to me on November 13, 2008 under the Yatinoo,
Inc. 2008 Employee Stock Incentive Plan:
Number
of
Non-qualified Stock Option shares being purchased
hereby
(the “Shares”): ________________________________
The
purchase price for the Shares is $[___] per Share. My check payable to Yatinoo,
Inc. in the amount of $________ in payment of the purchase price is enclosed.*
Please issue the stock certificate(s) for these Shares in my name as
follows:
_______________________________________________________
**Name
_______________________________________________________
_______________________________________________________
Address
_______________________________________________________
Social
Security Number
Sincerely
yours,
_______________________________
Signature
( )
Office
Telephone/Home Telephone
| * |
If
stock is used in payment, please contact the CEO of the Company,
Khaled
Akid, at 000-000-0000.
|
| ** |
If
you wish to have the Shares issued in your name and that of another
person
jointly, we suggest that the following form be used: “(Your name) and
(name of other person), as joint tenants with right of survivorship.”
|
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