EXHIBIT 10.26
EVCI CAREER COLLEGES HOLDING CORP.
STOCK OPTION AGREEMENT
(NONQUALIFIED STOCK OPTION)
THIS AGREEMENT, made as of ____________________, by EVCI Career Colleges
Holding Corp. a Delaware Corporation (the "Company"), with ___________________
_______________________ (the "Holder"):
On July 27, 2004, the Company's stockholders approved a proposal to grant
three of the Company's executive officers options to purchase a total of 181,131
shares of the Company's common stock. Although the grants are not being made
under the Company's Amended and Restated 2004 Incentive Stock Plan (the "Plan"),
they are required to be governed by an agreement approved by the Committee
administering the Plan. For ease of administration, the Committee has determined
that an appropriate agreement would be one in substantially the same form as the
Company's Stock Option Agreement that is used for option grants made pursuant to
the Plan. Accordingly, the Plan, in its current form, is incorporated herein by
reference and made part of this Agreement. Capitalized terms in this Agreement
shall have the same meaning as in the Plan unless the context requires
otherwise.
NOW, THEREFORE, the Company hereby grants to the Holder, as of the date
hereof, the Option to purchase all or any part of ____________________ shares
(the "Shares") of Common Stock of the Company, par value $.0001 per share (the
"Common Stock"), at a price per share of $4.70. The Option shall also be subject
to the following terms and conditions:
1. a. The Option shall continue in force through July 26, 2009 (the
"Expiration Date"), unless sooner terminated as provided herein or in the Plan.
The Option shall vest and to become exercisable, on a cumulative basis, as to
_________________ shares on November 11, 2004, ____________________ shares on
November 11, 2005 and _____________________ shares on November 11, 2006.
However, the Option shall become fully vested and exercisable on a Change of
Control Date.
b. The Option is designated as a stock option that does not qualify
as an incentive stock option pursuant to the Code.
2. In the event that the relationship of the Holder to the Company and
each Related Entity is terminated prior to the Expiration Date (otherwise than
by reason of death or disability), the Option may be exercised (to the extent
that the Holder was entitled to do so at the termination of this relationship
with the Company and its Related Entities) at any time within 90 days after such
termination, but not after the Expiration Date, provided, however, that if such
termination shall have been for cause or voluntarily by the Holder and without
the consent of the Company or any Related Entity, as the case may be, the Option
and all rights of the Holder hereunder, to the extent not theretofore exercised,
shall forthwith terminate immediately upon such termination. In its sole and
absolute discretion, the Committee may extend such 90-day time period and amend
this Agreement accordingly.
3. If the Holder shall (a) die within 90 days after the termination of the
Holder's relationship with the Company (other than termination for cause, or
voluntarily on the Holder's part and without the consent of the Company or a
Related Entity, as the case may be, which consent shall be presumed in the case
of normal retirement), or (b) become permanently and totally disabled within the
meaning of Section 22(e)(3) of the Code while serving as an employee, director
or consultant to the Company, and if the Option was otherwise exercisable,
immediately prior to the occurrence of such event, then such Option may be
exercised, to the extent it so exercisable, as set forth herein by the Holder or
by the Holder's legal representative(s), at any time within six months after the
date of death of the Holder, or six months after the date of permanent or total
disability of the Holder, but in either case, not later than the Expiration
Date.
4. a. The Holder may exercise the Option with respect to any number of
whole shares less than the full number of shares subject to the Option but not
for less than 100 shares. The Holder may exercise the Option by giving the
Company written notice of such exercise in the form annexed, as provided in
paragraph 7 hereof. Such notice shall specify the number of shares as to which
the Option is being exercised and shall be accompanied by payment in full as
permitted by Section 7(e) of the Plan.
b. Prior to or concurrently with delivery by the Company to the
Holder of a certificate(s) representing such shares, the Holder shall, upon
notification of the amount due, pay promptly any amount necessary to satisfy
applicable federal, state or local tax requirements. In the event such amount is
not paid promptly, the Company shall have the right to apply from the Purchase
Price paid any taxes required by law to be withheld by the Company with respect
to such payment and the number of shares to be issued by the Company will be
reduced accordingly.
5. The Option shall, during the Holder's lifetime, be exercisable only by
the Holder or the Holder's legal representative(s) in the event of the Holder's
incapacity. Neither the Option nor any right hereunder shall be transferable by
the Holder, by operation of law or otherwise, except by will or the laws of
descent and distribution or pursuant to a beneficiary designation as provided in
Section 13 of the Plan. In the event of any attempt by the Holder to transfer,
assign, pledge, hypothecate or otherwise dispose of this Option or of any right
hereunder, except as provided for herein, or in the event of the levy or any
attachment, execution or similar process upon the rights or interest hereby
conferred, the Company may terminate the Option by notice to the Holder and it
shall thereupon become null and void.
6. The Option is subject to, and the Company and the Holder agree to be
bound by, all of the terms and conditions of the Plan, as the same is amended
from time to time in accordance with the terms thereof; provided, however, that
no such amendment shall deprive the Holder, without the Holder's consent, of the
Option or any of the Holder's rights hereunder. A copy of the Plan is available
upon request made to the Company's Chief Financial Officer.
7. Any notice to the Company provided for in this Agreement shall be
addressed to the Company in care of its Chief Financial Officer, at its
principal executive offices, and any notice to the Holder shall be addressed to
the Holder at the Holder's address now on file with the Company, or to such
other address as either may last have designated to the other by notice as
provided in the next sentence. Any notice so addressed shall be deemed to be
given, upon receipt, if delivered by hand, receipt acknowledged, or on the
second business day after mailing, by registered or certified mail, at a post
office or branch post office within the United States.
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8. In the event that any question or controversy shall arise with respect
to the nature, scope or extent of any one or more rights conferred by the
Option, the determination by the Committee of the rights of the Holder shall be
conclusive, final and binding upon the Holder and upon any other person who
shall assert any right pursuant to the Option.
EVCI Career Colleges Holding Corp.
By:------------------------------------
Name:
Title:
ACCEPTED AND AGREED:
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FORM OF NOTICE OF EXERCISE
TO: EVCI Career Colleges Holding Corp.
At its principal executive offices
The undersigned hereby exercises the Holder's option to purchase
______________________ shares of Common Stock (the "Shares") of EVCI Career
Colleges Holding Corp. ("EVCI"), as provided in the Stock Option Agreement made
as of ______________________ at $____________ per share, for a total of
$__________, and makes payment therefore as follows:
(a) If permitted by EVCI's Board of Directors, to the extent of
$__________ of the purchase price, the undersigned hereby surrenders to EVCI
certificates for shares of its Common Stock, which have been held by the
undersigned for such period as may be required to avoid a charge to EVCI's
earnings for financial accounting purposes. Valued at $__________ per share, the
fair market value thereof equals such portion of the purchase price.
(b) To the extent of the balance of the purchase price, the undersigned
has enclosed a certified or bank check payable to the order of, or caused a wire
transfer to be made to, EVCI for $__________.
A stock certificate or certificates for the Shares should be delivered in
person or mailed to the undersigned at the address shown below.
The undersigned acknowledges that: unless notified otherwise in writing by
EVCI, (i) the Shares have not been registered under the Securities Act of 1933
("Securities Act") or any State securities laws ("State Laws") and, therefore,
cannot be sold or otherwise disposed of unless they are subsequently registered
under the Securities Act and applicable State Laws or, in the opinion of counsel
to EVCI, an exemption from registration is available; (ii) the undersigned will
have no right to require that the Shares be registered under the Securities Act
or any State Laws; and (iii) the certificate evidencing the Shares will bear
legends covering the restrictions described above.
Signature:-----------------------------
Name:----------------------------------
Address:-------------------------------
-------------------------------
Date:----------------------------------
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