EXHIBIT 4.1
FORM OF STOCK OPTION AGREEMENT
AGREEMENT made as of this 29th day of April 2002 (the "Date of Grant")
between INTERLOCK SERVICES, INC. (D/B/A NEW YORK INTERNATIONAL COMMERCE GROUP),
a Nevada corporation (the "Company"), and _________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company wishes to reward the Optionee for services
performed on behalf of the Company as a member of the board of directors during
fiscal year ended December 31, 2002 (the "Services") by awarding, in accordance
with its 2002 Stock Incentive Plan (the "Plan"), options to acquire common
stock, par value $.001 per share, of the Company (hereinafter referred to as
"Common Stock");
NOW, THEREFORE, for and in consideration of the mutual covenants herein
set forth and other good and valuable consideration, the Company and the
Optionee hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the
Committee, the Company, subject to the terms of the Plan and this Agreement,
hereby grants to the Optionee, in full compensation for the Services, the right
to purchase (the "Option") an aggregate of 300,000 shares of Common Stock,
subject to adjustment as provided in the Plan (such shares, as adjusted,
hereinafter being referred to as the "Shares"). The Option is not intended to
qualify as an incentive stock option under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), and accordingly, the Optionee is urged to
consult with its individual tax advisor prior to exercising the Option since the
exercise of the Option may result in adverse tax consequences including the
payment of additional federal and/or state income taxes.
2. Purchase Price. The purchase price of shares of Common Stock covered
by the Option will be $0.13 per share, subject to adjustment as provided in the
Plan.
3. Exercise of Option. Subject to all of the terms and conditions of
this Agreement and the Plan, the right to purchase shares under the Option shall
vest as to all of the Shares as of the Date of Grant. The Option may be
exercised pursuant to the provisions of this Section 3, by notice and payment to
the Company as provided in Sections 8 and 14 hereof.
4. Term of Option. The term of the Option shall be the period from the
Date of Grant until April 28, 2007 (subject to earlier termination or
cancellation as provided in this Agreement), at which date this Option, to the
extent unexercised, shall expire. The holder of the Option shall not have any
rights to dividends or any other rights of a stockholder with respect to any
shares of Common Stock subject to the Option until such shares shall have been
issued to him (as evidenced by the appropriate entry on the books of the Company
or a duly authorized transfer agent of the Company) provided that the date of
issuance shall not be earlier than the date this Option is exercised and payment
of the full purchase price of the shares of Common Stock (with respect to which
this Option is exercised) is made to the Company.
5. Non-transferability of Option. The Option shall not be assigned,
transferred or otherwise disposed of, or pledged or hypothecated in any way, and
shall not be subject to execution, attachment or other process, except as may be
provided in the Plan. Any assignment, transfer, pledge, hypothecation or other
disposition of the Option attempted contrary to the provisions of the Plan, or
any levy of execution, attachment or other process attempted upon the Option,
will be null and void and without effect. Any attempt to make any such
assignment, transfer, pledge, hypothecation or other disposition of the Option
will cause the Option to terminate immediately upon the happening of any such
event; provided, however, that any such termination of the Option under the
foregoing provisions of this Section 5 will not prejudice any rights or remedies
which the Company or any Parent or Subsidiary may have under this Agreement or
otherwise.
6. Exercise Upon Cessation of Directorship. If the Optionee at any time
ceases to be a director of the Company and of any Parent or Subsidiary by reason
of his removal by the board of directors of the Company (the "Board"), then the
Option shall, at the time of such removal, terminate and the Optionee shall
forfeit all rights hereunder. If, however, the Optionee ceases to be a director
for any reason other than as provided in the preceding sentence, the Option may,
subject to the provisions of Section 5 hereof, be exercised by the Optionee to
the same extent the Optionee would have been entitled under Section 3 hereof to
exercise the Option immediately prior to such cessation, at any time within
three (3) months after such cessation, at the end of which period the Option, to
the extent not then exercised, shall terminate and the Optionee shall forfeit
all rights hereunder, even if the Optionee subsequently returns as a director of
the Company or any Parent or Subsidiary. In no event, however, may the Option be
exercised after the expiration of the term provided in Section 4 hereof.
7. Registration. At the time of issuance, the shares of Common Stock
subject hereto and issuable upon the exercise hereof may not be registered under
the Securities Act of 1933, as amended (the "Securities Act"), and, if required
upon the request of counsel to the Company, the Optionee will give a
representation as to his investment intent with respect to such shares prior to
their issuance as set forth in Section 8 hereof. The Company may register or
qualify the shares covered by the Option for sale pursuant to the Securities
Act, at any time prior to or after the exercise in whole or in part of the
Option.
8. Method of Exercise of Option. (a) Subject to the terms and
conditions of this Agreement, the Option shall be exercisable by notice in the
manner set forth in Exhibit A hereto (the "Notice") and provision for payment to
the Company in accordance with the procedure prescribed herein. Each such Notice
shall:
(i) state the election to exercise the Option and the number of
Shares with respect to which it is being exercised;
(ii) contain a representation and agreement as to investment
intent, if required by counsel to the Company with respect to such Shares, in a
form satisfactory to counsel to the Company;
(iii) reaffirm the release provisions contained in Section 14
hereof as true and correct as of the exercise date of the Option;
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(iv) be signed by the Optionee or the person or persons entitled
to exercise the Option and, if the Option is being exercised by any person or
persons other than the Optionee, be accompanied by proof, satisfactory to
counsel to the Company, of the right of such other person or persons to exercise
the Option;
(v) include payment of the full purchase price for the shares of
Common Stock to be purchased pursuant to such exercise of the Option; and
(vi) be received by the Company on or before the date of the
expiration of this Option. In the event the date of expiration of this Option
falls on a day which is not a regular business day at the Company's executive
office, then such written Notice must be received at such office on or before
the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in
respect of which the Option shall be exercised, shall be made by the Optionee or
such person or persons at the place specified by the Company on the date the
Notice is received by the Company (i) by delivering to the Company a certified
or bank cashier's check payable to the order of the Company or (ii) if consented
to by the Company in writing, by delivering to the Company properly endorsed
certificates of shares of Common Stock (or certificates accompanied by an
appropriate stock power) with signature guaranties by a bank or trust company,
or (iii) if consented to by the Company in writing, by a concurrent sale of a
portion of the shares of Common Stock to be acquired upon the exercise of this
Option to the extent permitted upon delivery by the Optionee of a properly
executed notice, together with a copy of the Optionee's irrevocable instructions
to a broker acceptable to the Company to sell all or a portion of such shares of
Common Stock and deliver promptly to the Company the amount of sale or loan
proceeds sufficient to pay such exercise price; provided, that, in connection
therewith, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms, or (iv) by entering into a binding obligation with
the Company (such as a promissory note) to pay the purchase price to the
Company, or (v) by any combination of the foregoing. For purposes of the
immediately preceding sentence, an exercise effected by the tender of Common
Stock (or deemed to be effected by the tender of Common Stock) may only be
consummated with Common Stock held by the Optionee for a period of six (6)
months.
(c) The Option shall be deemed to have been exercised with respect
to any particular shares of Common Stock if, and only if, the preceding
provisions of this Section 8 and the provisions of Section 9 hereof shall have
been complied with, in which event the Option shall be deemed to have been
exercised on the date the Notice and related payment were received by the
Company. Anything in this Agreement to the contrary notwithstanding, any Notice
given pursuant to the provisions of this Section 8 shall be void and of no
effect if all of the preceding provisions of this Section 8 and the provisions
of Section 9 shall not have been complied with.
(d) The certificate or certificates for shares of Common Stock as to
which the Option shall be exercised will be registered in the name of the
Optionee (or in the name of the Optionee's estate or other beneficiary if the
Option is exercised after the Optionee's death), or if the Option is exercised
by the Optionee and if the Optionee so requests in the notice exercising the
Option, will be registered in the name of the Optionee and another person
jointly, with right of survivorship and will be delivered as soon as practical
after the date the Notice is received by the Company
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(accompanied by full payment of the exercise price), but only upon compliance
with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or
any part of the number of Shares specified in such Notice, his right to exercise
the Option with respect to such undelivered Shares may be terminated in the sole
discretion of the Committee. The Option may be exercised only with respect to
full Shares.
(f) The Company shall not be required to issue or deliver any
certificate or certificates for shares of its Common Stock purchased upon the
exercise of any part of the Option prior to the payment to the Company, upon its
demand, of any amount requested by the Company for the purpose of satisfying its
liability, if any, to withhold federal, state or local income or earnings tax or
any other applicable tax or assessment (plus interest or penalties thereon, if
any, caused by a delay in making such payment) incurred by reason of the
exercise of this Option or the transfer of shares thereupon. Such payment shall
be made by the Optionee in cash or, with the written consent of the Company, by
tendering to the Company shares of Common Stock equal in value to the amount of
the required withholding. In the alternative, the Company may, at its option,
satisfy such withholding requirements by withholding from the shares of Common
Stock to be delivered to the Optionee pursuant to an exercise of the Option a
number of shares of Common Stock equal in value to the amount of the required
withholding.
9. Approval of Counsel. The exercise of the Option and the issuance and
delivery of shares of Common Stock pursuant thereto shall be subject to approval
by the Company's counsel of all legal matters in connection therewith,
including, but not limited to, compliance with the requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, and the requirements of any stock exchange or
automated trading medium upon which the Common Stock may then be listed or
traded.
10. Resale of Common Stock. (a) If so requested by the Company, upon
any sale or transfer of the Common Stock purchased upon exercise of the Option
(subject to the provisions of Section 10(c) hereof), the Optionee shall deliver
to the Company an opinion of counsel satisfactory to the Company to the effect
that either (i) the Common Stock to be sold or transferred has been registered
under the Securities Act and that there is in effect a current prospectus
meeting the requirements of Section 10(a) of Securities Act which is being or
will be delivered to the purchaser or transferee at or prior to the time of
delivery of the certificates evidencing the Common Stock to be sold or
transferred, or (ii) such Common Stock may then be sold pursuant to an exemption
from registration requirements or otherwise without violating Section 5 of
Securities Act.
(b) The Common Stock issued upon exercise of the Option shall bear
the following (or similar) legend if required by counsel for the Company:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I)
REGISTERED UNDER SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR (II) INTERLOCK SERVICES, INC., A NEVADA
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CORPORATION (THE "COMPANY"), SHALL HAVE RECEIVED FROM COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY, AN OPINION, IN FORM,
SCOPE AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION OF SUCH SHARES UNDER THE SECURITIES ACT AND UNDER
THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
(c) The Optionee hereby agrees that, if so requested by the Company
or any representatives of the underwriters (the "Managing Underwriter") in
connection with any registration of the offering of any securities of the
Company under the Securities Act, the Optionee shall not sell or otherwise
transfer any shares of Common Stock or other securities of the Company during
the six (6) month period (or such longer or shorter period as may be requested
in writing by the Managing Underwriter and agreed to in writing by the Company )
(the "Market Standoff Period") following the effective date of a registration
statement of the Company filed under the Securities Act. Such registration shall
apply only to the first registration statement of the Company to become
effective under the Securities Act that includes securities to be sold on behalf
of the Company to the public in an underwritten public offering under the
Securities Act. The Company may impose stop-transfer instructions with respect
to securities subject to the foregoing restrictions until the end of such Market
Standoff Period.
11. Reservation of Shares. The Company shall at all times during the
term of the Option reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
12. Limitation of Action. The Optionee and the Company each
acknowledges that every right of action accruing to him or it, as the case may
be, and arising out of or in connection with this Agreement against the Company
or a Parent or Subsidiary, on the one hand, or against the Optionee, on the
other hand, shall, irrespective of the place where an action may be brought,
cease and be barred by the expiration of three years from the date of the act or
omission in respect of which such right of action arises.
13. Notices. Each notice relating to this Agreement shall be in writing
and delivered in person, by recognized overnight courier or by certified mail to
the proper address. All notices to the Company or the Committee shall be
addressed to them at Interlock Services, Inc. (a/k/a New York International
Commerce Group, Inc.), 00 Xxxxxxx Xxxxx, Xxxx 00, Xxxxxxxxxx, Xxx Xxxx 00000
(Attn: Chief Executive Officer), or to such other address as may be designated
for such purpose by the Company from time to time by notice given in the manner
herein provided. All notices to the Optionee shall be addressed to the Optionee
or such other person or persons at the Optionee's address above specified.
Anyone to whom a notice may be given under this Agreement may designate a new
address by notice to that effect.
14. Benefits of Agreement. This Agreement shall inure to the benefit of
the Company, the Optionee and their respective heirs, executors, administrators,
personal representatives, successors and assigns.
15. Severability. In the event that any one or more provisions of this
Agreement shall be deemed to be illegal or unenforceable, such illegality or
unenforceability shall not affect the
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validity and enforceability of the remaining legal and enforceable provisions
hereof, which shall be construed as if such illegal or unenforceable provision
or provisions had not been inserted. If one or more of the provisions contained
in this Agreement is held to be excessively broad as to duration, scope or
subject, such provisions will be construed by limiting them so as to be
enforceable to the maximum extent compatible with applicable law.
16. Governing Law. This Agreement will be construed and governed in
accordance with the laws of the State of New York, without regard to the
conflicts of law rules thereof.
17. Definitions. Unless otherwise defined herein, all capitalized terms
used in this Agreement shall have the same definitions as set forth in the Plan
or any then-effective consulting agreement between the Company and the Optionee;
provided that in the event of any conflict between the definitions contained in
the Plan or any such then-effective consulting agreement, the definitions set
forth in such consulting agreement shall control.
18. Acknowledgment of Optionee. The Optionee represents and warrants
that as of the Date of Grant of the Option, he does not own (within the meaning
of Section 422(b)(6) of the Code) shares possessing more than 10% of the total
combined voting power of all classes of shares of the Company or of any Parent
or Subsidiary.
19. Incorporation of Recitals. The recitals contained in this Agreement
are hereby incorporated and made a part of this Agreement; it being acknowledged
and agreed by the parties hereto that the Company, in granting the Option, has
relied upon (and it is of the essence of this Agreement) that the Optionee is an
independent contractor and accepts the Options in full and complete
consideration for the Services.
20. Incorporation of Terms of Plan. This Agreement shall be interpreted
under, and subject to, all of the terms and provisions of the Plan, which are
incorporated herein by reference. In the event of any conflict between the
provisions of this Agreement and the express requirements of the Plan, the
requirements of the Plan shall control. This Agreement and the Plan together
constitute the entire understanding between the Optionee and the Company
regarding the Option, and any prior agreements, commitments or negotiations
concerning the Option are hereby superseded. No provision of this Option may be
amended, modified or waived, except in writing signed by all of the parties
hereto.
21. Entire Agreement. This Agreement contains the entire agreement of
the parties, and supersedes all prior agreements and understandings, oral or
otherwise, between the parties, with respect to the granting of Options to
Optionee and other matters contained herein
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Date of Grant set forth above.
INTERLOCK SERVICES, INC.
By:_________________________________
Name:
Title:
_________________________________
Optionee Name:
Address: ________________________
_________________________________
_________________________________
_________________________________
Social Security Number
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EXHIBIT A
STOCK OPTION EXERCISE FORM
__________ ___, 20__
Interlock Services, Inc.
Attn: Board of Directors
Dear Sirs:
Pursuant to the provisions of the Stock Option Agreement dated _______
____, 2002 (the "Agreement"), whereby you have granted to me an Option (the
"Option") to purchase up to __________ shares of the Common Stock of Interlock
Services, Inc. a/k/a New York International Commerce Group, Inc. (the
"Company"), subject to the terms of the Agreement, I hereby notify you that I
elect to exercise my option to purchase ________ of the shares of Common Stock
covered by such Option at the $____ per share price specified therein. In full
payment of the price for the shares being purchased hereby, I am delivering to
you herewith (i) certified or bank cashier's check payable to the order of the
Company in the amount of $____________,1 or (ii) a certificate or certificates
for _______ shares of Common Stock of the Company, and which have a fair market
value as of the date hereof of $___________, [and a certified or bank cashier's
check, payable to the order of the Company, in the amount of
$________________].2 Any such stock certificate or certificates are endorsed, or
accompanied by an appropriate stock power, to the order of the Company, with my
signature guaranteed by a bank or trust company or by a member firm of the New
York Stock Exchange. I hereby acknowledge that I am purchasing these shares for
investment purposes only and not for resale in violation of any federal or state
securities laws.
Very truly yours,
___________________________
___________________________
___________________________
(Address for notices,
reports, dividend checks
and other communications to
stockholders.)
--------
1 $____________ of this amount is the purchase price of the shares, and
the balance represents payment of withholding taxes as follows: Federal
$____________, State $___________ and Local $___________
2 $___________ of this amount is at least equal to the current market
value of one share of Common Stock of the Company, and the balance
represents payment of withholding taxes as follows: Federal
$___________, State $___________ and Local $___________.
