Exhibit 10.3
ORDERPRO LOGISTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT is made and entered into as of this ____
day of ______________, _____, by and between OrderPro Logistics, Inc., a Nevada
corporation ("Company"), and ________________________________ (referred to
herein as the "Optionee"), with reference to the following recitals of facts:
WHEREAS, the Board has authorized the granting to Optionee of an incentive
stock option ("Option") to purchase shares of common stock of the Company
(the "Shares") upon the terms and conditions hereinafter stated; and
WHEREAS, the Board of the Company has heretofore adopted a 2002 Incentive
and Nonstatutory Stock Option Plan (the "Plan"), pursuant to which this
Option is being granted;
WHEREAS, it is the intention of the parties that this Option be an
Incentive Stock Option (a Qualified Stock Option);
NOW, THEREFORE, in consideration of the covenants herein set forth, the parties
hereto agree as follows:
1. SHARES; PRICE. The Company hereby grants to Optionee the right to purchase,
upon and subject to the terms and conditions herein stated, _______ Shares for
cash (or other consideration acceptable to the Board of Directors of the
Company, in their sole and absolute discretion) at the price of $____ per Share,
such price being not less than the fair market value per share of the Shares
covered by these Options as of the date hereof and as determined by the Board of
Directors of the Company. This option is void if the Plan is not approved by a
majority of the Company's Shareholders within 12 months before or after the date
the Plan was adopted by the Company's Board of Directors.
2. TERM OF OPTION; CONTINUATION OF EMPLOYMENT. This Option shall expire, and all
rights hereunder to purchase the Shares shall terminate, ten (10) years from the
date hereof. This Option shall earlier terminate subject to Paragraphs 5 and 6
hereof if, and as of the date, Optionee ceases to be an employee of the Company.
Nothing contained herein shall be construed to interfere in any way with the
right of the Company to terminate the employment or engagement, as applicable,
of Optionee or to increase or decrease the compensation of Optionee from the
rate in existence at the date hereof.
3. VESTING OF OPTION. Subject to the provisions of Paragraphs 5 and 6 hereof,
this Option shall vest and become exercisable during the term of Optionee's
employment or engagement in whole or in part beginning on the date of this
Agreement.
4. EXERCISE. This Option shall be exercised by delivery to the Company of (a) a
written notice of exercise stating the number of Shares being purchased (in
whole shares only) and such other information set forth on the form of Notice of
Exercise attached hereto as Appendix A, (b) a check or cash in the amount of the
purchase price of the Shares covered by the notice, and (c) a written statement
as provided for in Paragraph 11 hereof. This Option shall not be assignable or
transferable, except by will or by the laws of descent and distribution, and
shall be exercisable only by Optionee during his or her lifetime.
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5. TERMINATION OF EMPLOYMENT OR ENGAGEMENT. If Optionee shall cease to serve as
an employee of the Company for any reason, whether voluntarily or involuntarily,
other than by his or her death or the conclusion of the term of a written
consulting agreement, provided such term exceeds one year, Optionee shall have
the right at any time within thirty (30) days after date Optionee ceases to be
an employee of the Company, or the remaining term of this Option, whichever is
the lesser, to exercise in whole or in part this Option to the extent, but only
to the extent, that this Option was exercisable as of the last day of employment
or engagement, as applicable, and had not previously been exercised; provided,
however, that if Optionee's termination of employment or engagement was caused
by permanent disability (within the meaning of Section 22(e)(3) of the Code),
the foregoing thirty (30) day period shall be extended to six (6) months; or
Notwithstanding anything herein to the contrary, all rights under this Option
shall expire in any event on the date specified in Paragraph 2 hereof.
6. DEATH OF OPTIONEE. If the Optionee shall die while an employee of the
Company, Optionee's personal representative or the person entitled to Optionee's
rights hereunder may at any time during the remaining term of this Option,
exercise this Option and purchase Shares to the extent, but only to the extent,
that Optionee could have exercised this Option as of the date of Optionee's
death; provided, in any case, that this Option may be so exercised only to the
extent that this option has not previously been exercised by Optionee.
7. NO RIGHTS AS STOCKHOLDER. Optionee shall have no rights as a stockholder with
respect to the Shares covered by any installment of this Option until the date
of the issuance of a stock certificate to Optionee, and no adjustment will be
made for dividends or other rights for which the record date is prior to the
date such stock certificate or certificates are issued except as provided in
Paragraph 8 hereof.
8. RECAPITALIZATION. Subject to any required action by the stockholders of the
Company, the number of Shares covered by this Option, and the price per Share
thereof, shall be proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a subdivision or consolidation of shares
or the payment of a stock dividend, or any other increase or decrease in the
number of such shares affected without receipt of consideration by the Company;
provided however that the conversion of any convertible securities of the
Company shall not be deemed having been "effected without receipt of
consideration by the Company."
In the event of a proposed dissolution or liquidation of the Company, a merger
or consolidation in which the Company is not the surviving entity, or a sale of
all or substantially all of the assets of the Company, this Option shall
terminate immediately prior to the consummation of such proposed action, unless
otherwise provided by the Board. The Board may, at its sole and absolute
discretion and without obligation, declare that this Option shall terminate as
of a date fixed by the Board and grant Optionee the right for a period
commencing thirty (30) days prior to and ending immediately prior to such date,
or during the remaining term of this Option, whichever occurs sooner, to
exercise this Option as to all or any part of the Shares, without regard to the
installment provision of Paragraph 3; provided, however, that such exercise
shall be subject to the consummation of such dissolution, liquidation, merger,
consolidation or sale.
Subject to any required action by the stockholders of the Company, if the
Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
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of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the vesting provisions of Section 3
shall continue to apply.
In the event of a change in the Shares of the Company as presently constituted,
which is limited to a change of all of its authorized Shares without par value
into the same number of Shares with a par value, the Shares resulting from any
such change shall be deemed to be the Shares within the meaning of this
Agreement.
To the extent that the foregoing adjustments relate to shares or securities of
the Company, such adjustments shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as hereinbefore
expressly provided, Optionee shall have no rights by reason of any subdivision
or consolidation of share of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class, and the number and price of shares subject to this Option shall not
be affected by, and no adjustments shall be made by reason of, any dissolution,
liquidation, merger or consolidation, or any issue by the Company of shares of
stock of any class or securities convertible into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations or changes in
its capital or business structure or to merge, consolidate, dissolve or
liquidate or to sell or transfer all or any part of its business or assets.
9. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon exercise of
this Option, Optionee may recognize income, for federal and state income tax
purposes, in an amount equal to the amount by which the fair market value of the
Shares, determined as of the date of exercise, exceeds the exercise price. The
acceptance of the Shares by Optionee shall constitute an agreement by Optionee
to report such income in accordance with then applicable law and to cooperate
with Company in establishing the amount of such income and corresponding
deduction to the Company for its income tax purposes. Withholding for federal or
state income and employment tax purposes will be made, if and as required by
law, from Optionee's then current compensation, or, if such current compensation
is insufficient to satisfy withholding tax liability, the Company may require
Optionee to make cash payment to cover such liability as a condition of the
exercise of this Option.
10. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Board may modify, extend
or renew this Option or accept the surrender thereof (to the extent not
theretofore exercised) and authorize the granting of a new option in
substitution therefore (to the extent not theretofore exercised), subject at all
times to the Plan. Notwithstanding the foregoing provisions of this Paragraph
10, no modification shall, without the consent of the Optionee, alter to the
Optionee's detriment or impair any rights of Optionee hereunder.
11. INVESTMENT INTENT; RESTRICTIONS ON TRANSFER. Optionee represents and agrees
that if Optionee exercises this Option in whole or in part, Optionee will in
each case acquire the Shares upon such exercise for the purpose of investment
and not with a view to, or for resale in connection with, any distribution
thereof; and that upon such exercise of this Option in whole or in part,
Optionee (or any person or persons entitled to exercise this Option under the
provisions of Paragraphs 5 and 6 hereof) shall furnish to the Company a written
statement to such effect, satisfactory to the Company in form and substance. The
Company, at its option, may include a legend on each certificate representing
Shares issued pursuant to any exercise of this Option, stating in effect that
such Shares have not been registered under the Securities Act of 1933, as
amended (the "Act"), and that the transferability thereof is restricted. If the
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Shares represented by this Option are registered under the Act, either before or
after the exercise of this Option in whole or in part, the Optionee shall be
relieved of the foregoing investment representation and agreement and shall not
be required to furnish the Company with the foregoing written statement.
Optionee further represents that Optionee has had access to the financial
statements or books and records of the Company, has had the opportunity to ask
questions of the Company concerning its business, operations and financial
condition, and to obtain additional information reasonably necessary to verify
the accuracy of such information, and further represents that Optionee (either
such experience and knowledge in investment, financial and business matters in
investments similar to the stock of the Company that Optionee is capable of
evaluating the merits and risks thereof and has the capacity to protect his or
her own interest in connection therewith.
12. REGISTRATION RIGHTS.
a. PIGGYBACK REGISTRATION RIGHTS. If the Company at any time proposes to
register any of its securities under the Act, including under an S-8
Registration Statement, an SB-2 Registration Statement or otherwise, it
will each such time give written notice to all holders of outstanding or
exercised options of its intention so to do. Upon the written request of a
holder or holders of any such outstanding or exercised options given within
thirty (30) days after receipt of any such notice, the Company will use its
best efforts to cause all such outstanding or exercised options, the
holders of which shall have so requested registration thereof, to be
registered under the Act (with the securities which the Company at the time
propose to register), all to the extent requisite to permit the sale or
other disposition by the prospective Sellers of the outstanding or
exercised options so registered; provided, however, that the Company may,
as a condition precedent to its effecting such registration, require each
prospective Seller to agree with the Company and the managing underwriter
or underwriters of the offering to be made by the Company in connection
with such registration that such Seller will not sell any securities of the
same class or convertible into the same class as those registered by the
Company (including any class into which the securities registered by the
Company are convertible) for such reasonable period after such registration
becomes effective as shall then be specified in writing by such underwriter
or underwriters if in the opinion of such underwriter or underwriters the
Company's offering would be materially adversely affected in the absence of
such an agreement.
b. PROCEDURES. In connection with the registration of any securities
pursuant to Section 12.a. hereof, the Company and the Optionee covenant and
agree as follows:
(i) The Company shall pay all costs, fees, and expenses incurred by
the Company and the Optionee in connection with the Registration
Statement and the offering thereunder including, without limitation,
the Company's legal fees and expenses of counsel, accounting fees,
printing expenses, and blue sky fees and expenses (but excluding
discounts or selling commissions of any underwriter or broker dealer
acting on behalf of the company or the Optionee).
(ii) The Company shall take all necessary action which may be
reasonably required in qualifying or registering the securities
included in the Registration Statement for offering and sale under the
securities or blue sky laws of all states reasonably requested by
Optionee, provided that the Company shall not be obligated to qualify
as a foreign corporation to do business under the laws of any such
jurisdiction.
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(iii) The Company shall indemnify Optionee and each person, if any,
who controls Optionee within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934 (the "Exchange
Act"), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of
them may become subject under the Act, the Exchange Act or otherwise,
arising from the Registration Statement.
(iv) The Company shall, as soon as practicable after the effective
date of the Registration Statement, and in any event within fifteen
(15) months thereafter, make "generally available to its security
holders" (within the meaning of Rule 158 under the Act) an earnings
statement (which need not be audited) complying with Section 11(a) of
the Act and covering a period of at least twelve (12) consecutive
months beginning after the effective date of the Registration
Statement.
(v) The Company shall (A) deliver promptly to Optionee and its
counsel, upon request, copies of all correspondence between the
Commission and the Company, its counsel, or auditors and all memoranda
relating to discussions with the Commission or its staff with respect
to the Registration Statement; and (B) permit Optionee and its counsel
to perform such investigation, upon reasonable advance notice, with
respect to information contained in or omitted from the Registration
Statement, as it deems reasonably necessary to comply with applicable
securities laws or rules of the National Association of Securities
Dealers, Inc. Such investigation shall include, but not be limited to,
access to financial and accounting information and opportunities to
discuss the business of the Company with the Company's officers and
independent auditors, all to such reasonable extent, at such
reasonable times and as often as Optionee and its counsel shall
reasonably request.
(vi) The Company shall cause all securities of Optionee registered
pursuant to a Registration Statement to be listed on any national
securities exchange or quoted on any automated quotation system on
which similar securities of the Company are listed or quoted.
13. STAND-OFF AGREEMENT. Optionee agrees that in connection with any
registration of the Company's securities, that upon the request of the Company
or any underwriter managing an underwritten offering of the Company's
securities, that Optionee shall not sell, short any sale of, loan, grant an
option for, or otherwise dispose of any of the Shares (other than Shares
included in the offering) without the prior written consent of the Company or
such managing underwriter, as applicable, for a period of at least one hundred
eighty (180) days following the effective date of registration of such offering.
14. NOTICES. Any notice required to be given pursuant to this Option or the Plan
shall be in writing and shall be deemed to be delivered upon receipt or, in the
case of notices by the Company, five (5) days after deposit in the US. mail,
postage prepaid, addressed to Optionee at the address last provided to the
Company by Optionee for his or her employee records.
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15. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Agreement is made pursuant
to the Plan and shall be interpreted to comply therewith. A copy of such Plan is
available to Optionee, at no charge, at the principal office of the Company. Any
provision of this Agreement inconsistent with the Plan shall be considered void
and replaced with the applicable provision of the Plan. This Agreement has been
granted, executed and delivered in the State of Arizona, and the interpretation
and enforcement shall be governed by the laws thereof and subject to the
exclusive jurisdiction of the courts therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
ORDERPRO LOGISTICS, INC.
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By: Xxxxxxx Xxxxxxxxx
Its: Chief Executive Officer
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, Optionee
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Appendix A
NOTICE OF EXERCISE
ORDERPRO LOGISTICS, INC.
0000 Xxxxx Xxxxxx Xxxx Xxxxx 000
Xxxxxx, XX 00000
--------------------
(date)
Re: Incentive Stock Option
Notice is hereby given pursuant to Section 4 of my Incentive Stock Option
Agreement that I elect to purchase the number of shares set forth below at the
exercise price set forth in my option agreement:
Stock Option dated: ______________________
Number of shares being purchased: ______________________
Option Exercise Price: $_____________________
A check in the amount of the aggregate price of the shares being purchased is
attached.
I hereby confirm that such shares are being acquired by me for my own account
for investment purposes, and not with a view to, or for resale in connection
with, any distribution thereof.
Further, I understand that, as a result of this exercise of rights, I will
recognize income in an amount equal to the amount by which the fair market value
of the Shares exceeds the exercise price. I agree to report such income in
accordance with then applicable law and to cooperate with Company in
establishing the withholding and corresponding deduction to the Company for its
income tax purposes.
I agree to provide to the Corporation such additional documents or information
as may be required pursuant to the Corporation's 2002 Incentive and Nonstatutory
Stock Option Plan.
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(Signature)
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(Name of Optionee)
