EXHIBIT 4.12
SMARTGATE INC.
2002 INCENTIVE PLAN
INCENTIVE STOCK OPTION (ISO) AGREEMENT
Option Agreement Number: I-002
Date of Grant/Award: January 22, 2002
Name of Optionee: Xxxxxxx X. Xxxxxxx
Optionee's Social Security Number: ###-##-####
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") an Incentive 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 Optionee the right to purchase
from SmartGate Inc. (the "Company") up to Three Hundred Thousand (300,000)
shares of Stock (the "Option Shares") under the Plan at an exercise price of
$3.85 per share, 110% of the Fair Market Value of Stock on the Grant Date. The
Option is intended by the parties hereto to be, and shall 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 he interpreted in accordance with the Plan.
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. The Option is exercisable in installments as provided below,
which shall be cumulative. To the extent that the Option has become exercisable
with respect to a number of shares of Stock as provided below, the Option may he
exercised, in whole or in part, at any time or from time to time prior to the
expiration of the Option as provided herein. The following table indicates each
date (the "Vesting Date") upon which the Optionee shall be entitled to exercise
the Option with respect to the number of shares of Stock granted as indicated
beside the date.
NUMBER OF SHARES OF STOCK VESTING DATE
------------------------- ------------
100,000 January 22, 2003
200,000 January 22, 2004
300,000 January 22, 2005
Except as otherwise specifically provided herein, 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. As soon as you are
no longer employed by the Company and its Subsidiaries, any unvested portion of
the Option shall terminate and be null and void.
5. 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
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.
6. 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.
7. 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 Incentive Stock Option (ISO) Agreement, and the
Optionee has placed his or her signature hereon, effective as of the Grant Date.
SMARTGATE INC.
Attest:
By: [SIG]
-----------------------------
Title: Chairman
ACCEPTED AND AGREED TO:
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
Xxxxxxx X. Xxxxxxx
Optionee
ATTACH TO XXXXX XXXXXXX'X PLAN 2002 OPTION
FILING SCHEDULE PURSUANT TO PARAGRAPH 2.
INSTRUCTIONS TO ITEM 601 UNDER SECTION 229.601 EXHIBITS OF REGULATION S-K
A stock option substantially identical in all material respects except
for the grantee and number of shares eligible for purchase was granted to the
following persons for the purchase of the following amounts of shares:
--------------------------------------
GRANTEE NUMBER OF
SHARES
--------------------------------------
XXXXXX X. XXXXXX 300,000
--------------------------------------
XXXXXXX X. XXXXX 100,000
--------------------------------------
LETTER OF INVESTMENT INTENT
SmartGate, Inc.
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Dear Corporate Personnel:
In connection with the issuance to me of shares of Common Stock
("Shares") of SmartGate, Inc. ("Company") which I may purchase under that
certain Stock Option granted to me on January 22, 2002 to which this Letter of
Investment Intent is attached ("Option"), I represent the following:
The Shares are being acquired by me for investment and not with a view
to, or for resale in connection with, any distribution of those Shares.
I intend to hold the Shares issued to me for investment for my own
account and I do not presently intend to dispose of all or any part of those
Shares.
I understand that the Shares issued to me will not have been registered
under the Securities Act of 1933, as amended (the "Act"), by reason of a
specific exemption under the provisions of the Act.
I understand that: the Company has no obligation to me to register any
or all the Shares under the Act for distribution; the Company has not agreed
with me to comply with Regulation A or any other exemption under the Act
respecting the resale or other transfer of the Shares; the Company is neither
presently required to register, nor does it presently intend voluntarily to
register under Section 12 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and file periodic reports with the Securities and Exchange
Commission pursuant to Sections 13 or 15(d) of the 1934 Act; and the Company has
no obligations to supply such information as will be required to enable me to
make sales of any or all of the Shares under Rule 144 under the Act.
I understand and accept that an investment in the Company involves a
high degree of risk and is only suitable for investors willing and able to
accept the long-term and non-transferable nature of the investment and the
potential risk that the entire amount invested may be lost.
I have engaged an investor representative or I am a sophisticated
businessperson and investor and have the experience and knowledge necessary to
enable me to evaluate the risks and merits involved in the purchase of the
Company's stock.
Because of my or my investor representative's business knowledge and
experience, I do not require a formal disclosure document, prospectus or private
placement memorandum in connection with the purchase of the Company's stock.
I or my investor representative are relying upon our own independent
investigation in connection with the purchase of the Company's stock. In
connection therewith, I have had access to all books and financial records of
the Company, all materials, contracts and documents relating to the Company, and
the right to ask questions of officers, directors, consultants and other parties
associated with the Company.
I or my investor representative have sufficient knowledge and experience
in financial and business matters to evaluate the potential risk of this
investment and that I have been afforded access to all information concerning
the Company that I have reasonably requested.
I have received the following right of rescission disclosure from the
Company:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
FLORIDA SECURITIES ACT. EACH OFFEREE WHO IS A FLORIDA RESIDENT
SHOULD BE AWARE THAT SECTION 517.061(11)(a)5 OF THE FLORIDA
SECURITIES ACT PROVIDES AS FOLLOWS: "WHEN SALES ARE MADE TO FIVE OR
MORE PERSONS IN THIS STATE, ANY SALE IN THIS STATE MADE PURSUANT TO
THIS SUBSECTION IS VOIDABLE BY THE PURCHASER IN SUCH SALE EITHER
WITHIN 3 DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY
SUCH PURCHASER TO THE ISSUER, AN AGENT OF THE ISSUER, OR AN ESCROW
AGENT OR WITHIN 3 DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS
COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS LATER."
I agree as follows:
In the event of an Initial Public Offering of the Company's stock, the
Shares issued to me shall be subject to any Lock-Up Agreement agreed to by the
Company and imposed by the underwriter upon the holders of the Company's stock.
I agree to enter and execute any such documents as may be reasonably necessary
to effectuate such Lock-Up Agreement required by the underwriter engaged by the
Company. I further agree that my failure to execute such Lock-Up Agreement
within twenty days of tender of such Lock-Up Agreement to me shall entitle the
Company to repurchase my Shares for the purchase price I paid per share.
The Shares may not be sold, assigned, transferred, conveyed, pledged, or
hypothecated to any party without, at the Company's option, an opinion from
securities counsel for the Company or counsel for me if acceptable to the
Company that such transfer or conveyance does not violate federal or applicable
state securities laws or in the alternative, a Registration Statement is in
effect with the Securities and Exchange Commission and applicable state
securities departments covering said conveyance.
The following legends shall be placed on the certificate or certificates
delivered to me or any substitute therefor:
"THE SHARES OF STOCK (THE "SHARES") EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER, RIGHT OF REPURCHASE, AND LOCK-UP PROVISIONS
(COLLECTIVELY THE "RESTRICTIONS") CONTAINED IN AN AGREEMENT ENTERED INTO BY THE
CORPORATION AND THE NAMED HOLDER OF THIS CERTIFICATE ("AGREEMENT"). THE SHARES
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED OR HYPOTHECATED TO ANY
PARTY EXCEPT IN COMPLIANCE WITH THE RESTRICTIONS CONTAINED IN THE AGREEMENT. A
COPY OF THE RESTRICTIONS CONTAINED IN THE AGREEMENT IS AVAILABLE FROM THE
CORPORATION WITHOUT CHARGE UPON REQUEST.
THE SHARES OF STOCK (THE "SHARES") EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE
SECURITIES LAW. NO RESALES, PLEDGES, HYPOTHECATIONS OR OTHER TRANSFERS OF THE
SHARES EVIDENCED BY THIS CERTIFICATE SHALL BE MADE AT ANY TIME WHATSOEVER,
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UPON THE ISSUANCE OF A FAVORABLE OPINION OF
THE CORPORATION'S LEGAL COUNSEL OR OF LEGAL COUNSEL ACCEPTABLE TO THE
CORPORATION THAT THE RESALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF SUCH
SHARES SHALL NOT BE IN VIOLATION OF THE ACT, OR ANY STATE SECURITIES ACT."
The Company may place a stop-transfer order with the Company's transfer
agent prohibiting transfer of the Shares until the above conditions and terms
have been fulfilled.
The Company's obligation to issue shares to me under the Option is
contingent upon my signing and delivering to the Company this Letter of
Investment Intent simultaneously with the purchase price for the shares.
I understand and agree that my representations and warranties and
agreements in this Letter of Investment Intent shall survive the closing of the
share purchase and issuance transactions between me and the Company resulting
from my exercise(s) of the Option.
Very truly yours, ACCEPTED:
SmartGate, Inc.
By:
------------------------------ ------------------------------
FILING SCHEDULE PURSUANT TO PARAGRAPH 2.
INSTRUCTIONS TO ITEM 601 UNDER SECTION 229.601 EXHIBITS OF REGULATION S-K
A Letter of Investment Intent substantially identical in all material
respects was attached to the Plan 2002 Option Agreements as follows:
Plan 2002 Option Agreement with Xxxxxx X. Xxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxx X. Xxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxx Xxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxxx X. Xxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxxx Xxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxxx Xxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxx Xxxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxxxxx XxXxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxx Xxxxxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxxx Xxxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxxx Xxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxxx Xxxxxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxx Xxxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxx Xxxxxxx - January 22, 2002
Plan 2002 Option Agreement with Xxxxx Xxxxxxxxx - January 22, 2002
Plan 2000 Option Agreement with Xxxxxxxx Xxxx - January 22, 2002
