Exhibit 4.9
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS STOCK OPTION AGREEMENT (the "Agreement") is entered into as of the
______ day of _______, 200__ between UltraStrip Systems, Inc. (the "Company")
and ___________ (the "Optionee").
WHEREAS, by action taken by the board of directors (the "Board") of the
Company, it has adopted the 2003 Equity Incentive Plan (the "Plan"); and
WHEREAS, pursuant to the Plan, it has been determined that in order to
enhance the ability of the Company to attract and retain qualified independent
contractors and consultants, the Company has granted the Optionee the right to
purchase the common stock of the Company pursuant to stock options.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereafter set forth and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF NON-QUALIFIED OPTIONS. The Company irrevocably grants to
the Optionee, as a matter of separate agreement and not in lieu of salary or
other compensation for services, the right and option to purchase all or any
part of an aggregate of __________ shares of authorized but unissued or treasury
common stock of the Company (the "Options") on the terms and conditions herein
set forth.
2. PRICE. The exercise price of the shares of common stock subject to
the Options shall be $________.
3. VESTING-WHEN EXERCISABLE.
(a) The Options shall vest and become exercisable as follows:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________.
(b) Subject to Sections 3 and 4 of this Agreement, the Options
shall remain exercisable for _______ years from the date of grant.
Notwithstanding anything to the contrary in this Agreement, the Options may not
be exercised more than 10 years from the date the Options are granted.
(c) Notwithstanding any other provision of this Agreement, all
Options, at the option of the Board of Directors or the Compensation Committee,
whether vested or unvested shall be immediately forfeited in the event of:
(1) Termination of the Optionee by the Company for any
reason including without cause and including, but not limited to, fraud, theft,
dishonesty and violation of Company policy;
(2) Purchasing or selling securities of the Company without
written authorization in accordance with the Company's inside information
guidelines then in effect;
(3) Breaching any duty of confidentiality including that
required by the Company's inside information guidelines then in effect;
(4) Competing with the Company;
(5) Being unavailable for consultation after termination of
the Optionee if such availability is a condition of any Agreement between the
Company and the Optionee;
(6) Recruitment of Company personnel;
(7) Failure to assign any invention or technology to the
Company if such assignment is a condition of any agreement between the Company
and the Optionee; or
(8) A finding by the Company's Board that the Optionee has
acted against the interests of the Company.
4. TERMINATION OF RELATIONSHIP.
(a) If for any reason, except death or disability as provided
below, the Optionee ceases to perform services for the Company, all rights
granted hereunder shall terminate effective three months from such date.
(b) If the Optionee shall die while an independent contractor for
or consultant to the Company, any Transferee, as defined herein, shall have the
right within 12 months from such date to exercise the Optionee's vested Options,
subject to Section 3(c). For the purpose of this Agreement, "Transferee" shall
mean the personal representative of the estate or a person to whom such shares
are transferred by will or by the laws of descent and distribution.
(c) If the Optionee becomes disabled while performing services for
the Company within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, the Optionee shall have the right within 12 months from the date the
Optionee became disabled to exercise the Optionee's vested Options.
(d) No transfer of the Options by the Optionee by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the letters testamentary or such other evidence as the Board may deem necessary
to establish the authority of the estate and the acceptance by the Transferee or
Transferees of the terms and conditions of the Options.
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(e) Notwithstanding anything contained in this Section 4, an
Option may not be exercised later than the Option's expiration date set forth in
Section 3(b).
5. PROFITS ON THE SALE OF CERTAIN SHARES; REDEMPTION. If any of the
events specified in Section 3(c) of this Agreement occur within one year from
the last date services are performed by the Optionee for the Company (the
"Termination Date") (or such longer period required by any written agreement),
all profits earned from the sale of the Company's securities, including the sale
of shares of common stock underlying the Options, during the two-year period
commencing one year prior to the Termination Date shall be forfeited and
forthwith paid by the Optionee to the Company. Further, in such event, the
Company may at its option redeem shares of common stock acquired upon exercise
of the Options. The Company's rights under this Section 5 do not lapse one year
from the Termination Date but are a contract right subject to any appropriate
statutory limitation period.
6. METHOD OF EXERCISE. The Options shall be exercisable by a written
notice which shall:
(a) state the election to exercise the Options, the number of
shares to be exercised, the person in whose name the stock certificate or
certificates for such shares of common stock is to be registered, his address
and social security number (or if more than one, the names, addresses and social
security numbers of such persons);
(b) contain such representations and agreements as to the holder's
investment intent with respect to such shares of common stock as set forth in
Section 10 hereof;
(c) be signed by the person or persons entitled to exercise the
Options and, if the Options are being exercised by any person or persons other
than the Optionee, be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person or persons to exercise the Options.
(d) be accompanied by full payment of the purchase or exercise
price therefor in United States dollars by (i) cash, (ii) check, (iii)
promissory note if approved by the Compensation Committee or (iv) any
combinations of the foregoing methods of payment.
The certificate or certificates for shares of common stock as to which the
Options shall be exercised shall be registered in the name of the person or
persons exercising the Options.
7. ANTI-DILUTION PROVISIONS. The Options granted hereunder shall have
the anti-dilution rights set forth in the Plan.
8. NECESSITY TO BECOME HOLDER OF RECORD. Neither Optionee nor his/her
estate, as provided in Section 4(d), shall have any rights as a shareholder with
respect to any shares of common stock covered by the Options until such person
shall have become the holder of record of such shares. No adjustment shall be
made for cash dividends or cash distributions, ordinary or extraordinary, in
respect of such shares for which the record date is prior to the date on which
he/she shall become the holder of record thereof.
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9. RESERVATION OF RIGHT TO TERMINATE RELATIONSHIP. Nothing contained in
this Agreement shall restrict the right of the Company to terminate the
relationship of the Optionee at any time, with or without cause. The termination
of the relationship of the Optionee by the Company, regardless of the reason
therefor, shall have the results provided for in Sections 4 and 5 of this
Agreement.
10. CONDITIONS TO EXERCISE OF OPTIONS. In order to enable the Company to
comply with the Securities Act of 1933 (the "Securities Act") and relevant state
law, the Company may require the Optionee, or any Transferee, as a condition of
the exercising of the Options granted hereunder, to give written assurance
satisfactory to the Company that the shares subject to the Options are being
acquired for his own account, for investment only, with no view to the
distribution of same, and that any subsequent resale of any such shares either
shall be made pursuant to a registration statement under the Securities Act and
applicable state law which has become effective and is current with regard to
the shares being sold, or shall be pursuant to an exemption from registration
under the Securities Act and applicable state law.
The Options are subject to the requirement that, if at any time the Board
shall determine, in its discretion, that the listing, registration, or
qualification of the shares of common stock subject to the Options upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary as a condition of, or
in connection with the issue or purchase of shares under the Options, the
Options may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected.
11. STOP-TRANSFER ORDERS.
(a) The Optionee agrees that, in order to ensure compliance with
the restrictions set forth in the Plan and this Agreement, the Company may issue
appropriate "stop transfer" instructions to its duly authorized 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.
(b) The Company shall not be required (i) to transfer on its books
any shares of the Company's common stock that have been sold or otherwise
transferred in violation of any of the provisions of the Plan or the Agreement
or (ii) to treat the owner of such shares of common stock or to accord the right
to vote or pay dividends to any purchaser or other transferee to whom such
shares of common stock shall have been so transferred.
12. DUTIES OF COMPANY. The Company shall at all times during the term of
the Options:
(a) Reserve and keep available for issue such number of shares of
its authorized and unissued common stock as will be sufficient to satisfy the
requirements of this Agreement;
(b) Pay all original issue taxes with respect to the issue of
shares pursuant hereto and all other fees and expenses necessarily incurred by
the Company in connection therewith;
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(c) Use its best efforts to comply with all laws and regulations
which, in the opinion of counsel for the Company, shall be applicable thereto.
13. PARTIES BOUND BY PLAN. This Agreement shall be construed in
accordance and consistent with, and subject to, the provisions of the Plan. The
Plan and each determination, interpretation or other action made or taken
pursuant to the provisions of the Plan shall be final and shall be binding and
conclusive for all purposes on the Company and the Optionee and his respective
successors in interest. In the event of a conflict between the terms and
conditions of the Plan and this Agreement, the terms and conditions of the Plan
shall prevail. Any capitalized term not defined in the Agreement shall have the
meaning given to such term by the Plan.
14. SEVERABILITY. In the event any parts of this Agreement are found to
be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
15. ARBITRATION. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in Xxxxxx County, Florida (unless the
parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. The decision and award made by the arbitrator shall be final, binding
and conclusive on all parties hereto for all purposes, and judgment may be
entered thereon in any court having jurisdiction thereof.
16. BENEFIT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their legal representatives, successors and
assigns.
17. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar overnight next business day delivery, or by facsimile delivery
followed by overnight next business day delivery, as follows:
The Optionee:
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The Company: UltraStrip Systems, Inc.
0000 X.X. Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address as any of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted from the date of transmission.
18. ATTORNEY'S FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs and expenses.
19. GOVERNING LAW. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or performance
shall be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
20. ORAL EVIDENCE. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
22. ADDITIONAL DOCUMENTS. The parties hereto shall execute such
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
23. SECTION OR PARAGRAPH HEADINGS. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
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IN WITNESS WHEREOF the parties hereto have set their hand and seals the
day and year first above written.
WITNESSES: ULTRASTRIP SYSTEM, INC.
_______________________________ By:________________________________
Xxxxx X. Xxxxxxx III,
Chief Financial Officer
OPTIONEE
______________________________ ________________________________
________________________________
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