Exhibit 10.1.12
STRATUS SERVICES GROUP, INC.
INCENTIVE STOCK OPTION AGREEMENT
[FOR GRANTS TO EMPLOYEES]
STRATUS SERVICES GROUP, INC. a Delaware corporation (the "Company"), hereby
grants to XXXXXX X. XXXXXXX, XX. (the "Optionee"), an Incentive Stock Option
(the "Option") to purchase a total of 1,750,000 shares of the Company's Common
Stock, at the price set forth herein, and subject to the terms, definitions and
provisions of the 2002 Equity Incentive Plan (the "Plan") adopted by the
Company, which is incorporated herein by reference. The terms defined in the
Plan shall have the same defined meanings herein.
1. NATURE OF THE OPTIONS. The Incentive Stock Option is intended to qualify
as an "incentive stock option" as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"). The shares underlying the Option are
hereinafter referred to as the "Shares".
2. EXERCISE PRICE. The exercise price of the Option is $.65 per share for
each share subject to the Option.
3. TERMS OF OPTIONS. This Option is granted in connection with the
Optionee's employment by the Company. Subject to provisions contained elsewhere
in this Agreement, the Option may be exercised cumulatively as set forth below
after the vesting date set forth below, until the day preceding the fifth
anniversary of the date hereof (the "Termination Date"):
VESTING DATE NUMBER OF OPTIONS
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March 28, 2002 1,750,000
The Option shall vest and become exercisable upon issuance. The Option is
subject to earlier termination as provided herein or in the Plan. The Option may
be exercised in whole or in part at any time and from time to time following the
date of grant and prior to the expiration or termination of the Option.
Except as otherwise provided in the Plan, no installment of the Option
shall be exercisable prior to the vesting of such installment as provided above.
To the extent that any installment of the Option becomes exercisable, it may
thereafter be exercised either in whole or in part at any time prior to the
expiration of the Option.
4. ADMINISTRATION. The Plan is administered by a committee of the Board
(the "Committee" as defined in the Plan). All determinations and acts of the
Committee as to any matters concerning the Plan, including interpretations or
constructions of this Option and of the Plan, shall be conclusive and binding on
the Optionee and any parties claiming through the Optionee.
5. EXERCISE. Unless the Optionee ceases to be employed by the Company or a
direct or indirect subsidiary thereof, the right of the Optionee to purchase
Shares hereunder, subject to any installment requirements set forth above, may
be exercised in whole or in part at any time after the accrual of such
respective installment and prior to the Termination Date, except as otherwise
provided herein. The Option may not be exercised for a fraction of a share.
Notwithstanding the foregoing, the Optionee's right to exercise the Option shall
be limited by the number of shares of Company Common Stock available for
issuance pursuant to Awards granted under the Plan.
6. NOTICE OF EXERCISE. The Option shall be exercisable by written notice
(the "Notice") which shall state the election to exercise the Option and the
number of Shares in respect of which the Option is being exercised, and such
other representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Chief Financial Officer
of the Company. The written notice shall be accompanied by payment in full of
the exercise price in cash or cashier's check made payable to the Company, or in
any other manner approved by the Committee.
7. DELIVERY OF CERTIFICATES. As soon as practicable after receipt of the
Notice and payment, and subject to the next two paragraphs, the Company shall,
without transfer or issue tax or other incidental expense to the Optionee,
deliver to the Optionee a certificate or certificates for the shares of Common
Stock so purchased. Such delivery shall be made (a) at the offices of the
Company at 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000; (b) at such other
place as may be mutually acceptable to the Company and the Optionee, or (c) by
certified mail addressed to the Optionee at the Optionee's address shown in the
records of the Company.
8. WITHHOLDING. The Company shall have the right to withhold an appropriate
number of shares of Common Stock (based on the fair market value thereof on the
date of exercise) for payment of taxes required by law or to take such other
action as may be necessary in the opinion of the Company to satisfy all tax
withholding obligations.
9. COMPLIANCE WITH LAWS. The Company may postpone the time of delivery of
certificate(s) for shares of Common Stock for such additional time as the
Company shall deem necessary or desirable to enable it to comply with the
requirements of any securities exchange upon which the Common Stock may be
listed, or the requirements of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, any rules or regulations of the
Securities and Exchange Commission promulgated thereunder, or any applicable
state laws relating to the authorization, issuance or sale of securities.
10. NON-TRANSFERABLE OPTIONS. During the Optionee's lifetime, this Option
shall be exercisable only by the Optionee and neither this Option nor any right
hereunder may be sold, pledged, assigned, hypothecated, transferred or disposed
of in any manner otherwise than by will or by the laws of descent or
distribution. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of Optionee.
11. FAILURE TO PAY. If, upon tender of delivery thereof, the Optionee fails
to accept delivery of and pay or have paid for all or any part of the number of
shares of Common Stock specified in the Notice, the Optionee's right to exercise
this Option with respect to such undelivered and unpaid for shares may be
terminated by the Company.
12. RESTRICTIONS ON TRANSFER OF SHARES UNDERLYING OPTIONS. The issuance of
the Shares upon the exercise of the Option and the transfer or resale of such
Shares shall be subject to such restrictions as are, in the opinion of the
Company's counsel, required to comply with the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations promulgated thereunder, and
the certificate(s) representing such shares shall, if it is deemed advisable by
the Company's counsel, bear a legend to such effect.
13. NO RIGHTS OF SHAREHOLDER. Neither the Optionee nor any person or
persons entitled to exercise the Optionee's rights under this Option in
accordance herewith shall have any rights to
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dividends or to Common Stock subject to this Option, except to the extent that a
certificate for such shares shall have been issued upon the exercise of this
Option as provided herein.
14. REGISTRATION ON FORM S-8. The Optionee acknowledges that the Option may
not be exercised until the Company has taken all actions then required to comply
with the Act, and any applicable State Securities laws, including, without
limitation, the filing of a Registration Statement on Form S-8 which registers
the shares issuable upon exercise of the Option under the Act, and the delivery
to the Optionee of such information as may be required under the Act.
15. NOTICES. Each notice relating to this Option shall be in writing and
delivered in person or by certified mail to the proper address. All notices to
the Company shall be addressed to it at its offices at 000 Xxxxx Xxxx, Xxxxx
000, Xxxxxxxxx, XX 00000, attention of the Committee, c/o the Company's Chief
Financial Officer. All notices to the Optionee or other person or persons then
entitled to exercise any rights with respect to this Option shall be addressed
to the Optionee or such other person or persons at the Optionee's address shown
in the records of the Company or the location at which the Optionee is employed
by the Company. Anyone to whom a notice may be given under this Option may
designate a new address by notice to that effect.
16. NO RIGHT TO EMPLOYMENT. Neither the adoption of the Plan nor the
granting of this Option confers on the Optionee any right to continued
employment by the Company (or any of its direct or indirect subsidiaries) or in
any way interferes with or alters any of the Company's (and its direct and
indirect subsidiaries') rights to terminate the employment by the Company of the
Optionee at any time, with or without cause, and without liability therefor.
This Option shall not be deemed a part of the Optionee's regular, recurring
compensation for any purpose, including, without limitation, for the purposes of
any termination indemnity or severance pay law of any jurisdiction.
17. GOVERNING LAW. This Option and all determinations made and actions
taken pursuant hereto, to the extent not otherwise governed by the Internal
Revenue Code of 1986, as amended from time to time, or the securities laws of
the United States, shall be governed by and construed under the laws of the
State of Delaware.
IN WITNESS WHEREOF, STRATUS SERVICES GROUP, INC. has caused this Option to
be executed by its officers as of the _____ day of __________.
STRATUS SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
ACCEPTED AND AGREED:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX, XX.
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