EXHIBIT 10.9
WARP TECHNOLOGY HOLDINGS, INC.
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STOCK OPTION GRANT
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Under the WARP Technology Holdings, Inc. 2002 Stock Incentive Plan this
STOCK OPTION GRANT, dated as of ___________, 2002 (the "Date of Grant"), is
granted by WARP Technology Holdings, Inc. (the "Company") to ______________ (the
"Optionee"), whose status under the WARP Technology Holdings, Inc. 2002 Stock
Incentive Plan is described on the Signature Page hereof.
WHEREAS, the Optionee is now an employee or director of the Company or
a parent or subsidiary thereof, or an attorney, consultant, adviser or other
provider of services to the Company or parent or subsidiary thereof and the
Company desires to have the Optionee remain in its employ or service and desires
to encourage stock ownership by the Optionee and to increase the Optionee's
proprietary interest in the Company's success; and as an inducement thereto has
determined to grant to the Optionee the option herein provided for, so that the
Optionee may thereby be assisted in obtaining an interest, or an increased
interest, as the case may be, in the stock ownership of the Company;
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Grant. Pursuant to the WARP Technology Holdings, Inc. 2002 Stock
Incentive Plan (the "Plan"), the Company hereby grants to the Optionee an option
(the "Option") to purchase _________ Shares of the Company's common stock
$.00001 par value per share (the "Option Shares") at the price of $. ___ per
share (the "Purchase Price" or "Exercise Price"). Both the Purchase Price and
the number of Option Shares purchasable may be adjusted pursuant to Paragraph 10
hereof.
2. Terms of the Plan. The Plan, a copy of which is attached hereto, is
incorporated herein by reference and is made a part of this Agreement as if
fully set forth herein. This Agreement is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan as
the same exists at the time this Agreement was entered into. The Plan shall
control in the event there is any express conflict between the Plan and the
terms hereof, and on such matters that are not expressly covered in this
Agreement. Subsequent amendments of the Plan shall not adversely affect the
Optionee's rights under this Agreement.
3. Term and Vesting. (a) The option period ("Term") of each Option
shall commence on the Date of Grant and expires at 5:00 p.m. Eastern Standard
Time on the __ anniversary of the Date of Grant (the "Expiration Date"), except
as provided in Paragraph 8 hereof.
(b) The Options granted herein shall vest in accordance with the
following formula:
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(i) [one-third (1/3) of the Options granted shall vest on the Date
of Grant;
(ii) an additional one-third (1/3) of the Options granted shall
vest upon the date that is twelve (12) months from the Date of
Grant; and
(iii) an additional one-third (1/3) of the Options granted shall
vest upon the date that is twenty-four (24) months from the
Date of Grant.]
4. Exercise of Option. During the Optionee's life, this Option may only
be exercised by him or her. This Option may only be exercised by presentation at
the principal offices of the Company of written notice to the Company's
Secretary advising the Company of the Optionee's election to purchase Option
Shares, specifying the number of Option Shares being purchased, accompanied by
payment. No Option Shares shall be issued until full payment is made therefor.
Payment shall be made either (a) in cash, represented by bank of cashier's
check, certified check or money order, (b) by delivering shares of the Company's
Common Stock of the same class as the Option Shares, which have been
beneficially owned by the Optionee, the Optionee's spouse, or both of them for a
period of at least six (6) months prior to the date of exercise (the "Delivery
Stock"), having a Fair Market Value on the date of exercise equal to the
Purchase Price of the Option Shares being exercised and purchased under the
Option, or (c) by advising the Company, at the time the Option is exercised, to
withhold from exercise under the Option the appropriate number of Option Shares,
the aggregate market value of which on the date of exercise of the Option is
equal to the aggregate cash Purchase Price of the Option Shares being exercised
and purchased under the Option, and such withholdings shall constitute full
payment for the non-withheld Option Shares issued upon exercise. The Board of
Directors (or by its designation, the Compensation Committee) shall have the
authority to determine whether any corporate shares offered by the Optionee in
payment of the Exercise Price of Option Shares are acceptable to the Company,
and the Board's (or Committee's) discretion in this regard shall be absolute.
5. Issuance of Option Shares: Restrictive Legend. (a) Upon proper
exercise of this Option, the Company shall mail or deliver to the Optionee, as
promptly as practicable, a stock certification or certificates representing the
Option Shares purchased, subject to clause (b) below. The Company shall not be
required to sell or issue any shares under the Option if the issuance of such
shares shall constitute a violation of any applicable law or regulation or of
any requirement of any national securities exchange upon which the Company's
common stock may be listed.
(b) Upon any exercise of this Option, if a registration statement under
the Securities Act of 1933 (the "Act") is not in effect with respect to the
Option Shares, then the Company shall not be required to issue any Option Shares
unless the Company has received evidence reasonably satisfactory to it to the
effect that the Optionee is acquiring such shares for investment purposes and
not with a view to the distribution thereof. Any reasonable determination in
this connection by the Company shall be final, binding and conclusive.
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(c) Unless and until removed as provided below, each certificate
evidencing unregistered Option Shares shall bear a legend in substantially the
following form:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or under the
securities laws of any state and may not be sold or transferred except
upon such registration or upon receipt by this Corporation of an
opinion of counsel satisfactory to this Corporation, in form and
substance satisfactory to this Corporation, that registration is not
required for such sale or transfer."
The Company shall issue a new certificate which does not contain such
legend if (i) the shares represented by such certificate are sold pursuant to a
registration statement (including a current prospectus) which has become
effective under the Act, or (ii) the staff of the Securities and Exchange
Commission shall have issued a "no action" letter, reasonably satisfactory to
the Company's counsel, to the effect that such shares may be freely sold and
thereafter traded publicly without registration under the Act, or (iii) the
Company's counsel, or other counsel acceptable to the Company, shall have
rendered an opinion satisfactory to the Company to the effect that such shares
may be freely sold and thereafter publicly traded without registration under the
Act. The Company may, but shall in no event be obligated to register any
securities covered hereby pursuant to the Act. The Company shall not be
obligated to take any other affirmative action in order to cause the exercise of
the Option or the issuance of any Option Shares to comply with any law or
regulation of any governmental authority.
6. Transfer of Option Shares. Option Shares issued upon exercise of
this Option which have not been registered under the Act shall be transferable
by a holder thereof only upon compliance with the conditions in this Paragraph.
Before making any transfer of Option Shares, the holder of shares shall give
written notice to the Company of the holder's intention to make the transfer,
describing the manner and circumstances of the transfer. If in the opinion of
the Company's counsel, or of other counsel acceptable to the Company, the
proposed transfer may be effected without registration under the Act, the
Company shall so notify the holder and the holder shall be entitled to transfer
such shares as described in the holder's notice to the Company. If such counsel
opines that the transfer may not be made without registration under the Act,
then the Company shall so notify the holder, in which event the holder shall not
be entitled to transfer the shares until (i) the Company notifies the holder
that it is permissible to proceed with the transfer, or (ii) registration of the
shares under the Act has become effective. The Company may issue "stop transfer"
instructions to its transfer agent with respect to any or all of the Option
Shares as it deems necessary to prevent any violation of the Act.
7. Transfer or Encumbrance of this Option Prohibited. This Option may
not be transferred or assigned in any manner by the Optionee, except by will or
trust upon the Optionee's death or by operation of law under the laws of descent
and distribution, or pursuant to a "qualified domestic relation order" as
defined in the rules of the Securities and Exchange Commission. The same
restriction on transfer or assignment shall apply to heirs, devises,
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beneficiaries or other persons acquiring this Option or an interest herein under
such an instrument or by operation of law. Further, this Option shall not be
pledged, hypothecated or otherwise encumbered, by operation of law or otherwise,
nor shall it be subject to execution, attachment or similar process.
8. Termination of Service, Death or Disability. (a) Except as may be
otherwise expressly provided in this Agreement, this Option shall terminate as
follows:
(i) Upon termination of the Optionee's employment with the Company
for cause;
(ii) At the expiration of three (3) months from the date of the
Optionee's resignation or termination of the Optionee's
employment with the Company without cause, for any reason
other than death or disability; or
(iii) At the expiration of twelve (12) months after the death or
disability of the Optionee.
(b) "Employment with the Company" shall include employment with or
service as an employee, officer or director of (or in the case of a consultant,
adviser or agent, engagement by) any parent or subsidiary of the Company, and
this Option shall not be affected by the Optionee's transfer of employment among
the Company and any parent or subsidiary thereof. An Optionee's employment with
the Company shall not be deemed interrupted or terminated by a bona fide leave
of absence (such as sabbatical leave or employment by the Government) duly
approved, military leave or sick leave. This Option shall not be affected in the
event the Optionee suffers a significant diminution in his duties or any
significant reduction in his overall compensation. After the death of the
Optionee, his executors, administrators or personal representatives, or any
person or persons to whom the Option may be transferred by will, trust or by the
laws of descent and distribution, shall have the right, at any time prior to
termination hereof, to exercise this Option pursuant to its terms.
(c) In regard to attorneys, consultants, advisers or other providers of
services, employment with the Company means that professional or other services
are provided to the Company or any parent or subsidiary thereof, and employment
shall be deemed to cease when the Company has given written notice that such
services are no longer to be provided.
(d) This Option confers no right upon the Optionee with respect to the
continuation of his employment (or his position as an officer, director or other
provider of services) with the Company or any parent or subsidiary of the
Company, and shall not interfere with the right of the Company, or any parent or
subsidiary of the Company, to terminate such relationship(s) at any time in
accordance with law and any agreements then in force.
9. No Rights as Stockholder. The Optionee shall have no rights as a
stockholder with respect to Option Shares until the date of issuance of a stock
certificate for such shares. No adjustment for dividends, or otherwise, except
as provided in Xxxxxxxxx 00, xxxxx xx made if the record date therefor is prior
to the date of exercise of such Option.
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10. Changes in the Company's Capital Structure. The existence of this
Option shall not limit or affect in any way the right or power of the Company or
its shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Option
Shares or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
However,
(a) If, prior to the Company's delivery of all the Option Shares
subject to this Option, the Company shall effect a subdivision (split) or
combination (reverse split) of shares or other capital readjustment, the payment
of a common stock dividend, or other increase or reduction of a number of shares
of common stock outstanding, without receiving compensation therefor in money,
services or property, then (i) in the event of an increase in the number of such
shares outstanding, the Purchase Price shall be proportionately reduced and the
number of Option Shares then still purchasable shall be proportionately
increased; and (ii) in the event of a reduction in the number of such shares
outstanding, the Purchase Price payable per share shall be proportionately
increased and the number of Option Shares then still purchasable shall be
proportionately reduced.
(b) Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or service either upon direct
sales or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the Purchase Price or the number of Option Shares
subject to this Option.
11. Withholding Taxes. Pursuant to applicable federal and state laws,
the Company may be required to collect withholding taxes upon any exercise of
this Option. The Company may require, as condition to any exercise of this
Option, that the Optionee concurrently pay to the Company the entire amount or
portion of any taxes which the Company is required to withhold by reason of such
exercise, in such amount as the Board of Directors or Compensation Committee of
the Board in its discretion may determine. In lieu of part or all of any such
payment, the Optionee may elect, with the consent of the Board of Directors or
Compensation Committee, to have the Company withhold from the Option Shares to
be issued upon exercise of this Option that number of shares having a fair
market value equal to the amount which the Company is required to withhold.
12. Notice, etc. Any Notice hereunder by the Optionee shall be given to
the Company in writing, and such notice and any payment by the Optionee
hereunder shall be deemed duly given or made only upon receipt thereof at the
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Company's office at 000 Xxxx 00 Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or
at such other address as the Company may designate by notice to the Optionee.
Any notice or other communication to the Optionee hereunder shall be in writing
and shall be deemed duly given or made if mailed or delivered to the Optionee at
the last address as the Optionee may have on file with the Company's Secretary.
This Option shall be governed under and construed in accordance with the laws of
State of Delaware (or applicable successor law if the Company should
re-domicile). This address shall be binding on the Company and the Optionee and
all successors, assigns, heirs, devisees and personal representatives thereof.
NOTE: This Option MUST match the Control copy maintained by the
Company, in all particulars.
IN WITNESS WHEREOF, the Company, through its duly authorized officer,
and the Optionee have executed this Stock Option Grant as of the Date below.
DATED: __________, 2002 WARP TECHNOLOGY HOLDINGS, INC.
By: ___________________________
Xxxx Xxxxxxx
Co-Chairman, CEO and President
OPTIONEE NAME and STATUS
___________________________
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