Exhibit No. 4.6
Form SB-2
Buyers United, Inc.
STOCK OPTION AGREEMENT
Option for the Purchase of __________ Shares of Common Stock Par Value $0.001
THE HOLDER OF THIS OPTION, BY ACCEPTANCE HEREOF, BOTH WITH RESPECT TO THE OPTION
AND COMMON STOCK ISSUABLE UPON EXERCISE OF THE OPTION, AGREES AND ACKNOWLEDGES
THAT THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE TRANSFERRED OR SOLD IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR OTHER COMPLIANCE UNDER THE SECURITIES ACT OR THE LAWS
OF THE APPLICABLE STATE OR A "NO ACTION" OR INTERPRETIVE LETTER FROM THE
SECURITIES AND EXCHANGE COMMISSION OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER, AND ITS COUNSEL, TO THE EFFECT THAT THE SALE OR
TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE
STATUTES.
This is to certify that, for value received, ___________ (the "Optionee")
is entitled to purchase from XXX, Inc. (the "Company"), on the terms and
conditions hereinafter set forth, all or any part of ________ shares ("Option
Shares") of the Company's common stock, par value $0.001 (the "Common Stock"),
at the purchase price of $____ per share ("Option Price"). Upon exercise of this
option in whole or in part, a certificate for the Option Shares so purchased
shall be issued and delivered to the Optionee, upon presentation and surrender
to the Company of the duly executed form of purchase attached hereto accompanied
by payment of the purchase price of each share purchased either in cash or by
certified or bank cashier's check payable to the order of the Company. If less
than the total option is exercised, a new option of similar tenor shall be
issued for the unexercised portion of the options represented by this Agreement.
Upon such exercise, the Company shall issue and cause to be delivered with all
reasonable dispatch (and in any event within 10 business days of such exercise)
to or upon the written order of the Optionee at its address, and in the name of
the Optionee, a certificate or certificates for the number of full Option Shares
issuable upon the exercise together with such other property (including cash)
and securities as may then be deliverable upon such exercise. Such certificate
or certificates shall be deemed to have been issued and the Optionee shall be
deemed to have become a holder of record of such Option Shares as of the date of
the surrender of the purchase form.
This option is granted subject to the following further terms and conditions:
1. This option to purchase _________ common shares shall vest and become
exercisable according to the following schedule:
__________ shares at any time commencing on ________, and will expire
on ____________;
__________ shares at any time commencing on ________, and will expire
on ____________;
__________ shares at any time commencing on ________, and will expire
on ____________
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2. Non-Compete Provisions. In the event that the employment of the
Employee shall terminate by reason of retirement, the rights of the
Employee to the Option shall be subject to the conditions that until
the Option is exercised, the Employee shall (a) not engage, either
directly or indirectly, in any manner or capacity as advisor,
principal, agent, partner, officer, director, employee, member of any
association or otherwise, in any business or activity which is at the
time competitive with any business or activity conducted by the
Corporation or any of its direct or indirect subsidiaries, and (b) be
available, unless having died, at reasonable times for consultations
at the request of the Corporation's management with respect to phases
of the business with which actively connected during employment, but
such consultations shall not (except in the case of any employee whose
active service was outside of the United States) be required to be
performed at any place or places outside of the United States of
America or during usual vacation periods or periods of illness or
other incapacity. In the event that either of the above conditions is
not fulfilled, the Employee shall forfeit all rights to any
unexercised portion of the Option as of the date of the breach of
condition. Any determination by the Board of Directors of the
Corporation, which shall act upon the recommendation of the Chairman,
that the Employee is or has engaged in a competitive business or
activity as aforesaid or has not been available for consultations as
aforesaid shall be conclusive.
3. If the Employee's employment terminates:
(a) By reason of retirement, disability, lack of performance, or for
any other reason that may determined at the sole discretion of XXX,
Inc. prior to exercise, expiration, surrender cancellation of the
Option, the Option shall terminate not later than the end of the
Option term, during which period the Option may be exercised only to
the extent that it was exercisable on the date of such termination. In
the event of the death of the Employee after termination by reason of
retirement or disability, the Option shall terminate two years after
the date of the Employee's death, during which period the Option may
be exercised by the person or persons to whom the Employee's rights
shall pass by will or by the applicable laws of descent or
distribution to the extent that it was exercisable on the date of the
employee's death.
(b) By reason of death prior to the exercise, expiration, surrender or
cancellation of the Option, the Option shall terminate two years after
the date of the Employee's death, but not later than the end of the
Option term, during which period the Option may be exercised at any
time by their person or persons to whom the Employee's rights shall
pass by will or by the applicable laws of descent or distribution,
regardless of whether the second year of the Option term has
commenced.
(c) Other than by reason of death, retirement or disability prior to
the exercise, expiration, surrender or cancellation of the Option, the
Option shall terminate forthwith.
Notwithstanding anything to the contrary in this paragraph, the Option
shall terminate forthwith if the Employee's employment terminates
within five years from the date hereof.
4. The Optionee acknowledges that the shares subject to this option have
not and will not be registered as of the date of exercise of this
option under the Securities Act or the securities laws of any state.
The Optionee acknowledges that this option and the shares issuable on
exercise of the option, when and if issued, are and will be
"restricted securities" as defined in Rule 144 promulgated by the
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Securities and Exchange Commission and must be held indefinitely
unless subsequently registered under the Securities Act and any other
applicable state registration requirements.
5. The number of Option Shares purchasable upon the exercise of this
option and the Option Price per share shall be subject to adjustment
from time to time subject to the following terms. If the outstanding
shares of Common Stock of the Company are increased, decreased,
changed into or exchanged for a different number or kind of shares of
the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split,
the Company or its successors and assigns shall make an appropriate
and proportionate adjustment in the number or kind of shares, and the
per-share Option Price thereof, which may be issued to the Optionee
under this Agreement upon exercise of the options granted under this
Agreement. The purchase rights represented by this option shall not be
exercisable with respect to a fraction of a share of Common Stock. Any
fractional shares of Common Stock arising from the dilution or other
adjustment in the number of shares subject to this option shall
rounded up to the nearest whole share.
6. The Company covenants and agrees that all Option Shares which may be
delivered upon the exercise of this option will, upon delivery, be
free from all taxes, liens, and charges with respect to the purchase
thereof; provided, that the Company shall have no obligation with
respect to any income tax liability of the Optionee and the Company
may, in its discretion, withhold such amount or require the Optionee
to make such provision of funds or other consideration as the Company
deems necessary to satisfy any income tax withholding obligation under
federal or state law.
7. The Company agrees at all times to reserve or hold available a
sufficient number of shares of Common Stock to cover the number of
Option Shares issuable upon the exercise of this and all other options
of like tenor then outstanding.
8. This option shall not entitle the holder hereof to any voting rights
or other rights as a shareholder of the Company, or to any other
rights whatsoever, except the rights herein expressed, and no
dividends shall be payable or accrue in respect of this option or the
interest represented hereby or the Option Shares purchasable hereunder
until or unless, and except to the extent that, this option shall be
exercised..
9. The holder of this option, by acceptance hereof, acknowledges and
agrees that this option is not transferable by the Optionee except by
will or the laws of descent or distribution. The Company may deem and
treat the registered owner of this option as the absolute owner hereof
for all purposes and shall not be affected by any notice to the
contrary.
10. In the event that any provision of this Agreement is found to be
invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all
such other provisions shall be given full force and effect to the same
extent as though the invalid or unenforceable provision were not
contained herein.
11. This Agreement shall be governed by and construed in accordance with
the internal laws of the state of Utah, without regard to the
principles of conflicts of law thereof.
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12. Except as otherwise provided herein, this Agreement shall be binding
on and inure to the benefit of the Company and the person to whom an
option is granted hereunder, and such person's heirs, executors,
administrators, legatees, personal representatives, assignees, and
transferees.
IN WITNESS WHEREOF, the Company has caused this option to be executed by
the signature of its duly authorized officer, effective this ___ day of
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XXX, Inc.
By____________________________________
President
The undersigned Optionee hereby acknowledges receipt of a copy of the foregoing
option and acknowledges and agrees to the terms and conditions set forth in the
option.
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(Print Name)
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