EXHIBIT 10.1
STOCK OPTION AGREEMENT
AGREEMENT, made as of March 15, 2001, by and between INTERCOM
SYSTEMS, INC., a Delaware corporation (the "Company"), and ________________ (the
"Director" or "Holder").
WHEREAS, by written consent dated March 15, 2001 (the "Grant
Date"), the Board of Directors of the Company authorized the grant to the
Director of an option (the "Option") to purchase an aggregate of 70,000 shares
of the authorized but unissued common stock of the Company, $.0005 par value
(the "Common Stock"), conditioned upon the Director's acceptance thereof upon
the terms and conditions set forth in this Agreement; and
WHEREAS, the Director desires to acquire the Option on the
terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the
Director the Option to purchase all or any part of an aggregate of 70,000 shares
of Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Non-Incentive Stock Option. The Option represented
hereby is not intended to be an Option that qualifies as an "Incentive Stock
Option" under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option
shall be $.02 per share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option shall become exercisable
on March 15, 2001, subject to the terms and conditions of this Agreement, and
shall remain exercisable until the close of business on March 14, 2006 (the
"Exercise Period").
5. Termination Due to Death. Upon the death of the
Director, the portion of the Option, if any, that was exercisable as of the date
of death may thereafter be exercised by the legal representative of the estate
or by the legatee of the Director under the will of the Director, for a period
of one year from the date of such death or until the expiration of the Exercise
Period, whichever period is shorter. The portion of the Option, if any, that was
not exercisable as of the date of death shall immediately terminate upon death.
6. Withholding Tax. Not later than the date as of which
an amount first becomes includible in the gross income of the Director for
Federal income tax purposes with respect to the Option, the Director shall pay
to the Company, or make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. The obligations of the Company
pursuant to this Agreement shall be conditional upon such payment or
arrangements with the Company and the Company shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the Director from the Company.
7. Adjustments.
(a) In the event of a stock split, stock
dividend, combination of shares, or any other similar change in the Common Stock
of the Company as a whole, the Board of Directors of the Company shall make
equitable, proportionate adjustments in the number and kind of shares covered by
the Option and in the option price hereunder.
(b) In the event of any reclassification or
reorganization of the outstanding shares of Common Stock other than a change
covered by subsection (a) hereof or that solely affects the par value of such
shares of Common Stock, or in the case of any merger or consolidation of the
Company with or into another corporation (other than a consolidation or merger
in which the Company is the continuing corporation and that does not result in
any reclassification or reorganization of the outstanding shares of Common
Stock), the Holder shall have the right thereafter (until the expiration of the
right of exercise of this Option) to receive upon the exercise hereof after such
event, for the same aggregate Exercise Price payable hereunder immediately prior
to such reclassification, reorganization, merger or consolidation, the amount
and kind of consideration receivable by a holder of the number of shares of
Common Stock of the Company obtainable upon exercise of this Option immediately
prior to such event. The provisions of this subsection (b) shall similarly apply
to successive reclassifications, reorganizations, mergers or consolidations,
sales or other transfers.
8. Method of Exercise.
8.1 Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
8.2 Delivery of Option Shares. The Company
shall deliver a certificate for the Option Shares to the Director as soon as
practicable after payment therefor.
8.3 Payment of Purchase Price.
8.3.1 Cash Payment. The Director shall
make cash payments by wire transfer, certified or bank check or personal check,
in each case payable to the order of the Company. The Company shall not be
required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
8.3.2 Cashless Payment. The Company, in
its sole discretion, may allow the Director to use Common Stock of the Company
owned by him or her to pay the purchase price for the Option Shares by delivery
of stock certificates in negotiable form that are effective to transfer good and
valid title thereto to the Company, free of any liens or encumbrances. Shares of
Common Stock used for this purpose shall be valued at the Fair Market Value of
the Company's Common Stock on the last trading day preceding the date of
exercise. "Fair Market Value", unless otherwise required by any applicable
provision of the Internal Revenue Code of 1986, as amended, and any successor
thereto and the regulations thereunder, means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on such date, as
reported by the exchange or Nasdaq, as the case may be; (ii) if the Common Stock
is not listed on a national securities exchange or quoted on the Nasdaq National
Market or Nasdaq SmallCap Market, but is traded in the over-the-counter market,
the closing bid price for the Common Stock on such date, as reported by the OTC
Bulletin Board or the National Quotation Bureau, Incorporated or similar
publisher of such quotations; and (iii) if the fair market value of the Common
Stock cannot be determined pursuant to clause (i) or (ii) above, such price as
the Board of Directors shall determine, in good faith.
8.3.3 Payment of Withholding Tax. Any
required withholding tax may be paid in cash or with Common Stock in accordance
with Sections 8.3.1. and 8.3.2.
8.3.4 Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
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the Securities Exchange Act of 1934; (ii) such shares of Common Stock may not be
sold or transferred to the Company; or (iii) such transfer could create legal
difficulties for the Company.
9. Nonassignability. The Option shall not be assignable
or transferable except by will or by the laws of descent and distribution in the
event of the death of the Director. No transfer of the Option by the Director by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice thereof
and a copy of the will and such other evidence as the Company may deem necessary
to establish the validity of the transfer and the acceptance by the transferee
or transferees of the terms and conditions of the Option.
10. Company Representations. The Company hereby
represents and warrants to the Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered
by the Company to the Director in accordance with the terms and
conditions hereof, will be duly and validly issued and fully paid and
non-assessable.
11. Director Representations. The Director hereby
represents and warrants to the Company that:
(i) he or she is acquiring the Option and shall
acquire the Option Shares for his or her own account and not with a
view towards the distribution thereof;
(ii) he or she has received a copy of all reports
and documents required to be filed by the Company with the Securities
and Exchange Commission pursuant to the Exchange Act within the last 24
months and all reports issued by the Company to its stockholders;
(iii) he or she understands that he or she must
bear the economic risk of the investment in the Option Shares, which
cannot be sold by him or her unless they are registered under the
Securities Act of 1933 (the "Securities Act") or an exemption therefrom
is available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the 1933 Act;
(iv) in his or her position with the Company, he
or she has had both the opportunity to ask questions and receive
answers from the officers and directors of the Company and all persons
acting on its behalf concerning the terms and conditions of the offer
made hereunder and to obtain any additional information to the extent
the Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the accuracy
of the information obtained pursuant to clause (ii) above;
(v) he or she is aware that the Company shall
place stop transfer orders with its transfer agent against the transfer
of the Option Shares in the absence of registration under the 1933 Act
or an exemption therefrom as provided herein; and
(vi) The certificates evidencing the Option
Shares shall bear the following legends:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or
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transferred in the absence of such registration or an
exemption therefrom under said Act."
"The shares represented by this certificate have been acquired
pursuant to a Stock Option Agreement, dated as of March 15,
2001, a copy of which is on file with the Company, and may not
be transferred, pledged or disposed of except in accordance
with the terms and conditions thereof."
12. Restriction on Transfer of Option Shares.
(a) Anything in this Agreement to the contrary
notwithstanding, the Director hereby agrees that he or she shall not sell,
transfer by any means or otherwise dispose of the Option Shares acquired by him
or her without registration under the Securities Act, or in the event that they
are not so registered, unless (i) an exemption from the Securities Act
registration requirements is available thereunder, and (ii) the Director has
furnished the Company with notice of such proposed transfer and the Company's
legal counsel, in its reasonable opinion, shall deem such proposed transfer to
be so exempt.
(b) Anything in this Agreement to the contrary
notwithstanding, the Director hereby agrees that he or she shall not sell,
transfer by any means or otherwise dispose of the Option Shares acquired by him
except in accordance with the Company's policy, if any, regarding the regarding
the sale and disposition of securities owned by employees and/or directors of
the Company.
13. Miscellaneous.
13.1 Notices. All notices, requests, deliveries,
payments, demands and other communications that are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the Company at its principal
executive office and to the Director at his address set forth below, or to such
other address as either party shall have specified by notice in writing to the
other. Notice shall be deemed duly given hereunder when delivered or mailed as
provided herein.
13.2 Stockholder Rights. The Director shall not
have any of the rights of a stockholder with respect to the Option Shares until
such shares have been issued after the due exercise of the Option.
13.3 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
13.4 Entire Agreement. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. This Agreement may not be amended except by writing executed by
the Director and the Company.
13.5 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives, any rights, remedies,
obligations or liabilities.
13.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions); provided, however, that all
matters relating to or involving corporate law shall be governed by the Delaware
General Corporation Law.
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13.7 Headings. The headings contained herein are
for the sole purpose of convenience of reference and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
INTERCOM SYSTEMS, INC. Address: Intercom Systems, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxx #0
Xxxxxxxx, Xxxxxxx 00000
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
HOLDER: Address:
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
--------------------------
DATE
Intercom Systems, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxx #0
Xxxxxxxx, Xxxxxxx 00000
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of March 15, 2001
("Agreement") with Intercom Systems, Inc. (the "Company"), I hereby irrevocably
elect to exercise the right to purchase _____ shares of the Company's common
stock, par value $.0005 per share ("Common Stock"), which are being purchased
for investment and not for resale.
As payment for my shares, enclosed is (check and complete applicable
box[es]):
|_| a [personal check] [certified check] [bank check] payable to
the order of the Company in the sum of $___________________;
|_| confirmation of wire transfer in the amount of $_____________;
and/or
|_| With the consent of the Company, a certificate for ____ shares
of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a Fair Market Value (as
such term is defined in my Stock Option Agreement) of
$_________.
I hereby represent, warrant to, and agree with, the Company that:
(i) I am acquiring the Option Shares for my own account,
for investment, and not with a view towards the distribution thereof;
(ii) I have received a copy of all reports and documents
required to be filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 within the last 24 months and all reports issued
by the Company to its stockholders;
(iii) I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me unless they are
registered under the Securities Act of 1933 (the "Securities Act") or an
exemption therefrom is available thereunder and that the Company is under no
obligation to register the Option Shares for sale under the Securities Act;
(iv) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company;
(v) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the officers and directors
of the Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional information
to the extent the Company possesses or may possess such information or can
acquire it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii) above;
(vi) I am aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Option Shares in the
absence of registration under the Securities Act or an exemption therefrom as
provided herein; and
(vii) the certificates evidencing the Option Shares shall
bear the following legends:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933. The shares may not be sold or transferred in the absence of such
registration or an exemption therefrom under said Act."
"The shares represented by this certificate have been acquired pursuant
to a Stock Option Agreement, dated as of March 15, 2001, a copy of
which is on file with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms and conditions
thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
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(Signature) (Address)
------------------------------ ------------------------------
(Print Name)
------------------------------
(Social Security Number)
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