Exhibit 10.1
AMINCOR, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
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Optionee:
Grant Date: April 1, 2011
Per Share Exercise Price: $1.88/SHARE
Number of Option Shares subject to this Option:
* * * * *
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement"), dated as of
the Grant Date specified above, is entered into by and between AMINCOR, INC., a
Nevada corporation (the "Company"), and the Optionee specified above; and
WHEREAS, it has been determined that it would be in the best interests of
the Company to grant the non-qualified stock option provided for herein to the
Optionee;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth and for other good and valuable consideration, the parties
hereto hereby mutually covenant and agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, as of the
Grant Date specified above, a non-qualified stock option (this "Stock Option")
to acquire from the Company at the Per Share Exercise Price specified above, the
aggregate number of shares of the Company Class A Common Stock (the "Common
Stock") specified above (the "Option Shares"). This Stock Option is not to be
treated as (and is not intended to qualify as) an incentive stock option within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. No Dividend Equivalents. The Optionee shall not be entitled to receive a
cash payment in respect of the Option Shares underlying this Stock Option on any
dividend payment date for the Common Stock.
3. Exercise of this Stock Option. This Stock Option shall fully vest and
become exercisable immediately on the Grant Date.
Unless earlier terminated in accordance with the terms and provisions of
this Agreement, this Stock Option shall expire and shall no longer be
exercisable after the fifth anniversary of the Grant Date (the "Option Period").
In no event shall this Stock Option be exercisable for a fractional share of
Common Stock.
4. Method of Exercise and Payment. This Stock Option shall be exercised by
the Optionee by delivering to the Secretary of the Company or his designated
agent on any business day (the "Exercise Date") a written notice, in such manner
and form as may be required by the Company, specifying the number of the Option
Shares the Optionee then desires to acquire (the "Exercise Notice"). The
Exercise Notice shall be accompanied by payment of (i) the aggregate Per Share
Exercise Price for such number of the Option Shares to be acquired upon such
exercise and (ii) the amount necessary to cover any applicable withholding or
other taxes due upon exercise of this Stock Option. Such payment shall be made
in cash, by certified check, bank draft or money order payable to the order of
the Company or by any other method acceptable to the Company, in its sole
discretion.. The exercise of any portion of this Stock Option shall be
contingent upon the Optionee (or his or her estate or designated
beneficiary(ies)) becoming a party to, or executing, any stockholders,
shareholders or subscription agreement that the Company, in its sole discretion,
determines to be appropriate. Any such agreement may, in the sole discretion of
the Company, include drag-along rights, call rights upon termination of
employment, transfer restrictions, rights of first refusal, and any other terms
and conditions that the Company determines to be appropriate.
5. Changes in Capitalization and Other Matters.
5.1 No Corporate Action Restriction. The existence of this Stock
Option shall not limit, affect or restrict in any way the right or power of the
Board of Directors of the Company (the "Board") or the stockholders of the
Company to make or authorize (a) any adjustment, recapitalization,
reorganization or other change in the Company's or any subsidiary's capital
structure or its business, (b) any merger, consolidation or change in the
ownership of the Company or any subsidiary, (c) any issue of bonds, debentures,
capital, preferred or prior preference stocks ahead of or affecting the
Company's or any subsidiary's capital stock or the rights thereof, (d) any
dissolution or liquidation of the Company or any subsidiary, (e) any sale or
transfer of all or any part of the Company's or any subsidiary's assets or
business, or (f) any other corporate act or proceeding by the Company or any
Subsidiary. The Optionee shall not have any claim against any member of the
Board, the Company or any subsidiary, or any employees, officers, stockholders
or agents of the Company or any subsidiary as a result of any such action.
5.2 Changes in Capital Structure. This Stock Option shall be subject
to adjustment or substitution, as determined by the Board in its sole
discretion, as to the number, price or kind of a share of stock or other
consideration subject to this Stock Option or as otherwise determined by the
Board to be equitable (i) in the event of changes in the outstanding stock or in
the capital structure of the Company by reason of stock or extraordinary cash
dividends, stock splits, reverse stock splits, recapitalization,
reorganizations, mergers, consolidations, combinations, exchanges, or other
relevant changes in capitalization occurring after the Grant Date or (ii) in the
event of any change in applicable laws or any change in circumstances which
results in or would result in any substantial dilution or enlargement of the
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rights granted to the Optionee, or which otherwise warrants equitable adjustment
because it interferes with the intended operation of the this Stock Option. The
Company shall give each Participant notice of an adjustment hereunder and, upon
notice, such adjustment shall be conclusive and binding for all purposes.
Notwithstanding the above, in the event of any of the following,
A. The Company is merged or consolidated with another corporation or
entity;
B. All or substantially all of the assets of the Company are acquired by
another person;
C. The reorganization or liquidation of the Company; or
D. The Company entering into a written agreement to undergo an event
described in clauses A or B above;
then the Board may, in its discretion, cancel this Stock Option and cause the
Optionee to be paid, in cash or stock (including any stock of a successor or
acquirer), or any combination thereof, the value of this Stock Option, as
determined the Board, based upon the excess of the value of a share of Common
Stock over the exercise price per share (and if the exercise price equals or
exceeds the value of a share of Common Stock, then the Optionee shall not be
entitled to any payment as a result of the cancellation of this Stock Option).
6. Administration. This Stock Option shall be administered by the Board.
The Board is authorized to construe and interpret this Agreement and to
promulgate, amend and rescind rules and regulations relating to the
implementation and administration of this Agreement. The Board shall make all
determinations necessary or advisable for the implementation and administration
of this Stock Option, including, but not limited to, interpreting this Stock
Option and correcting any technical defect(s) or technical omission(s), or
reconciling any technical inconsistency(ies) in this Agreement. Any
determination, decision or action of the Board in connection with the
construction, interpretation, administration, or implementation of this Stock
Option shall be final, conclusive and binding on the Optionee and any person(s)
claiming under or through the Optionee.
7. Termination of Employment.
7.1 If the Optionee's employment with the Company and/or one of its
subsidiaries terminates for any reason (other than Cause), then this Stock
Option shall terminate ninety (90) days after the date of such termination, but
not beyond the expiration of the Option Period, and thereafter this Stock Option
shall be forfeited by the Optionee and cancelled by the Company.
7.2 If the Optionee's employment with the Company and/or one of its
subsidiaries is terminated by the Company for Cause (as defined below), then
this Stock Option shall immediately terminate on the date of such termination
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and thereafter this Stock Option shall be forfeited by the Optionee and
cancelled by the Company. For purposes of this Agreement, "Cause" shall mean a
finding by the Company that Optionee has:
(i) failed to perform his material duties as may be reasonably
assigned to him;
(ii) engaged in negligence or misconduct in connection with or
arising out of the performance of his duties;
(iii) been under the influence of drugs or alcohol during the
performance of his duties for the Company, or while under the influence of such
drugs or alcohol, engages in inappropriate conduct during the performance of his
duties under this Agreement;
(iv) has been found by the Board or a committee thereof, or a
body, panel or tribunal, of competent jurisdiction to have engaged in behavior
that would constitute grounds for liability for sexual harassment (as proscribed
by the U.S. Equal Employment Opportunity Commission Guidelines, the New York
State Division of Human Rights or any other applicable state regulatory body) or
other conduct violative of laws governing the workplace; provided, that, such
finding is not subject to further appeal; or
(v) been convicted on any felony or charge of fraud, larceny,
misappropriation of funds, embezzlement or a crime of moral depravity.
7.3 The Board or the Committee, in its sole discretion, may determine
that all or any portion of this Stock Option may remain exercisable for an
additional specified time period after the period specified above in this
Section 7 expires (subject to any other applicable terms and provisions of this
Agreement), but not beyond the expiration of the Stock Option Period.
7.4 If the Optionee's employer ceases to be a Subsidiary of the
Company, that event shall be deemed to constitute a termination of employment
under Section 7.1 above.
8. Non-transferability. (i) this Stock Option, and any rights or interests
therein, shall not be sold, exchanged, transferred, assigned or otherwise
disposed of in any way at any time by the Optionee (or any beneficiary(ies) of
the Optionee), other than by testamentary disposition by the Optionee or by the
laws of descent and distribution, (ii) this Stock Option shall not be pledged,
encumbered or otherwise hypothecated in any way at any time by the Optionee (or
any beneficiary(ies) of the Optionee) and shall not be subject to execution,
attachment or similar legal process, and (iii) any attempt to sell, exchange,
pledge, transfer, assign, encumber or otherwise dispose of or hypothecate this
Stock Option, or the levy of any execution, attachment or similar legal process
upon this Stock Option, contrary to the terms of this Agreement shall be null
and void and without legal force or effect.
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9. Entire Agreement; Amendment. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter
contained herein, and supersedes all prior agreements or prior understandings,
whether written or oral, between the parties relating to stock options. The
Board or the Committee shall have the right, in its sole discretion, to modify
or amend this Agreement from time to time; provided, however, that no such
modification or amendment shall materially adversely affect the rights of the
Optionee under this Stock Option without the consent of the Optionee; provided,
further, that the Board may amend this Agreement without the consent of the
Optionee in any way it determines appropriate in order to satisfy the
requirements of Section 409A of the Code and the regulations promulgated
thereunder. This Agreement may also be modified or amended by a writing signed
by both the Company and the Optionee. The Company shall give written notice to
the Optionee of any such modification or amendment of this Agreement as soon as
practicable after the adoption thereof.
10. Notices. Any Exercise Notice or other notice which may be required or
permitted under this Agreement shall be in writing, and shall be delivered in
person or via facsimile transmission, overnight courier service or certified
mail, return receipt requested, postage prepaid, properly addressed as follows:
10.1 If such notice is to the Company, to the attention of the
Secretary of Amincor, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000 or at such other address as the Company, by notice to the Optionee,
shall designate in writing from time to time.
10.2 If such notice is to the Optionee, at his or her address as shown
on the Company's records, or at such other address as the Optionee, by notice to
the Company, shall designate in writing from time to time.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
principles of conflict of laws thereof.
12. Compliance with Laws. The issuance of this Stock Option (and the Option
Shares upon exercise of this Stock Option) pursuant to this Agreement shall be
subject to, and shall comply with, any applicable requirements of any federal
and state securities laws, rules and regulations (including, without limitation,
the provisions of the Securities Act of 1933, the Securities Exchange Act of
1934 and the respective rules and regulations promulgated thereunder), any other
law or regulation applicable thereto, and the rules of any exchange upon which
the Common Stock is traded. The Company shall not be obligated to issue this
Stock Option or any of the Option Shares pursuant to this Agreement if any such
issuance would violate any such requirements.
13. No Right to Employment. Neither the granting of this Stock Option, nor
the execution of this Agreement, shall confer upon Optionee any right to
continued employment, with the Company or any subsidiary, as the case may be,
nor shall it interfere in any way with the right, if any, of the Company or any
subsidiary to terminate the employment of Optionee at any time for any reason,
even if such termination adversely affects such this Stock Option.
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14. Binding Agreement; Assignment. This Agreement shall inure to the
benefit of, be binding upon, and be enforceable by the Company and its
successors and assigns. The Optionee shall not assign any part of this Agreement
without the prior express written consent of the Company.
15. Withholding. The Company may, in its sole discretion and in lieu of
requiring the Optionee to pay to the Company an amount necessary to cover any
applicable withholding or other taxes due upon the exercise of this Stock
Option, permit the Optionee to satisfy the applicable withholding requirements
by deducting from any payment or settlement under this Stock Option, any
federal, state, local, foreign, or other taxes of any kind which the Company is
required to withhold.
16. Counterparts. This Agreement may be executed in one or more
counterparts, including by facsimile or PDF, each of which shall be deemed to be
an original, but all of which shall constitute one and the same instrument.
17. Headings. The titles and headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
18. Further Assurances. Each party hereto shall do and perform (or shall
cause to be done and performed) all such further acts and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated thereunder.
19. Severability. The invalidity or unenforceability of any provisions of
this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of any provision of this Agreement in any
other jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Non-Qualified Stock Option
Agreement to be executed by its duly authorized officer, and the Optionee has
hereunto set his hand, all as of the Grant Date specified above.
AMINCOR, INC.
By:
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Name:
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Title:
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Optionee
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NOTICE OF EXERCISE
As of the date hereof, the undersigned hereby exercises options to purchase
_____ shares of Class A common stock of Amincor, Inc. at a price of $____ per
share for an aggregate purchase price of $_____ issued pursuant to a
Non-Qualified Stock Option Agreement between Amincor, Inc. and the undersigned
dated as of _______________.
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Name of Optionee:
Dated:
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