EXHIBIT 10.10
TAKE TO XXXXXXX.XXX, INC.
1999 STOCK OPTION PLAN
NON-STATUTORY STOCK OPTION AGREEMENT
-------------------------
This agreement ("Agreement") by and between Take To Xxxxxxx.Xxx, Inc.,
a Florida corporation (the "Company"), and _____________ (the "Optionee")
currently residing at _____________________________, is entered into as of this
___ day of ______________, ______ (the "Grant Date"). Under this Agreement, the
Company grants an option (the "Option") to the Optionee to purchase a total of
___________________________ (_______) shares (the "Shares") of Common Stock, par
value $.001 per share of the Company (the "Common Stock") at the exercise price
determined as provided herein, pursuant to the Take To Xxxxxxx.Xxx, Inc. 1999
Stock Option Plan (the "Plan") adopted by the Company, which is incorporated
herein by reference. The Optionee hereby acknowledges receipt of the Plan and
agrees to be bound by all of the terms and conditions thereof. Capitalized terms
used but not otherwise defined herein shall have the same meanings as provided
in the Plan.
1. Nature of the Option. This Option is a Non-Statutory Stock Option
and is not intended to constitute an "incentive stock option" as that term is
used in Code Section 422.
2. Exercise Schedule. Except as otherwise provided herein or in the
Plan, this Option shall be exercisable in accordance with Section 6 in whole or
in part and cumulatively according to the following schedule:
(a) _____________ shares of Common Stock shall vest one year
after the signing of this Agreement.
(b) _____________ shares of Common Stock shall vest two years
after the signing of this Agreement.
(c) _____________ shares of Common Stock shall vest three
years after the signing of this Agreement.
provided, however, that in no event shall the Option be exercisable after the
expiration of 7 years from the Grant Date. Notwithstanding any other provision
herein, each increment of this Option set forth in the schedule above shall vest
and become exercisable by the Optionee if and only if the Optionee is in the
employ of the Company on the relevant date or dates indicated above.
3. Change of Control; Acceleration of Vesting. In the event of a Change
of Control this Option may, at the sole discretion of the Committee: (a) become
immediately vested and exercisable in full; or (b) be converted into an option
or similar equity security of the surviving or successor company having, as
similar as possible or better, the rights, value, terms and characteristics of
this Option, or (c) terminate immediately prior to the consummation of such
proposed action; provided, that if the Option is then exercisable, the Optionee
shall have received written notice within a reasonable time prior to the
consummation of such action advising the Optionee of (i) any of the foregoing
and (ii) that the Optionee has the opportunity to exercise his Option during
such period. The Committee may, in the exercise of its sole discretion, in such
instances declare that this Option shall terminate as of a date fixed by the
Board and give the Optionee the right to exercise his or her Option.
4. Exercise Price. The exercise price of the Shares subject to this
Option is $___ for each Share.
5. Termination of Option Period.
(a) The unexercised portion of this Option shall automatically
and without notice terminate and become unexercisable at the time of the
earliest to occur of the following:
(i) one year after the date on which the Optionee's
employment or service with the Company or a Subsidiary is terminated for any
reason, including, but not limited to a Disability, other than by reason of (A)
Cause, (B) voluntary termination of employment by the Optionee, or (C) the
Optionee's death;
(ii) immediately upon the termination by the Company
or any Subsidiary of the Optionee's employment or service for Cause;
(iii) ninety days after the voluntary termination of
employment or service with the Company or any Subsidiary by the Optionee;
(iv) one year after the date of the Optionee's death;
provided, that if the Optionee shall die after terminating employment or service
by reason of Disability, the unexercised portion of any Option may be
exercisable only until the later to occur of one year following the Optionee's
termination of employment or service, or one month following the Optionee's
death.
(b) The Committee in its sole discretion may, by giving
written notice ("cancellation notice") to the Optionee, cancel, effective upon
the date of the consummation of any Change of Control, any Option that remains
unexercised on such date. Such cancellation notice shall be given within a
reasonable period of time prior to the proposed date of such cancellation and
may be given either before or after approval of such corporate transaction.
(c) Upon termination of an Option pursuant to the foregoing
provisions of this Section 5, any Option (or portion thereof) not previously
exercised pursuant to Section 7 hereof shall be canceled.
6. Transferability of Options.
(a) This Option is not subject to alienation, assignment,
pledge, charge or other transfer other than by the Optionee by will or by the
laws of descent and distribution and any attempt to make such a prohibited
transfer shall be void. Notwithstanding, the Committee hereby permits the
Optionee to transfer this Non Statutory Stock Option to a family member or trust
for the benefit of a family member, provided such transfer does not violate the
requirements of Rule 16-3. The Option shall be exercisable during the Optionee's
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lifetime only by the Optionee or, in the event this Non Statutory Stock Option
has been assigned or otherwise transferred, only by such assignee.
(b) Provided the transaction does not violate the requirements
of Rule 16b-3, no Shares acquired by an Officer or Director, as these terms are
defined under Rule 16b-3, pursuant to the exercise of an Option may be sold,
assigned, pledged or otherwise transferred prior to the expiration of the
six-month period following the Grant Date.
7. Exercise of Options.
(a) The Optionee shall exercise the Option in whole or in part
by filing a written notice in the form of an "Exercise Letter" (attached hereto
as Exhibit 1) with the Secretary of the Company at its corporate headquarters.
The Exercise Letter shall specify the number of Shares that the Optionee elects
to purchase, and shall be accompanied by payment of the exercise price for such
Shares as indicated in the Exercise Letter.
(b) The exercise price of the Option may be paid in cash, by
certified or official bank check, by personal check (with the approval of the
Committee), by money order, with Shares owned by the Optionee that have been
owned by the Optionee for more than 6 months on the date of surrender or such
other period as may be required to avoid a charge to the Company's earnings for
financial accounting purposes, by authorization for the Company to withhold
Shares issuable upon exercise of the Option, by arrangement with a broker that
is acceptable to the Committee where payment of the exercise price is made
pursuant to an irrevocable direction to the broker to deliver all or a part of
the proceeds from the sale of the Option Shares to the Company in payment of the
exercise price or by a combination of the above, or by promissory note. If the
exercise price is paid in whole or in part with Shares, the value of the Shares
surrendered shall be their Fair Market Value on the date the Exercise Letter is
filed with the Company.
(c) The Optionee shall not be deemed to be a holder of any
Shares subject to an Option unless and until a stock certificate or certificates
for such Shares are issued to the Optionee under the terms of this Option and
the Plan (as evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company). Until the issuance of the
stock certificate evidencing the shares as to which an Option has been
exercised, no right to vote or to receive dividends or any other rights as a
shareholder shall exist with respect to shares of Common Stock subject to an
Option. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued,
notwithstanding the exercise of such Option, except as expressly provided in
Section 10 hereof.
8. Restrictions on Exercise. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
Federal and State laws pertaining to the issuance of securities. If the Company
reaches such a determination, it shall use all reasonable efforts to obtain
compliance to such laws, rules or regulations. In making any determination
hereunder, the Company may rely on the opinion of counsel for the Company. As a
condition to the exercise of this Option, the Company may require the Optionee
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to make any representation and warranty to the Company as may be required by any
applicable law or regulation.
9. Death of Optionee. Upon the death of Optionee this Option may be
exercised by the executor or administrator of the Optionee's estate or by a
person who acquired the right to exercise this Option by bequest or inheritance,
but only to the extent of the right to exercise that had accrued at the date of
death and only for such period of time as shall be permitted pursuant to Section
5(a) hereof, and subject to all of the restrictions contained in this Agreement
and the Plan.
10. Adjustment of Shares.
(a) Subject to any required action by the shareholders of the
Company, the number of Shares covered by this Option, and the aggregate number
of Shares which have been authorized for issuance hereunder, as well as the
exercise price per share of Common Stock covered by this Option, shall be
appropriately adjusted for any increase or decrease in the number of issued and
outstanding shares of Common Stock resulting from a stock dividend or through
any recapitalization, reclassification, stock split-up, combination or exchange
of Common Stock (other than any such exchange or issuance of Common Stock
through which Common Stock is issued to effect an acquisition of another
business or entity or the Company's purchase of Common Stock to exercise a
"call" purchase option). Such adjustments shall be made by the Committee, whose
determination in this respect shall be final, binding and conclusive.
(b) The Committee may change the terms of Options outstanding
under the Plan, with respect to the exercise price or the number of Shares
subject to this Option, or both, when, in the Committee's sole judgment and
discretion, such adjustments become appropriate by reason of a Change of
Control.
(c) Except as expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into or exchangeable for shares of its capital stock of any class, either in
connection with a direct or underwritten sale or upon the exercise of rights or
warrants to subscribe therefor or purchase such shares, or upon conversion of
shares or obligations of the Company convertible into such shares or securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or exercise price of Shares subject to this Option.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate: (i)
any or all adjustments, recapitalizations, reclassifications, reorganizations or
other changes in the Company's capital structure or its business; (ii) any
merger or consolidation of the Company or to which the Company is a party; (iii)
any issuance by the Company of debt securities, or preferred or preference
stock, that would rank senior to or above the Shares subject to outstanding
Options; (iv) any purchase or issuance by the Company of Shares or other classes
of common stock or common equity securities; (v) the dissolution or liquidation
of the Company; (vi) any sale, transfer, encumbrance, pledge or assignment of
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all or any part of the assets or business of the Company; or (vii) any other
corporate act or proceeding, whether of a similar character or otherwise.
(e) The Optionee shall receive written notice within a
reasonable time prior to the consummation of such action advising the Optionee
of any of the foregoing. The Committee may, in the exercise of its sole
discretion, in such instances declare that any Option shall terminate as of a
date fixed by the Board and give each Optionee the right to exercise her or his
Option.
11. Issuance of Shares.
(a) Notwithstanding any other provision of this Plan, the
Company shall not be obligated to issue any Shares unless it is advised by
counsel of its selection that it may do so without violation of the applicable
Federal and State laws pertaining to the issuance of securities, and may require
any stock so issued to bear a legend, may give its transfer agent instructions,
and may take such other steps, as in its judgment are reasonably required to
prevent any such violation.
(b) As a condition of any sale or issuance of Shares upon
exercise of any Option, the Committee may require such agreements or
undertakings, if any, as the Committee may deem necessary or advisable to assure
compliance with any law, regulation, agreement or other applicable restriction,
including, but not limited to, the following:
(i) a representation and warranty by the Optionee to
the Company, at the time any Option is exercised, that he is acquiring the
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(ii) an agreement and undertaking to comply with all
of the terms, restrictions and provisions set forth in any then applicable
shareholders' agreement relating to the Shares, including without limitation any
restrictions on transferability, any rights of first refusal and any option of
the Company to "call" or purchase such Shares under then applicable agreements,
and (B) any restrictive legend or legends, to be embossed or imprinted on Share
certificates, that are, in the discretion of the Committee, necessary or
appropriate to comply with the provisions of any securities law or other
restriction applicable to the issuance of the Shares.
12. Redemption of Shares by the Corporation.
(a) Right to Redeem. Subject to any restrictions under
applicable corporate or other laws, and notwithstanding any other provisions to
the contrary, and in addition to the rights of the Company contained in Section
5 hereof, the Company shall have the right to redeem any Shares issued to the
Optionee pursuant to the exercise by such Optionee of the Option granted to him
hereunder immediately upon the termination of Optionee's employment or services
arising from: (i) a Disability; (ii) the death of the Optionee; (iii) the
voluntary termination of employment or services of the Optionee; or (iv) the
termination of employment or services of the Optionee for Cause (each an "Event
of Redemption").
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(b) Redemption Price.
(i) Subject to clause (ii) below, the purchase price
(the "Redemption Price"), to be paid by the Company to the Optionee at the
Redemption Closing (as defined below) for the Shares of the Optionee upon the
occurrence of an Event of Redemption pursuant Section 12(a)(i)-(iii), shall be
the Fair Market Value of the Shares on the date of the Event of Redemption as
determined in accordance with Section 2(n) of the Plan.
(ii) In the event that the Corporation's right to
redeem pursuant to Section 12(a) above occurs as a result of the termination of
employment or services of the Optionee for Cause, as set forth in Section
12(a)(iv) hereof, the Optionee shall not be entitled to receive any compensation
for his Shares, and the Optionee shall immediately surrender the Shares to the
Company without payment of any further compensation for the Shares.
(c) Redemption Closing. The closing (the "Redemption Closing")
shall take place no later than thirty (30) days after the date of the occurrence
of the Redemption Event. At the Redemption Closing: (i) the Optionee shall
deliver to the Company the share certificate or certificates evidencing the
ownership of the Shares together with duly executed stock powers endorsed in
blank and such other documents as the Company shall require; and (ii) the
Company shall pay to the Optionee the Redemption Price (if any) by wire
transfer, certified check or, in the Company's sole discretion, by delivery of a
promissory note to the Optionee in the principal amount of the Redemption Price
and payable on such terms as the Company may deem appropriate.
13. Withholding. In the event the Company determines that it is
required to withhold Federal, state, or local taxes in connection with the
purchase or disposition of Shares, the Optionee or any person succeeding to the
rights of the Optionee, as a condition to such exercise or disposition, may be
required to make arrangements satisfactory to the Company to enable it to
satisfy no more than the statutory minimum of such withholding requirements.
14. Miscellaneous.
(a) If any provision of this Agreement should be held invalid
for the granting of Options or illegal for any reason, such determination shall
not affect the remaining provisions hereof, but instead this Agreement shall be
construed and enforced as if such provision had never been included in this
Agreement.
(b) This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
(c) Headings contained in this Agreement are for convenience
only and shall in no manner be construed as part of this Agreement.
(d) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
(e) Neither the Plan nor any Option granted pursuant thereto
shall be construed to give any person the right to remain in the employ or
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service of the Company or any Affiliate, or to affect the right of the Company
or any Affiliate to terminate such individual's employment or service at any
time with or without cause. The grant of an Option shall not entitle the
Optionee to, or disqualify the Optionee from, participation in the grant of any
other Option under the Plan or participation in any other benefit plan
maintained by the Company or any Affiliate.
(f) This Agreement shall be binding upon the Company's
successors and assigns and shall inure to the benefit of any representative,
executor, administrator, heir or legatee of the Optionee.
15. Acknowledgment. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon any
questions arising under the Plan or this Agreement.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
TAKE TO XXXXXXX.XXX, INC.
By:_____________________________
-------------, -------------
Accepted and Agreed to on the
date first above written.
OPTIONEE
-------------------------------
-------------
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Exhibit 1
TAKE TO XXXXXXX.XXX, INC.
1999 STOCK OPTION PLAN
Election to Exercise Stock Option
---------------------------------
To:
From:
Date:
Pursuant to the provisions of my Option Agreement (the "Agreement")
issued under the Take To Xxxxxxx.Xxx, Inc. 1999 Stock Option Plan (the "Plan")
with the grant date of _______________ [insert Grant Date], I hereby elect to
exercise on the exercise date indicated below the option evidenced by that
Agreement (the "Option") with respect to ___________ [insert number] Shares of
Take To Xxxxxxx.Xxx, Inc. (the "Option Shares"). I agree to purchase the Option
Shares at the price and terms established under the Agreement and the Plan. I am
attaching $_____________ (__________ U.S. Dollars) as payment in full of the
exercise price of the Option Shares in the form of cash, bank check, certified
check or personal check (with the consent of the Committee) [circle one].
I hereby represent that I am acquiring the Option Shares for my own
account for investment and that I have no present intention of distributing or
otherwise disposing of any such shares in violation of the Securities Act of
1933, as amended (the "Securities Act"). I understand that no delivery of the
Option Shares will be made to me until the Committee has determined that such
delivery complies with applicable federal and state securities laws.
I also recognize that such shares constitute "restricted securities"
under the Securities Act and have not been registered under the Securities Act
or any applicable state securities laws, that the certificate will contain a
legend restricting their transfer, that the transfer agent for Take To
Xxxxxxx.Xxx, Inc. (the "Company") will be instructed not to effectuate a
transfer without written authorization from the Company and that the Option
Shares may not be transferred or sold unless they are subsequently registered or
an exemption from such registration is available. I understand that the Company
is under no obligation to register the Option Shares.
I am aware of the Company's business affairs and financial condition
and have acquired sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the Option Shares. I acknowledge that I
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have received from the Company a copy of the Plan and a copy of the Agreement. I
have substantial knowledge and experience in financial and business matters so
that I am capable of evaluating the merits and risks of acquiring the Option
Shares and have the capacity to protect my own interests.
[I am an accredited investor within the meaning of Rule 501 of
Regulation D under the Securities Act.]
I further understand that pursuant to the Agreement the Option Shares
are subject to additional restrictions regarding transfer and resale and Company
repurchase rights.
I hereby warrant that I am entitled under the Agreement and the Plan to
purchase the Option Shares which I have agreed to purchase herein.
I further understand that the Company may refrain from delivering or
transferring the Option Shares until the Committee has determined that I have
made payment in full of the Purchase Price for all Option Shares designated in
this document (e.g., my check has cleared, if payment is made by personal check)
and I have tendered to the Company (or, if applicable, an affiliate of the
Company) cash or other consideration acceptable to the Committee which is
sufficient to pay any federal, state or local taxes that the Committee
determines the Company (or, if applicable, an affiliate of the Company) is
required to withhold as a result of my exercise of the Option and that the
Company (or, if applicable, an affiliate of the Company) has the right to deduct
from cash payments otherwise due to me any such tax.
____________________________________
(signature)
Exercise Date:______________________
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SCHEDULE 1
Optionee Position Options Exercise Price Grant Date
Xxxxxx Xxxxxxxx CEO/Pres 75,000 0.41 08/26/1999
Xxxxxxxx Xxxxxx CFO 145,408 0.41 08/26/1999
Xxxxxxxx Xxxxxx CFO 29,592 11.00 01/31/2000
Xxxxxxxx Xxxxxx CTO 162,857 0.41 10/01/1999
Xxxxxxxx Xxxxxx CTO 12,143 11.00 01/31/2000
Xxxx Xxxxxx Chairman 270,000 11.00 01/31/2000
Xxxxxxx Xxxxxxxx Vice-Chairman 45,000 0.41 08/26/1999
Xxxxxxxx Xxxxx Controller 30,000 7.00 01/18/2000
Xxxxx Xxxxxxxx MIS 15,000 8.00 01/04/2000
Xxxx Xxxxxxxx MIS 10,000 11.00 01/25/2000
Xxxxx Xxxxx MIS 10,000 11.00 01/25/2000
Xxxxxxx Xxxxxxxxx MIS 10,000 11.00 01/25/2000
------------------
815,000
==================
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