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EXHIBIT 10.42
SMARTGATE INC.
2002 INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Option Agreement Number: N-002
Date of Grant/Award: January 22, 2002
Name of Optionee: Xxxxxx Xxxxxx
Optionee's Social Security Number: N/A
Initial Vesting Date: January 22, 2003
Initial Exercise Date: January 22, 2003
Expiration Date: January 21, 2007 (the "Option Term")
1. Dated as of the above-stated Date of Grant/Award (the "Grant
Date") a Stock Option (the "Option") is hereby granted to the above-named
Optionee pursuant to the SmartGate Inc. 2002 Incentive Plan (the "Plan"). The
Award of this Option conveys to the Participant the right to purchase from
SmartGate Inc. (the "Company") up to Seventy-Five Thousand (75,000) shares of
Stock (the "Option Shares") under the Plan at an exercise price of $3.50 per
share. The Option awarded hereunder is intended to be a nonqualified stock
option subject upon its exercise to treatment, for tax purposes, under Section
83 of the Internal Revenue Code, and is specifically not intended to be treated
as an Incentive Stock Option, as such term is defined under Section 422 of the
Internal Revenue Code.
2. Except as specifically provided herein, the rights of the
Optionee, or of any other person entitled to exercise the Option, are governed
by the terms and provisions of the Plan. The Option is granted pursuant to the
terms of the Plan, which is incorporated herein by reference, and the Option
shall in all respects be interpreted in accordance with the Plan. The Company
shall interpret and construe the Plan and this Option Agreement with respect to
any issue arising thereunder or hereunder, and such interpretations and
determinations by the Company shall be conclusive and will bind the parties
hereto and any other person claiming an interest hereunder.
3. To the extent not previously exercised, the Option and all
rights with respect thereto, shall terminate and become null and void when the
Option Term expires.
4. Following any termination of Service with respect to the
Optionee, the Option shall be exercisable only during the following
timeframes:
(a) DISABILITY. If the Optionee's Service terminates
because of the Optionee becomes disabled, the Option, to the extent
unexercised and exercisable on the date on which Service thus terminated, may
be exercised at any time during the twelve (12) month period immediately
following the date on which the Optionee's Service thus terminated, but in no
event any later than the date the Option Term expires.
(b) DEATH. If Service terminates because the Optionee
dies, the Option, to the extent unexercised and exercisable on the date on which
the Optionee's Service thus terminated, may be exercised at any time during the
twelve (12) month period immediately following the date on which the Optionee's
Service thus terminated, but in no event any later than the date the Option Term
expires. The Optionee's Service shall be deemed to have terminated on account of
the Optionee's death if the Optionee dies within three (3) months of the
Optionee's termination of Service for any other reason.
(c) OTHER TERMINATION OF SERVICE. If the Optionee's
Service terminates for reasons other than those specifically enumerated, to the
extent the Option remains unexercised and exercisable by the Optionee on the
date on which the Optionee's Service thus terminated, the Option may be
exercised at any time during the three (3) month period immediately following
the date on which the Optionee's Service thus terminated, but in no event any
later than the date the Option Term expires.
5. Following the Initial Exercise Date, but subject to such
further limitations provided for herein as may apply, the Option shall become
exercisable as to all or any part of the Option Shares ("Vested Shares") awarded
in accordance with the following Vested Ratio schedule:
NUMBER OF SHARES OF STOCK VESTING DATE
-------------------------------- ------------------
25,000 January 22, 2003
50,000 January 22, 2004
75,000 January 22, 2005
There shall be no proportionate or partial vesting in the periods prior
to each Vesting Date, and all vesting shall occur only on the appropriate
Vesting Date.
6. The Option may be exercised with respect to all or any part
of the number of Vested Shares by the giving of written notice ("Notice") of the
Optionee's intent to exercise to the Company at least five days prior to the
date on which exercise is to occur. The Notice shall specify the exercise date
and the number of Option Shares as to which the Option is to be exercised. Full
payment of the Option exercise price by any of the means of consideration
provided for under the Plan shall be made on or before the exercise date
specified in the Notice. Such full payment having occurred on or before the
exercise date specified in the Notice, or as soon thereafter as is practicable,
the Company shall cause to be delivered to the Optionee a certificate or
certificates for the Option Shares then being purchased. If the Optionee fails
to pay for any of the Option Shares specified in the Notice, or fails to accept
delivery of Option Shares, the Optionee's right to purchase such Option Shares
may be terminated by the Company.
7. During the Optionee's lifetime, the Option granted hereunder
shall be exercisable only by the Optionee or by any guardian or legal
representative of the Optionee, and the Option shall not be transferable except,
in the case of the death of the Optionee, by will or by the laws of descent and
distribution, nor shall the Option be subject to attachment, execution or other
similar process.
8. The Company may unilaterally amend the Option Award at any
time if the Company determines, in its sole discretion, that amendment is
necessary or advisable in light of any applicable addition to or change in the
Internal Revenue Code, any regulations issued thereunder, or any federal or
state securities law or other applicable law or regulation.
9. Until the date a Stock certificate is issued to an Optionee,
an Optionee shall have no rights as a stockholder with respect to the shares
of Stock subject to Award under this ISO Agreement, and no adjustments shall
be made for dividends of any kind or nature, distributions, or other rights
for which the record date is prior to the date such Stock certificate is
issued.
10. The Optionee acknowledges having received and read a copy of
the Plan and this Agreement and agrees to comply with all laws, rules and
regulations applicable to the Award and to the sale or other disposition of
the Stock of the Company received.
11. In the event the Optionee should cease to be employed by or
to provide Services to the Company, the Company hereby reserves a right to
repurchase from Optionee, at its sole discretion, any or all shares issued to
Optionee under the Plan which have been outstanding in excess of six months.
Company is to pay to Optionee under such repurchase the Fair Market Value of
the shares on the date of such repurchase and Optionee will, from that point
onward, have no further shareholder rights with respect to those shares. The
Company hereby reserves a right of first refusal on all the awarded shares
which have been outstanding in excess of six months. During this time, prior
to selling any shares, the Optionee must notify the Company, in writing, of
the terms of the transaction in which the Optionee proposes to sell the
shares. Such notice shall be supported by a bona fide formal letter of
arrangement.
The bona fide formal letter of arrangement must include (i) all of
the terms of the transaction, (ii) a description of any financing arrangements
related to the transaction, and (iii) full disclosure of all parties, whether
agent or principal, who are interested in the transaction.
The Company shall have sixty (60) days to determine if it or other
stockholders in the Company will purchase the shares. The Company shall
respond by the sixtieth (60th) day after receipt of the Optionee's notice or
forfeit its rights under this paragraph. If the Company decides that neither
it nor any other stockholders in the Company shall purchase the shares, the
Optionee must engage in the transaction as described in the notice provided to
the Company within sixty (60) days; otherwise, the Company's first refusal
right shall again be applicable to any subsequently proposed sale of the
shares.
12. Any notice to the Company provided for in this Agreement
shall be addressed to it in care of its Secretary at its executive offices
located at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, and any notice to
the Optionee shall be addressed to the Optionee at the address currently shown
on the payroll records of the Company. Any notice shall be deemed duly given if
and when properly addressed and posted by registered or certified mail, postage
prepaid.
IN WITNESS WHEREOF, SmartGate Inc. has caused its duly authorized
officers to execute this nonqualified Stock Option Agreement, and the Optionee
has placed his or her signature hereon, effective as of the Grant Date.
SMARTGATE INC.
Attest:
By: /s/ Xxxxxxx X. Xxxxxxx, President
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Title: President
ACCEPTED AND AGREED TO:
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Optionee
FILING SCHEDULE PURSUANT TO PARAGRAPH 2.
INSTRUCTIONS TO ITEM 601 UNDER SECTION 229.601 EXHIBITS OF REGULATION S-K
A stock option, also vesting in equal one-third increments and,
substantially identical in all material respects except for the grantee and
number of shares eligible for purchase was granted to Xxxxxx X. Xxxx for the
purchase of 125,000 shares.
