Exhibit 10.4
OPTION NO. 2005-__
STELLAR TECHNOLOGIES, INC.
AMENDMENT NO. 1 TO
STOCK OPTION AGREEMENT UNDER THE
STELLAR TECHNOLOGIES, INC.
2005 STOCK INCENTIVE PLAN
This Amendment No. 1 to Stock Option Agreement (the "Amendment") by and
between Stellar Technologies, Inc. (the "Company") and the person identified
below (the "Optionee") is made as of the date set forth below.
WHEREAS, the Company desires to amend that certain Option Agreement issued
to Optionee under the Stellar Technologies, Inc. 2005 Stock Incentive Plan (the
"Plan") to provide for an additional method of cashless exercise as provided for
in the Plan and to extend exercisability of the Option if Optionee is terminated
after a Change in Control Event.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as set forth below.
1. AMENDMENTS.
(a) Section 2 of the Option Agreement is hereby amended to provide in its
entirety as follows:
"2. PAYMENT OF EXERCISE PRICE. The Option may be exercised, in part or in
whole, only by written request to the Company accompanied by payment of the
exercise price in full either: (i) in cash for the shares with respect to
which it is exercised; (ii) by set off against any amounts owed to the
Optionee by the Company; (iii) if the shares underlying the option are
registered under the Securities Act, by delivering to the Company a notice
of exercise with an irrevocable and unconditional direction to a
creditworthy broker-dealer registered under the Securities Exchange Act of
1934, as amended, to sell a sufficient portion of the shares and deliver
the sale proceeds directly to the Company to pay the exercise price; (iv)
by delivering previously owned shares of Common Stock or a combination of
shares and cash having an aggregate Fair Market Value (as defined in the
Plan) equal to the exercise price of the shares being purchased; provided,
however, that shares of Common Stock delivered by the Optionee may be
accepted as full or partial payment of the exercise price for any exercise
of the Option hereunder only if the shares have been held by the Optionee
for at least six (6) months, are not subject to any repurchase, vesting or
similar right, and such method of payment is then permitted by law; (v) by
reducing the number of shares of Common Stock otherwise issuable under the
Option to the Optionee upon the exercise of the Option by a number of
shares of Common Stock having a Fair Market Value (as defined in the Plan)
equal to the aggregated exercise price; provided, however, that such method
of payment is then permitted under applicable law; (vi) to the extent
permitted by applicable law by: (A) delivery of a promissory note of the
Optionee to the Company on terms determined by
the Board, or (B) payment of such other lawful consideration as the Board
may determine; or (vii) by any combination of the above permitted forms of
payment."
(b) Section 6 of Schedule A of the Option Agreement is hereby amended to
provide in its entirety as follows:
"6. Once a termination of employment or other service to the Company
occurs, all Options to which Optionee is then entitled to exercise may only
be exercised, if at all, in accordance with, and subject to, the terms and
provisions of the Plan, unless otherwise provided for in this Option
Agreement. Notwithstanding the forgoing, if the Company terminates the
employment of Optionee or other service relationship between Optionee and
the Company for any reason other than for Cause, this Option may be
exercised at any time prior to two years after such termination and before
the date this Option terminates."
(c) Schedule A of the Option Agreement is hereby amended to include a new
Section 7 which provides in its entirety as follows:
"7. The last two sentences of Section 12(c)(2)(a) of the Plan shall not
apply to this Option."
2. MISCELLANEOUS.
(a) This Agreement is binding upon the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(b) This Agreement will be governed and interpreted in accordance with
the laws of the State of Colorado, and may be executed in more than one
counterpart, each of which shall constitute an original document.
(c) No alterations, amendments, changes or additions to this agreement
will be binding upon either the Company on or Optionee unless reduced to writing
and signed by both parties.
(d) Capitalized terms used within this Amendment unless otherwise
defined, shall have the meaning ascribed thereto in the Plan or the Option
Agreement.
(e) Nothing contained herein shall be construed as a guarantee of
continued employment of Optionee for any specific duration of time.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of this ___
day of June 2006.
STELLAR TECHNOLOGIES, INC.
By:
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Authorized Executive Officer
OPTIONEE
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Signature
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Print Name
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