Inplay Technologies, Inc. 2005 STOCK AWARD PLAN STOCK OPTION AGREEMENT
Exhibit 10.26
Unless otherwise defined herein, the terms defined in the InPlay Technologies, Inc. 2005 Stock
Award Plan (the “Plan”) shall have the same defined meanings in this Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
| Name: | ||||||
| Address: | ||||||
The undersigned Optionee has been granted an Option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as follows:
| Date of Grant: | ||||||
| Vesting Commencement Date: | ||||||
| Exercise Price Per Share: | $ | |||||
| Total Number of Shares Granted: | ||||||
| Type of Option: | Incentive Stock Option | |||||
| Nonstatutory Stock Option |
Expiration Date: As provided in Section 3 of the Agreement.
Vesting Schedule: This Option shall be vested according to the following vesting schedule:
Exercise Schedule: To the extent vested, this Option shall be exercisable during its term as provided in Section 3 of the Stock Option Agreement.
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II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants to the Optionee
named in the Notice of Stock Option Grant (the “Optionee”), an option (the “Option”) to purchase
the number of Shares set forth in the Notice of Stock Option Grant, at the exercise price per Share
set forth in the Notice of Stock Option Grant (the “Exercise Price”), and subject to the terms and
conditions of the Plan, which is incorporated herein by reference. Subject to Section 10(e) of the
Plan, in the event of a conflict between the terms and conditions of the Plan and this Option
Agreement, the terms and conditions of the Plan shall prevail.
If designated in the Notice of Stock Option Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code.
Nevertheless, to the extent that it exceeds the $100,000 rule of Code Section 422(d), this Option
shall be treated as a Nonstatutory Stock Option (“NSO”).
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its term in accordance
with the Vesting Schedule set out in the Notice of Stock Option Grant and with the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by delivery of an exercise
notice in the form attached as Exhibit A (the “Exercise Notice”) which shall state the
election to exercise the Option, the number of Shares with respect to which the Option is being
exercised, and such other representations and agreements as may be required by the Company.
No Shares shall be issued pursuant to the exercise of an Option unless such issuance and such
exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to the Optionee on the date on which the Option is exercised
with respect to such Shares.
The Option shall be deemed exercised when the Company receives (i) written or electronic
notice of exercise (in accordance with this Option Agreement) from the Optionee (or other person
entitled to exercise the Option), and (ii) full payment for the Shares with respect to which the
Option is exercised, and (iii) any other documents required by this Option Agreement or the
Exercise Notice. Full payment may consist of any consideration and method of payment permitted by
this Option Agreement. Shares issued upon exercise of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Shares, notwithstanding the exercise
of the Option. The Company shall issue (or cause to be issued)
such Shares promptly after the Option is exercised. No adjustment will be made for a dividend
or other right for which the record date is prior to the date the Shares are issued, except as
provided in Section 10(c) of the Plan.
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Exercise of this Option in any manner shall result in a decrease in the number of Shares
thereafter available for sale under the Option, by the number of Shares as to which the Option is
exercised.
3. Term. Optionee may not exercise the Option before the commencement of its term or
after its term expires. During the term of the Option, Optionee may only exercise the Option to
the extent vested. The term of the Option commences on the Date of ▇▇▇▇▇ and expires upon the
earliest of the following:
(a) With respect to the unvested portion of the Option, upon termination of your continuous
service;
(b) With respect to the vested portion of the Option, ninety (90) days after the termination
of your continuous service as a Service Provider for any reason other than your Disability, death
or termination for Cause;
(c) With respect to the vested portion of the Option, immediately upon the termination of your
continuous service as a Service Provider for Cause;
(d) With respect to the vested portion of the Option, twelve (12) months after the termination
of your continuous service as a Service Provider due to your Disability or death;
(e) Immediately prior to the close of certain Corporate Transactions, pursuant to Section
10(c) of the Plan; or
(f) The day before the tenth (10th) anniversary of the Date of ▇▇▇▇▇.
4. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash or check;
(b) consideration received by the Company under a formal cashless exercise program adopted by
the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of ▇▇▇▇▇▇ acquired from the Company,
either directly or indirectly, have been owned by the Optionee for more than six (6) months on the
date of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the
aggregate Exercise Price of the Exercised Shares.
5. Optionee’s Representations. In the event the Shares have not been registered under
the Securities Act of 1933, as amended, at the time this Option is exercised, the Optionee shall,
if required by the Company, concurrently with the exercise of all or any portion of this Option,
deliver to the Company an investment representation statement in a form satisfactory to the
Company.
6. Restrictions on Exercise. This Option may not be exercised until such time as the
Plan has been approved by the stockholders of the Company, or if the issuance of such Shares
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upon
such exercise or the method of payment of consideration for such shares would constitute a
violation of any Applicable Law.
7. Non-Transferability of Option. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by Optionee. The terms of the Plan and this Option Agreement shall be
binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
8. Tax Obligations.
(a) Withholding Taxes. Optionee agrees to make appropriate arrangements with the Company
(or the Parent or Subsidiary employing or retaining Optionee) for the satisfaction of all federal,
state, local and foreign income and employment tax withholding requirements applicable to the
Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of
exercise.
(b) Notice of Disqualifying Disposition of ISO Shares. If the Option granted to Optionee
herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired
pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or
(2) the date one year after the date of exercise, the Optionee shall immediately notify the Company
in writing of such disposition. Optionee agrees that Optionee may be subject to income tax
withholding by the Company on the compensation income recognized by the Optionee.
9. Entire Agreement; Governing Law. The Plan is incorporated herein by reference. The
Plan and this Option Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not be modified adversely
to the Optionee’s interest except by means of a writing signed by the Company and Optionee. This
agreement is governed by the internal substantive laws but not the choice of law rules of Arizona.
10. No Guarantee of Continued Service. Optionee acknowledges and agrees that the
vesting of shares pursuant to the vesting schedule hereof is earned only by continuing as a Service
Provider at the will of the Company (not through the act of being hired, being granted this Option,
or acquiring shares hereunder). Optionee further acknowledges and agrees that this Agreement, the
transactions contemplated hereunder, and the vesting schedule set forth herein do not constitute an
express or implied promise of continued engagement as a Service Provider for the vesting period,
for any period, or at all, and shall not interfere in any way with Optionee’s right or the
company’s right to terminate Optionee’s relationship as a Service Provider at any time, with or
without cause.
Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this Option in their
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entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option and fully understands
all provisions of the Option. Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Administrator upon any questions arising under the Plan or
this Option. Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
Optionee
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InPlay technologies, Inc. | |
Signature
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By | |
Print Name
|
Title | |
Residence Address |
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EXHIBIT A
Attention:
1. Exercise of Option. Effective as of today, , ___, the undersigned
(“Optionee”) hereby elects to exercise Optionee’s option to purchase shares of the Common
Stock (the “Shares”) of InPlay Technologies, Inc. (the “Company”) under and pursuant to the 2005
Stock Award Plan (the “Plan”) and the Stock Option Agreement dated , ___(the “Option
Agreement”).
2. Delivery of Payment. Optionee herewith delivers to the Company the full purchase
price of the Shares, as set forth in the Option Agreement, and any and all withholding taxes due in
connection with the exercise of the Option.
3. Representations of Optionee. Optionee acknowledges that Optionee has received, read,
and understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms
and conditions.
4. Rights as Stockholder. Until the issuance of the Shares (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Shares shall
be issued to the Optionee as soon as practicable after the Option is exercised in accordance with
the Option Agreement. No adjustment shall be made for a dividend or other right for which the
record date is prior to the date of issuance except as provided in Section 10(c) of the Plan.
5. Tax Consultation. Optionee understands that Optionee may suffer adverse tax
consequences as a result of Optionee’s purchase or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Optionee understands and agrees that the Company shall cause the legends set
forth below or legends substantially equivalent thereto, to be placed upon any
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certificate(s)
evidencing ownership of the Shares together with any other legends that may be required by the
Company or by state or federal securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER
FOR A PERIOD NOT TO EXCEED 180 DAYS FOLLOWING THE EFFECTIVE DATE OF THE UNDERWRITTEN
PUBLIC OFFERING OF THE COMPANY’S SECURITIES AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF BY THE HOLDER WITHOUT THE CONSENT OF THE COMPANY OR THE MANAGING
UNDERWRITER.
(b) Stop-Transfer Notices. Optionee agrees that, in order to ensure compliance with the
restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to
its transfer agent, if any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to transfer on its books
any Shares that have been sold or otherwise transferred in violation of any of the provisions of
this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns. The Company may assign any of its rights under this Exercise
Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
this Exercise Notice shall be binding upon Optionee and his or her heirs, executors,
administrators, successors and assigns.
8. Interpretation. Any dispute regarding the interpretation of this Exercise Notice
shall be submitted by Optionee or by the Company forthwith to the Administrator which shall review
such dispute at its next regular meeting. The resolution of such a dispute by the Administrator
shall be final and binding on all parties.
9. Governing Law; Severability. This Exercise Notice is governed by the internal
substantive laws but not the choice of law rules, of Arizona. In the event that any provision
hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or
void, this Option Agreement will continue in full force and effect.
10. Entire Agreement. The Plan and Option Agreement are incorporated herein by reference.
This Exercise Notice, the Plan, the Option Agreement and the Investment Representation Statement
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest
except by means of a writing signed by the Company and Optionee.
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Optionee
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InPlay Technologies, Inc. | |
Signature
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By | |
Print Name
|
Title | |
Residence Address |
[SIGNATURE PAGE OF STOCK OPTION EXERCISE NOTICE]
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