NOVUME SOLUTIONS, INC. NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
Exhibit
10.19
NOVUME SOLUTIONS, INC.
NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
THIS
AGREEMENT (this “Agreement”) is made as of
this ____ day of _______ between Novume
Solutions, Inc., a Delaware corporation (the
“Company”), and ________________________ (the
“Recipient”). Capitalized terms used herein that
are not otherwise defined shall have the meaning ascribed to them
in the Novume Solutions, Inc. 2017 Equity Award Plan (the
“Plan”). This Agreement and the award contained herein
are subject to the terms and conditions set forth in the Plan,
which are incorporated by reference herein, and the following terms
and conditions:
WITNESSETH:
WHEREAS,
the Recipient is a Director of the Company;
WHEREAS,
the Company has adopted the Plan in order to promote the interests
of the Company and its stockholders by using equity interests in
the Company to attract, retain and motivate its management and
other eligible persons and to encourage and reward their
contributions to the Company’s and/or its Affiliates’
performance and profitability; and
WHEREAS,
the Administrator has determined that it is in the best interests
of the Company to grant options to purchase shares of the common
stock, par value $0.0001 per share (“Common Stock”), of
the Company to the Recipient, subject to the terms and conditions
of the Plan and as set forth in this Agreement.
NOW,
THEREFORE, in consideration of the various covenants and agreements
contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Grant of
Options.
(a) The Company hereby grants to the Recipient
options (the “Options”) to purchase all or part of an
aggregate of _______ shares of Common Stock (the “Shares”),
under the Plan, effective as of __________ (the “Date of Grant”). The Company
hereby represents that the Date of Grant is the date on
which the Administrator authorized and approved the grant of the
Options, including the underlying number of Shares and the Exercise
Price (as defined below), or such later date as set forth in the
Administrator’s action authorizing the grant; provided, that, in no event may the
Date of Grant precede the date on which the Recipient commenced
providing services to the Company. To the extent there is a conflict between
the terms and conditions of the Plan and this Agreement, the terms
and conditions of this Agreement shall control.
(b)
The Options are not intended to qualify as “incentive stock
options” as that term is used in Section 422 of the
Internal Revenue Code of 1986, as amended (the
“Code”).
2. Exercise
Price. The per Share exercise
price of the Options shall be ______ (the “Exercise Price”), which shall be
not less than 100% of the Fair Market Value per Share on the Date
of Grant.
3. Term.
The term of the Options shall expire as of the earliest of the
following, as applicable:
(a)
the date that is ten (10) years from the Date of
Grant;
(b)
if the Recipient is a Director:
1
(i)
in the event the Recipient ceases to be a Director other than (A)
for Cause or (B) as a result of the Recipient’s death, then
the date which is three (3) years from the date of such termination
of service as a Director; or
(ii)
in the event the Recipient ceases to be a Director for Cause, then
the date the Recipient ceases to be a Director for
Cause;
(iii)
in the event the Recipient ceases to be a Director as a result of
the Recipient’s death, then the date which is twelve (12)
months from the date of death;
(c)
if the Recipient is an Employee or a Consultant:
(i) in the event the Recipient’s engagement
is terminated for any reason other than (A) for Cause, (B) the
Recipient’s death, (C) the Recipient’s Disability,
or (D) the Recipient’s Retirement, the date which is
three (3) months from the date of such
termination; provided,
however, that if the Recipient
dies within such three-month period, such date shall be twelve
(12) months from the date of death;
(ii)
in the event the Recipient’s engagement is terminated for
Cause, the date the Recipient’s engagement by the Service
Recipient is terminated for Cause;
(iii)
in the event the Recipient’s engagement is terminated as a
result of death or Disability, the date that is twelve
(12) months from the date of such termination; or
(iv)
in the event the Recipient’s engagement is terminated as a
result of Retirement (as applicable to Employees only), the date
which is three (3) years following such
Retirement; provided, however, that if the Recipient dies
within such three-year period, such date shall be twelve
(12) months from the date of death.
To the extent that a portion of the Options has not vested prior to
the termination of the Recipient’s engagement (including by
reason of the Recipient’s death, Disability or Retirement),
the Recipient shall forfeit all rights hereunder with respect to
that unvested portion of the Options as of the date of such
termination.
4. Vesting and
Exercise. Subject to any
forfeiture provisions in this Agreement or in the Plan, the Options
shall vest with respect to the Shares covered by the Options in
accordance with the following schedule, provided that the Recipient
is engaged on such date by the Service
Recipient:
________
Shares shall immediately vest on the Date of Grant,
_______________.
The Recipient may only exercise the Options to the extent it is
vested; provided,
however, that the Recipient may
not exercise any portion of the Options prior to the date that is
one (1) year after the Date of Grant.
To the extent the Options have not previously been
forfeited:
(a)
if there is a Change in Control after which this award of Options
is continued by the Company, assumed by the resulting entity (or
one of its affiliates) or substituted by the resulting entity (or
one of its affiliates) into an equivalent award, then the
Options will continue to vest in accordance with this Section 4
unless otherwise accelerated by the Administrator;
2
(b)
if there is a Change in Control after which this award of Options
is not continued, assumed or substituted as described above, then
all unvested Options will immediately vest upon the consummation of
such Change in Control.
5. Method of Exercising
Option.
(a) Subject to the terms and conditions of this
Agreement, the Options may be exercised by written notice delivered
to the Company or its designated representative in the manner and
at the address for notices set forth in Section 13 hereof. Such
notice shall state that the Options are being exercised thereby and
shall specify the number of Shares for which the Options are being
exercised. The notice shall be signed by the person or persons
exercising the Options and shall be accompanied by payment in full
of the Exercise Price for such Shares being acquired upon the
exercise of the Options. Payment of such Exercise Price may be
made by one of the following methods:
(i)
in cash (in the form of a certified or bank check or such other
instrument as the Administrator may accept);
(ii)
in other shares of Common Stock owned on the date of exercise of
the Options by the Recipient based on the Fair Market Value of such
shares on such date of exercise;
(iii)
in any combination of (i) and (ii) above;
(iv)
by delivery of a properly executed exercise notice together with
such other documentation as the Administrator and a qualified
broker, if applicable, shall require to effect an exercise of the
Options, and delivery to the Company of the proceeds required to
pay the Exercise Price; or
(v)
by requesting that the Company withhold a number of Shares then
issuable upon exercise of the Options as will have a Fair Market
Value equal to the Exercise Price of the remaining Shares being
acquired upon the exercise of the Options.
If the tender of shares of Common Stock as payment
of the Exercise Price would result in the issuance of fractional
shares of Common Stock, the Company shall instead return the
balance in cash or by check to the Recipient. If the Options
are exercised by any person or persons other than the Recipient,
the notice described in this Section 5(a) shall
be accompanied by appropriate proof (as determined by the
Administrator) of the right of such person or persons to exercise
the Options under the terms of the Plan and this
Agreement. The Company shall issue and deliver, in the name of
the person or persons exercising the Options, a certificate or
certificates representing such Shares as soon as practicable after
notice and payment are received and the exercise is
approved.
(b)
The Options may be exercised in accordance with the terms of the
Plan and this Agreement with respect to any whole number of Shares,
but in no event may any Options be exercised as to fewer than one
hundred (100) Shares at any one time, or the remaining Shares
covered by the Options if less than two hundred (200).
(c) The Recipient shall have no rights of a
stockholder with respect to Shares to be acquired by the exercise
of the Options until the date of issuance of a certificate or
certificates representing such Shares. No adjustment shall be
made for dividends or other rights for which the record date is
prior to the date such stock certificate is issued, except as
provided in Section 7
of this Agreement. All Shares
purchased upon the exercise of the Options as provided herein shall
be fully paid and non-assessable.
3
(d)
The Recipient agrees that no later than the date as of which an
amount first becomes includible in his gross income for federal
income tax purposes with respect to the Options, the Recipient
shall pay to the Company, or make arrangements satisfactory to the
Company regarding the payment of, any federal, state, local or
foreign taxes of any kind required by law to be withheld with
respect to such amount. Withholding obligations may be settled
with shares of Common Stock, including Shares that are acquired
upon exercise of the Options. The obligations of the Company
under this Agreement and the Plan shall be conditional on such
payment or arrangements, and the Company and its Affiliates shall,
to the extent permitted by law, have the right to deduct any such
taxes from any payment otherwise due to the Recipient.
6. Non-Transferability.
The Options may not be sold, pledged, assigned, hypothecated,
transferred or disposed of in any manner other than (i) by
will or the laws of descent or distribution, (ii) pursuant to
a qualified domestic relations order (as defined in the Code or
Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder), (iii) to family members of
a Recipient or trusts for the benefit of family members of a
Recipient in transactions not involving payment of consideration,
or (iv) as permitted by Rule 701 of the Securities Act of
1933, as amended. The Options may be exercised, during the lifetime
of the Recipient, only by the Recipient, his guardian or his legal
representative, or by an alternate payee pursuant to a qualified
domestic relations order. Any attempt to assign, pledge or
otherwise transfer the Options or of any right or privilege
conferred thereby, contrary to the Plan, or the sale or levy or
similar process upon the rights and privileges conferred hereby,
shall be void.
7. Adjustment upon
Changes in Capitalization.
Subject to any required action by the stockholders of the Company,
the Administrator, in a manner consistent with Section 9 of
the Plan, shall make or cause to be made a proportionate adjustment
in the number of Shares covered by each outstanding Award and the
number of Shares which have been authorized for issuance under the
Plan but as to which no Awards have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an
Award, as well as the price per Share covered by each such
outstanding Award, for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, special cash dividend, combination or
reclassification of the Common Stock, or any other similar increase
or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the
Company; provided,
however, that (i) conversion of
any convertible securities of the Company shall not be deemed to
have been “effected without receipt of consideration;”
and (ii) in no event shall the Exercise Price be adjusted below the
par value of a share of Common Stock, nor shall any fraction of a
Share be issued upon the exercise of the Options. Any securities,
awards or rights issued pursuant to this Section 7 shall
be subject to the same restrictions as the underlying Shares to
which they relate.
8. Conditions upon
Issuance of Option. As a
condition to the exercise of the Options, the Company may require
the Recipient to (i) represent and warrant at the time of any
such exercise that the Shares are being purchased or held only for
investment and without any present intention to sell or distribute
such Shares if, in the opinion of legal counsel for the Company,
such a representation is required by any relevant provision of law;
and (ii) enter into a lock-up or similar agreement with the
Company with respect to such Shares prohibiting, for up to ninety
(90) days, the disposition of such Shares.
9. Rights of the
Recipient. In no event shall
the granting of the Options or the other provisions hereof or the
acceptance of the Options by the Recipient interfere with or limit
in any way the right of the Service Recipient to terminate the
Recipient’s engagement as a Service Provider at any time, nor
confer upon the Recipient any right to continue in the service of
the Service Recipient for any period of time or to continue his or
her present or any other rate of compensation.
4
10. Return of
Property. Upon the termination
of the Recipient’s engagement by the Service Recipient for
any reason whatsoever all property of the Company or any of its
Affiliates that is in the possession of the Recipient shall be
promptly returned to the Company, including, without limitation,
all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists
and other materials that contain Confidential Information which are
in the possession of the Recipient, including all copies thereof.
Anything to the contrary notwithstanding, the Recipient shall be
entitled to retain (i) papers and other materials of a
personal nature, including, but not limited to, photographs,
correspondence, personal diaries, calendars and rolodexes, personal
files and phone books, (ii) information showing his or her
compensation or relating to reimbursement of expenses,
(iii) information that he or she reasonably believes may be
needed for tax purposes, and (iv) copies of plans, programs
and agreements relating to his or her engagement, or termination
thereof, with the Service Recipient.
11. Confidentiality.
The Company and the Recipient acknowledge that the services to be
performed by the Recipient under this Agreement are unique and
extraordinary and, as a result of his or her engagement therefor,
the Recipient shall be in possession of Confidential Information
relating to the business practices of the Company and its
Affiliates. The term “Confidential Information” shall
mean any and all information (oral and written) relating to the
Company and any of its Affiliates, or any of their respective
activities, or of the clients, customers, acquisition targets,
investment models or business practices of the Company or any of
its Affiliates, other than such information which (i) is
generally available to the public or within the relevant trade or
industry, other than as the result of breach of the provisions of
this Section 11,
or (ii) the Recipient is required to disclose under any
applicable laws, regulations or directives of any government
agency, tribunal or authority having jurisdiction in the matter or
under subpoena or other process of law. The Recipient shall not,
during the period the Recipient is engaged by the Service
Recipient, nor at any time thereafter, except as may be required in
the course of the performance of his duties hereunder and except
with respect to any litigation or arbitration involving this
Agreement, including the enforcement hereof, directly or
indirectly, use, communicate, disclose or disseminate to any
person, firm or corporation any Confidential Information regarding
the Company or any of its Affiliates nor of the clients, customers,
acquisition targets or business practices of the Company or any of
its Affiliates acquired by the Recipient during, or as a result of,
his engagement by the Company, without the prior written consent of
the Company. Without limiting the foregoing, the Recipient
understands that the Recipient shall be prohibited from
misappropriating any trade secret of the Company or any of its
Affiliates or of the clients or customers of the Company or any of
its Affiliates acquired by the Recipient during, or as a result of,
his engagement by the Service Recipient at any time during or after
the period the Recipient is engaged by the Service
Recipient.
12. Continuing
Obligation. In the event of any
violation of Section 11 of
this Agreement, the Recipient acknowledges and agrees that the
post-termination restrictions contained in Section 11 shall
be extended by a period of time equal to the period of such
violation, it being the intention of the parties hereto that the
running of the applicable post-termination restriction period shall
be tolled during any period of such violation.
13. Miscellaneous.
(a) Successors.
This Agreement and all the terms and provisions hereof shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective legal representatives, heirs and successors,
except as expressly herein otherwise provided.
(b) Entire Agreement;
Modification. This Agreement
contains the entire understanding between the parties with respect
to the matters referred to herein. Subject to Section 12 of
the Plan, this Agreement
5
may not be amended by the Administrator without the
Recipient’s consent if the amendment shall impair the
Recipient’s rights under this Agreement.
(c) Capitalized Terms;
Headings; Pronouns; Governing Law. Capitalized terms used and not otherwise defined
herein are deemed to have the same meanings as in the Plan. The
descriptive headings of the respective sections and subsections of
this Agreement are inserted for convenience of reference only and
shall not be deemed to modify or construe the provisions which
follow them. Any use of any masculine pronoun shall include the
feminine and vice-versa and any use of a singular, the plural and
vice-versa, as the context and facts may require. The construction
and interpretation of this Agreement shall be governed in all
respects by the laws of the State of Delaware.
(d) Notices.
Each notice relating to this Agreement shall be in writing and
shall be sufficiently given if delivered by registered or certified
mail, or by a nationally recognized overnight delivery service,
with postage or charges prepaid, to the address hereinafter
provided in this Section 13.
Any such notice or communication given by first-class mail shall be
deemed to have been given two business days after the date so
mailed, and such notice or communication given by overnight
delivery service shall be deemed to have been given one business
day after the date so sent, provided such notice or communication
arrives at its destination. Each notice to the Company shall be
addressed to it at its offices at 00000 Xxxxxxxxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, XX, 00000 (attention: Chief Financial
Officer), with a copy to the General Counsel of the Company or to
such other designee of the Company. Each notice to the Recipient
shall be addressed to the Recipient at the Recipient’s
address shown on the signature page hereof.
(e) Severability.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or the
application thereof to any party or circumstance shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective to the minimal extent of such provision or the
remaining provisions of this Agreement or the application of such
provision to other parties or circumstances.
(f) Counterpart
Execution. This Agreement may
be executed in counterparts, each of which shall constitute an
original and all of which, when taken together, shall constitute
the entire document.
* *
*
6
IN WITNESS
WHEREOF, the Company has caused
this Agreement to be duly executed by its officer thereunto duly
authorized, and the Recipient has executed this Agreement all as of
the day and year first above written.
|
|
|
NOVUME SOLUTIONS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Its:
|
|
|
|
|
|
|
|
|
|
|
RECIPIENT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recipient’s
Address:
|
|
|
Signature page to Incentive Non-Qualified Stock Option Award
Agreement
|
7
