Exhibit 4.3
TMSF HOLDINGS, INC.
2003 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
NAME: ___________________
This
AGREEMENT is made effective as of the ___day of ___________, _______ (the “Option Grant Date”), by and
between TMSF Holdings, Inc., a Delaware corporation (the “Company”) and ________________ (the “Optionee”).
RECITALS
WHEREAS,
the Company’s Board of Directors adopted the 2003 Stock Option, Deferred Stock and Restricted Stock
Plan (the “Plan”) as of January 30, 2003, which was approved by the Company’s stockholders as of May
16, 2003, and
WHEREAS,
pursuant to the provisions of said Plan, the Administrator has granted to the Participant (as defined
in the Plan) by action duly taken on ________ __, 200_, (the “Award Date”) a stock option award (the
“Stock Option Award”) based upon the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of services rendered and to be rendered by the Participant and the mutual
promises and covenants made herein, the mutual benefits to be derived therefrom and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1.
The Option(s). The Optionee may, at his/her option, purchase all or any part of an aggregate
of __________ shares of Common Stock (the “Optioned Shares”), at the price of $_________ per share (the
“Option Price”), on the terms and conditions set forth herein.
2.
Option Type; Exercise Dates and Exercise. Options intended to qualify as Incentive Stock Options
are designated by an “ISO” under the category “Type.” Options intended as separate Non-Qualified Stock
Options are designated by a “NQSO” under the category “Type.” The Option(s) shall be exercisable as
to the specified number of Optioned Shares on and after the “First” dates and on or before the “Last”
dates set forth below:
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Type
Number of Shares First
and Last Date
Optionee
acknowledges that he/she understands he/she has no right whatsoever to exercise the Option(s) granted
hereunder with respect to any Optioned Shares covered by any installment until such installment accrues
(and is thus vested) as provided above. Optionee further understands that the Option(s) granted hereunder
shall expire and become unexercisable as provided in Section 4(c) below.
In
the event, within twelve (12) months after a Change in Control, the Optionee’s employment terminates
other than (i) for Cause, (ii) voluntary termination by the Optionee, or (iii) death or disability of
the Optionee, fifty percent (50%) of the unvested Optioned Shares shall vest upon the date of such termination.
For the purposes of the foregoing, a “Change in Control” shall have the meaning set forth in Section
9(b) of the Plan. For purposes of this Agreement, “Cause” shall mean (i) a material act of dishonesty
in connection with the Optionee’s responsibilities as an employee of the Company; (ii) the Optionee’s
conviction of, or plea of nolo contendere to, a felony or a crime involving moral turpitude, (iii) the
Optionee’s gross misconduct which has a material adverse effect on the Company, or (iv) the Optionee’s
consistent and willful failure to perform his or her employment duties where such failure is not cured
within 30 days after written notice to participant by the Company.
3.
Method of Exercise. This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal business office by the
Optionee with respect to the Common Stock to be purchased. Such notice shall be accompanied by full
payment in cash or cash equivalents as determined by the Administrator. As determined by the Administrator,
in its sole discretion, payment in whole or part may also be made (i) in the form of unrestricted Stock
already owned by the Optionee, or, in the case of the exercise of a Non-Qualified Stock Option, Restricted
Stock subject to an Award hereunder (based, in each case, on the Fair Market Value of the Stock), (ii)
by cancellation of any indebtedness owed by the Company to the Optionee, (iii) by a full recourse promissory
note executed by the Optionee, (iv) by requesting that the Company withhold whole shares of Common Stock
then issuable upon exercise of the Stock Option (based on the Fair Market Value of the Stock), (v) by
arrangement with a broker which is acceptable to the Administrator where payment of the option price
is made pursuant to an irrevocable direction to the broker to deliver all or part of the proceeds from
the sale of the shares underlying the option to the Company, or (vi) by any combination of the foregoing;
provided, however, that in the case of an Incentive Stock Option, the right to make payment
in the form of already owned shares may be authorized only at the time of grant. Any payment in the
form of Stock already owned by the Optionee may be effected by use of an attestation form approved by
the Administrator. If payment of the option exercise price of a NQSO is made in whole or in part in
the form of Restricted Stock or Deferred Stock, the shares received upon the exercise of such Option
(to the extent of the number of shares of Restricted Stock or Deferred Stock surrendered upon exercise
of such Option) shall be restricted in accordance with the original terms of the Restricted Stock or
Deferred Stock award in question, except that the Administrator may direct that such restrictions shall
apply only to that number of shares surrendered upon the exercise of such Option.
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4.
Governing Plan. This Agreement hereby incorporates by reference the Plan and all of the terms
and conditions of the Plan as heretofore amended and as the same may be amended from time to time hereafter
in accordance with the terms thereof, but no such subsequent amendment shall adversely affect the Optionee’s
rights under this Agreement and the Plan except as may be required by applicable law. The Optionee expressly
acknowledges and agrees that the provisions of this Agreement are subject to the Plan; the terms of
this Agreement shall in no manner limit or modify the controlling provisions of the Plan, and in case
of any conflict between the provisions of the Plan and this Agreement, the provisions of the Plan shall
be controlling and binding upon the parties hereto. The Optionee also hereby expressly acknowledges,
represents and agrees as follows:
(a)
Acknowledges receipt of a copy of the Plan, a copy of which is attached hereto and by reference incorporated
herein, and represents that he/she is familiar with the terms and provisions of said Plan, and hereby
accepts this Agreement subject to all the terms and provisions of said Plan.
(b)
Agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator
upon any questions arising under the Plan.
(c)
Acknowledges that he/she is familiar with Sections of the Plan regarding the exercise of the Option(s)
and represents that he/she understands that said Option(s) must be exercised on or before the “Last”
exercise date noted above in Section 2 or such other date as set forth in the Plan, whichever is earlier.
(d)
Acknowledges, understands and agrees that the existence of the Plan and the execution of this Agreement
are not sufficient by themselves to cause any exercise of any Option(s) granted as an Incentive Stock
Option to qualify for favorable tax treatment through the application of Section 422 of the Internal
Revenue Code; that Optionee must, in order to so qualify, individually meet by his own action all applicable
requirements of Section 422, including without limitation the following holding period and employment
requirements:
(1)
holding period requirement: no disposition of an Optioned Share may be made by Optionee within
two (2) years from the date of the granting of the Option(s) nor within one (1) year after the transfer
of such Optioned Share to him/her, and
(2)
employment requirement: at all times during the period beginning on the date of the granting
of the Option(s) and ending on the day three (3) months before the date of exercise, the Optionee must
have been an employee of the Company, its Parent, or a Subsidiary of the Company, or a corporation or
a parent or subsidiary of such corporation issuing or assuming the Option(s) in a transaction to which
Section 425(a) of the Internal Revenue Code applies, except where the termination of employment is by
means of the employee’s disability, in which case said three (3) month period may be extended to one
(1) year, as provided under Internal Revenue Code Section 422.
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5.
Representations and Warranties. Optionee hereby represents to the Company that each of the Options
evidenced hereby and the shares purchasable upon exercise thereof are being acquired only for investment
and without any present intention to sell or distribute such securities.
6.
Options Not Transferable. No Stock Option shall be transferable by the Optionee other than by
will or by the laws of descent and distribution. Incentive Stock Options shall be exercisable, during
the Optionee’s lifetime, only by the Optionee or, with respect to Non-Qualified Stock Options, in accordance
with the terms of a qualified domestic relations order.
7.
No Enlargement of Employee Rights. Nothing in this Agreement shall be construed to confer upon
the Optionee (if an employee) any right to continued employment with the Company or to restrict in any
way the right of the Company to terminate his/her employment. Optionee acknowledges that in the absence
of an express written employment agreement to the contrary, the Company may terminate Optionee’s employment
with the Company at any time, with or without cause.
8.
Withholding of Taxes. Optionee authorizes the Company to withhold, in accordance with any applicable
law, from any compensation payable to him any taxes required to be withheld by federal, state or local
law as a result of the grant of the Option(s) or the issuance of stock pursuant to the exercise of such
Option(s).
9.
Laws Applicable to Construction. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware.
10.
Agreement Binding on Successors. The terms of this Agreement shall be binding upon the executors,
administrators, heirs, successors, transferees and assignees of the Optionee.
11.
Costs of Litigation. In any action at law or in equity to enforce any of the provisions or rights
under this Agreement or the Plan, the unsuccessful party to such litigation, as determined by the court
in a final judgment or decree, shall pay the successful party or parties all costs, expenses and reasonable
attorneys’ fees incurred by the successful party or parties (including without limitation costs, expenses
end fees on any appeals), and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys’ fees shall be included as part of the judgment.
12.
Necessary Acts. The Optionee agrees to perform all acts and execute and deliver any documents
that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited
to all acts and documents related to compliance with federal and/or state securities laws.
13.
Counterparts. For convenience this Agreement may be executed in any number of identical counterparts,
each of which shall be deemed a complete original in itself and may be introduced in evidence or used
for any other purpose without the production of any other counterparts.
14.
Invalid Provisions. In the event that any provision of this Agreement is found to be invalid
or otherwise unenforceable under any applicable law, such invalidity or unenforceability shall not be
construed as rendering any other provisions contained herein invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same extent as though the invalid and unenforceable
provision was not contained herein.
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15.
Limitation on Value of Optioned Shares. Optionee acknowledges that the Plan provides that the
aggregate fair market value (determined as of the date hereof) of the shares of Common Stock to which
Options granted as Incentive Stock Options are exercisable for the first time by Optionee during any
calendar year under all incentive stock option plans of the Company and any future Subsidiary shall
not exceed $100,000. It is understood and agreed that should it be determined that an Option if granted
as an Incentive Stock Option hereunder would exceed such maximum, such Option shall be considered granted
as a Non-Qualified Stock Option to the extent, but only to the extent of such excess. This limitation
shall not apply to any option granted as a Non-Qualified Stock Option.
IN
WITNESS WHEREOF, the Company and the Optionee have executed this Agreement effective as of the date
first written hereinabove.
TMSF HOLDINGS, INC. By: Name: Title: |
OPTIONEE Print Name: Social Security: Address of Optionee:
|
By
his or her signature below, the spouse of the Optionee, if such Optionee be legally married as of the
date of his execution of this Agreement, acknowledges that he or she has read this Agreement and the
Plan and is familiar with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
By
his or her signature below the Optionee represents that he or she is not legally married as of the date
of execution of this Agreement.