EXHIBIT 99.2
1996 STOCK OPTION PLAN
INCENTIVE STOCK OPTION CONTRACT
THIS INCENTIVE STOCK OPTION CONTRACT entered into as of , 1998 between
SMARTSERV ONLINE, INC., a Delaware corporation (the "Company"), and _________
(the "Optionee").
W I T N E S S E T H:
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1. The Company, in accordance with the allotment made by the committee
of the Company's Board of Directors (the "Committee") and subject to the terms
and conditions of the 1996 Stock Option Plan of the Company (the "Plan"), grants
to the Optionee an option to purchase an aggregate of _____ shares of the Common
Stock, $.01 par value per share, of the Company ("Common Stock") at an exercise
price of $_____ per share, being at least equal to the fair market value of such
shares of Common Stock on the date hereof. This option is intended to constitute
an incentive stock option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), although the Company makes no
representation or warranty as to such qualification.
2. The term of this option shall be 10 years from the date hereof,
subject to earlier termination as provided in the Plan. However, this option
shall not be exercisable until the first anniversary of the date hereof, at
which time it shall become exercisable in full. The right to purchase shares of
Common Stock under this option shall be cumulative, so that if the full number
of shares purchasable in a period shall not be purchased, the balance may be
purchased at any time or from time to time thereafter, but not after the
expiration of the option. Notwithstanding any of the foregoing, in no event may
a fraction of a share of Common Stock be purchased under this option.
3. This option shall be exercised by giving written notice to the
Company at its then principal office, presently Metro Center, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attn: Chief Financial Officer, stating that the
Optionee is exercising the option hereunder, specifying the number of shares
being purchased and accompanied by payment in full of the aggregate purchase
price therefor (a) in cash or by certified check, (b) with previously acquired
shares of Common Stock which have been held by the Optionee for at least six
months, or (c) a combination of the foregoing.
4. The Company may withhold cash and/or shares of Common Stock to be
issued to the Optionee in the amount which the Company determines is necessary
to satisfy its obligation to withhold taxes or other amounts incurred by reason
of the grant or exercise of this option or the disposition of the underlying
shares of Common Stock. Alternatively, the Company may require the Optionee to
pay the Company such amount in cash promptly upon demand.
5. In the event of any disposition of the shares of Common Stock
acquired pursuant to the exercise of this option within two years from the date
hereof or one year from the date of transfer of such shares to him, the Optionee
shall notify the Company thereof in writing within 30 days after such
disposition. In addition, the Optionee shall provide the Company on demand with
such information as the Company shall reasonably request in connection with
determining the amount and character of the Optionee's income, the Company's
deduction and its obligation to withhold taxes or other amounts incurred by
reason of such disqualifying disposition, including the amount thereof. The
Optionee shall pay the Company in cash on demand the amount, if any, which the
Company determines is necessary to satisfy such withholding obligation.
6. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current at the time of exercise or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
such exercise. The Optionee hereby represents and warrants to the Company that,
unless such a Registration Statement is effective and current at the time of
exercise of this option, the shares of Common Stock to be issued upon the
exercise of this option will be acquired by the Optionee for his own account,
for investment only and not with a view to the resale or distribution thereof.
In any event, the Optionee shall notify the Company of any proposed resale of
the shares of Common Stock issued to him upon exercise of this option. Any
subsequent resale or distribution of shares of Common Stock by the Optionee
shall be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the sale of shares of Common
Stock being sold, or (y) a specific exemption from the registration requirements
of the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the Company
(unless waived by the Company) with a favorable written opinion of counsel, in
form and substance satisfactory to the Company, as to the applicability of such
exemption to the proposed sale or distribution. Such representations and
warranties shall also be deemed to be made by the Optionee upon each exercise of
this option. Nothing herein shall be construed as requiring the Company to
register the shares subject to this option under the Securities Act.
7. Notwithstanding anything herein to the contrary, if at any time the
Committee shall determine, in its discretion, that the listing or qualification
of the shares of
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Common Stock subject to this option on any securities exchange or under any
applicable law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition to, or in connection with, the granting
of an option or the issue of shares of Common Stock hereunder, this option may
not be exercised in whole or in part unless such listing, qualification, consent
or approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
8. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may issue such
"stop transfer" instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary or appropriate to (a) prevent
a violation of, or to perfect an exemption from, the registration requirements
of the Securities Act, (b) implement the provisions of the Plan or this Contract
or any other agreement between the Company and the Optionee with respect to such
shares of Common Stock, or (c) permit the Company to determine the occurrence of
a "disqualifying disposition," as described in Section 421(b) of the Code, of
the shares of Common Stock transferred upon the exercise of this option.
9. Nothing in the Plan or herein shall confer upon the Optionee any
right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate such employment at any time for any reason
whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
10. The Company and the Optionee agree that they will both be subject
to and bound by all of the terms and conditions of the Plan, a copy of which is
attached hereto and made a part hereof. Any capitalized term not defined herein
shall have the meaning ascribed to it in the Plan. In the event of a conflict
between the terms of this Contract and the terms of the Plan, the terms of the
Plan shall govern.
11. The Optionee represents and agrees that he will comply with all
applicable laws relating to the Plan and the grant and exercise of this option
and the disposition of the shares of Common Stock acquired upon exercise of the
option, including without limitation, federal and state securities and "blue
sky" laws.
12. This option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
13. This Contract shall be binding upon and inure to the benefit of any
successor or assign of the Company and to any heir, distributee, executor,
administrator or legal representative entitled to the Optionee's rights
hereunder.
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14. This Contract shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules thereof.
15. The invalidity, illegality or unenforceability of any provision
herein shall not affect the validity, legality or enforceability of any other
provision.
16. The Optionee agrees that the Company may amend the Plan and the
options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
of the day and year first above written.
SMARTSERV ONLINE, INC.
By: ________________________________________
_____________________________________________
, Optionee
_____________________________________________
_____________________________________________
Address
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