EXHIBIT 10.2
ARCADIA RESOURCES, INC. 2006 EQUITY INCENTIVE PLAN
FORM OF STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made as of the effective
date specified in the attached Notice of Restricted Stock Award (the "Effective
Date") by and between ARCADIA RESOURCES, INC., a Nevada corporation (the
"Company"), and the undersigned employee of the Company or one or more of the
Company's subsidiaries or other person eligible to participate in the Company's
2006 Equity Incentive Plan ("Grantee"). The Company and Grantee are sometimes
referred to individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Company desires that Grantee exert his or her utmost efforts to
improve the business and increase the assets of the Company.
B. As a matter of separate inducement and not in lieu of salary, other
compensation or benefits payable for the services of Grantee, the Company
desires to grant Grantee the right and option, but not the obligation, to
purchase shares of the Company's fully-paid and non-assessable common stock (the
"Common Stock"). Shares of the Common Stock are individually referred to as a
"Share" and collectively as the "Shares."
C. Any Option granted under this Agreement is granted in accordance with
the Company's 2006 Equity Incentive Plan (the "Plan") and the terms and
provisions of the Plan shall govern the grant of said Option hereunder, unless
otherwise provided in this Agreement as permitted by the Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth below,
and other good and valuable consideration, the adequacy and receipt of which are
acknowledged, the Parties agree as follows:
1. GRANT OF OPTION. Subject to and contingent on satisfaction of all of the
terms and conditions of this Agreement and the Plan, the Company hereby grants
to Grantee the right and option to purchase from the Company, during the Term of
the Option and at the Exercise Price, up to the aggregate number of Shares of
the Common Stock specified in the Notice of Award (the "Option"), attached
hereto and incorporated herein by reference, contingent on and subject to
vesting and forfeiture as specified herein and the terms in the Notice of Award.
Nothing in this Agreement shall confer upon Grantee any right to commence or
continue employment with the Company or of any of its subsidiaries, nor
interfere in any way with the right of the Company or any subsidiary to
terminate Grantee's employment in accordance with Grantee's terms of employment
which are on an AT WILL basis unless specified otherwise in a written employment
agreement.
2. NATURE OF OPTION. If designated in the Notice as an Incentive Stock
Option, the Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"). However, notwithstanding such designation, to the extent that the
aggregate fair market value of Shares subject to an Option designated as an
Incentive Stock Option which becomes exercisable for the first time by Grantee
during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options, to the extent of the Shares
covered thereby in excess of the foregoing limitation, shall be treated as a
Non-Qualified Stock Option. For this purpose, an Incentive Stock Option shall be
taken into account in the order in which it was granted, and the fair market
value of the Shares shall be determined as of the date the Option with respect
to such Shares is awarded. Grantee has been advised to seek independent legal
and tax counsel with respect to the taxation consequences to Grantee of the
grant and exercise of the Option.
3. EXERCISE PRICE. The exercise price of each Share subject to the Option
shall be the price per Share specified in the Notice of Award (the "Exercise
Price"). Payment shall be made in cash or by any other method specified in or
permitted by the Plan or in the Notice of Award.
4. VESTING. The Option shall vest as described in the Notice of Award.
Grantee shall have the right to exercise any vested Option. Subject to the terms
of the Plan, upon any termination of employment, whether by the Company or
Grantee, whether for cause or without cause, all unvested Options shall be
automatically forfeited and shall be null and void, except to the extent, if
any, provided otherwise in the Notice of Award.
5. TERM OF OPTION. Grantee may first exercise the Option on the first day
after the Vesting Date as set forth in the Notice of Award and shall end at 5:00
p.m. (New York City time) on the Expiration Date specified in the Notice of
Award (the "Term"). Upon the expiration of the Term, the Option, to the extent
not exercised before then, shall automatically terminate and become null and
void, and Grantee shall then have no right to exercise the Option.
6. EXERCISE OF OPTION. The Option, subject to vesting requirements, may be
exercised using the Notice of Exercise, attached hereto as Exhibit A and
incorporated herein by reference, within the Term, at any time or from time to
time, provided that each exercise of the Option shall be conditioned and
contingent on the satisfaction of all of the terms and conditions of this
Agreement and exercised in accordance with the Plan. In addition, the Option may
not be exercised in quantities of less than ten thousand (10,000) Shares at any
one time or all of the remaining Shares then exercisable under the Option, if
less than ten thousand (10,000) Shares. The Option may not be exercised if the
issuance of the Shares subject to the Option upon such exercise would constitute
a violation of any applicable laws.
7. TAX WITHHOLDINGS. Pursuant to the provisions of the Plan, Grantee shall
be responsible for all tax obligations arising from the grant and vesting of the
Option and Grantee also agrees to the withholding of taxes as the Company deems
necessary as required by law or regulation. Prior to any event in connection
with the Option (e.g., vesting or exercise) that the Company determines may
result in any tax withholding obligation, whether United States federal, state,
local or non-U.S., including any employment tax obligation (the "Tax Withholding
Obligation"), Grantee must arrange for the satisfaction of the minimum amount of
such Tax
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Withholding Obligation in a manner acceptable to the Company. The Company does
not make any representation or undertaking regarding the treatment of any tax
withholding in connection with the grant, vesting or exercise of the Option or
the subsequent sale of Shares subject to the Option. The Company does not commit
and is under no obligation to structure the Option to reduce or eliminate
Grantee's tax liability.
8. NONTRANSFERABILITY. This Agreement and the Option, if an Incentive Stock
Option, may not be transferred in any manner other than by will or by the laws
of descent and distribution and may be exercised during the lifetime of the
Grantee only by the Grantee; provided, however, that the Grantee may designate a
beneficiary of the Grantee's Incentive Stock Option in the event of the
Grantee's death on a beneficiary designation form provided by the Company. This
Agreement and the Option, if a Non-Qualified Stock Option, shall not be
transferred, pledged, assigned, hypothecated or disposed of in any manner or by
operation of law, except as permitted in the case of death, by will or the laws
of descent and distribution or during Grantee's lifetime to Grantee's "family
member" (as defined in Form S-8) through gift or domestic relations order as
permitted by Form S-8 (as currently in effect or as it may be amended) and the
Plan. In no event shall this Agreement and the Options be subject to execution,
attachment, or similar process. The terms of the Option shall be binding upon
the executors, administrators, heirs, and permitted successors and transferees
of the Grantee. No such transfer which is permitted hereunder shall be effective
unless written notice of the same shall have been given before such transfer to
the Company and the Company shall have given its written acknowledgment of the
permissibility of the transfer.
9. CHANGES IN CAPITAL STRUCTURE. In the event of changes in the outstanding
Common Stock of the Company by reason of a stock dividend, stock split, reverse
stock split, reorganization, recapitalization, merger, consolidation,
liquidation, separation, combination or exchange of stock, change in the
Company's business structure or sale or transfer of all or any part of the
Company's business or assets or other event defined in the Plan (referred to as
a "Capital Adjustment"), the number of Shares subject to this Agreement shall be
adjusted by the Company consistent with such Capital Adjustment as provided in
the Plan.
10. SECURITIES LAW COMPLIANCE. Grantee agrees that each exercise and all
transfers or other dispositions of any interest in the Option permitted
hereunder shall be made in compliance with applicable laws and the Company's
policies on xxxxxxx xxxxxxx in effect from time to time.
11. PLAN. Grantee acknowledges receipt of a copy of the Plan and represents
that he or she is familiar with the terms and provisions thereof, and hereby
accepts the Award subject to all of the terms and provisions of this Agreement
and the Plan. Grantee has reviewed this Agreement, the Notice and the Plan in
their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Agreement or the Notice and fully understands all provisions of
this Agreement, the Notice and the Plan. Grantee hereby agrees that all
questions of interpretation and administration relating to this Agreement, the
Notice and the Plan shall be resolved by the Committee in accordance with
Section 6 of the Plan.
12. ISSUANCE OF SHARE CERTIFICATES. The Company shall not be required to
issue or deliver any certificate for Shares issuable upon the exercise of the
Option, except if required by
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applicable state law. Grantee agrees to the imprinting, so long as the Company
determines is required, of a legend on any stock certificate evidencing Shares
to effectuate compliance with the terms of the Plan, this Agreement, the Notice
of Award and applicable law.
13. NO SHAREHOLDER RIGHTS. Grantee shall have no rights as a shareholder
relative to any Shares as to which the Option shall not have been exercised and
payment made as herein provided.
14. GOVERNING LAW AND ARBITRATION. This Agreement and all disputes arising
out of or related to the Option and the Shares shall be governed by and
construed in accordance with the laws of the State of Michigan, notwithstanding
the fact that either Party is now or may hereafter become domiciled or located
in a different state. Any such dispute, controversy or claim shall be resolved
at arbitration in accordance with the rules of the American Arbitration
Association, except for any equitable or injunctive relief sought under this
Agreement. The arbitration shall be held at a location within Xxxxxxx County,
Florida. The parties hereto agree that any arbitration award rendered on any
claim submitted to arbitration shall be final and binding upon the parties and
not subject to appeal and that judgment may be entered upon any arbitration
award by any court of competent jurisdiction. The parties hereto agree that the
expenses of any arbitration shall be borne equally by the parties to the
proceeding, provided that each party shall bear its own attorneys fees and costs
of its own experts, evidence and the like. Notice of the demand for arbitration
shall be given in writing to the other party to this Agreement no later than
within six (6) months from the date the party asserting the claim should
reasonably have been aware of the same but in no event later than the period
specified by the applicable statute of limitations. The failure to give such
notice shall operate to then bar any action, liability and damages arising from
or related to such alleged dispute or claim, with the same force and effect as
if the applicable statute of limitations had expired. Grantee acknowledges and
agrees that by making this agreement to submit all claims to binding
arbitration, Grantee hereby waives the right to litigate in a court of law, and
to trial by jury if applicable.
15. BINDING EFFECT AND WAIVER OF BREACH. Except as herein otherwise
expressly provided, this Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns. The waiver
of breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach. Each and every right, remedy and power
hereby granted to any Party or allowed it by law shall be cumulative and not
exclusive of any other.
16. SEVERABILITY. If any of the provisions of this Agreement or the
application thereof to any Party under any circumstances is adjudicated to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement or the application thereof.
17. INTERPRETATION OF AGREEMENT. Where appropriate in this Agreement, words
used in the singular shall include the plural, and words used in the masculine
shall include the feminine and neuter. All headings that are used in this
Agreement are for the convenience of the reader only and shall not be used to
limit or construe any of the provisions hereof.
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18. SURVIVAL OF PROVISIONS. The representations, warranties, covenants,
obligations and undertakings of Grantee under this Agreement are continuing and
shall survive the exercise of any or all Shares subject to the Option, as well
as termination of the Term of the Option.
19. AMENDMENT OF AGREEMENT. The terms and provisions of this Agreement may
be altered or amended in any of their provisions only by the mutual written
agreement of the Parties hereto.
20. SUCCESSORS. The Agreement shall inure to the benefit of the Company and
its successors in interest and assigns, but may not be assigned or delegated by
Grantee.
21. ADVICE OF COUNSEL. Grantee is entering into this contract freely and
voluntarily and has been advised to seek the advice of her legal counsel prior
to entering into this Agreement.
22. ENTIRE AGREEMENT. This Agreement, the Plan and the Notice (attached
hereto) (collectively, the "Award Documents") constitute the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
and all other previous or contemporaneous communications, representations,
understandings, agreements, negotiations and discussions, either oral or
written, between the Parties with respect to the subject matter hereof,
including Grantee's employment agreement with the Company to the extent, if any,
that it purports to contradict or vary the terms of the Award Documents. The
Parties acknowledge and agree that there are no written or oral agreements,
understandings, or representations, directly or indirectly related to the Award
Documents that are not set forth therein.
23. COUNTERPART/FACSIMILE SIGNATURES. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same Agreement. For purposes of this
Agreement, a facsimile or PDF signature shall be valid and enforceable as an
original.
24. INCORPORATION OF RECITALS. The Recitals set forth above are
incorporated herein by reference.
25. NOTICES. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, upon
deposit for delivery by an internationally recognized express mail courier
service or upon deposit in the United States mail by certified mail (if the
parties are within the United States), with postage and fees prepaid, addressed
to Grantee at its address as shown in these instruments, the Company at its
principal office, or to such other address as such party may designate in
writing from time to time to the other party.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
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ARCADIA RESOURCES, INC.,
a Nevada corporation
By:
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Its:
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ACCEPTED AND AGREED TO BY GRANTEE:
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Print Name of Holder
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Signature of Holder
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Social Security Number
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Date
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ARCADIA RESOURCES, INC. 2006 EQUITY INCENTIVE PLAN
NOTICE OF STOCK OPTION AWARD
NAME OF GRANTEE: ___________________________________
ADDRESS OF GRANTEE: ________________________________
________________________________
________________________________
EFFECTIVE DATE OF AWARD: ___________________________
AGGREGATE NUMBER OF SHARES OF COMMON STOCK SUBJECT TO OPTION:
Up to __________ Shares in total.
EXERCISE PRICE: $___________ per Share.
VESTING DATE: Options shall vest as follows: ________________
EXPIRATION DATE: _________________, _______ or earlier as set forth in the Plan.
NATURE OF OPTION: ______ Incentive Stock Option
______ Non-Qualified Stock Option
OTHER: _____________________________
ARCADIA RESOURCES, INC.,
a Nevada corporation
By:
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Its:
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ACCEPTED AND AGREED TO BY HOLDER:
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Print Name of Holder
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Signature of Holder
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Social Security Number
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Date
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EXHIBIT A
ARCADIA RESOURCES, INC. 2006 EQUITY INCENTIVE PLAN
NOTICE OF EXERCISE OF STOCK OPTION
TO PURCHASE SHARES OF COMMON STOCK
TO: Arcadia Resources, Inc.
The undersigned hereby exercises the Option to purchase _______ Shares of
the Company's Common Stock pursuant to and contingent on satisfaction of all
terms and conditions of the Stock Option Agreement effective as of
_____________, and hereby remits $________________ as payment in full of the
Exercise Price and tax withholdings.
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Name (print)
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Signature
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Social Security or Taxpayer I.D. Number
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Address
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City, State Zip Code
Dated:
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