Exhibit 10.6
MTM TECHNOLOGIES, INC.
2004 EQUITY INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
MTM Technologies, Inc., a New York corporation formerly known as
Micros-to-Mainframes, Inc. (the "Company"), pursuant to the
Micros-to-Mainframes, Inc. 2004 Equity Incentive Plan (the "Plan"), has granted
to Xxxxxx X. Xxxxx (the "Optionee") a stock option (the "Option") to purchase a
total of 92,000 shares (the "Shares") of the common stock, par value $.001 per
share (the "Common Stock"), of the Company, at the exercise price of $5.22 per
Share (the "Exercise Price"), on the terms and conditions set forth herein and,
in all respects, subject to the terms and conditions of the Plan. The date of
grant of the Option is December 10, 2004 (the "Date of Grant"). The Option is
intended to be an incentive stock option ("ISO") within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"); provided,
however, to the extent that the aggregate fair market value of the Common Stock
with respect to which ISO's are exercisable for the first time by Optionee
during any calendar year under all plans of the Company and its Parent and all
subsidiaries exceed $100,000, only that portion of the Option in excess of such
$100,000 limitation shall be treated as an option that does not qualify as an
ISO under the Code. Unless otherwise defined herein, capitalized terms defined
in the Plan shall have the same defined meanings herein.
1. DURATION.
Subject to the earlier termination as provided herein or under the Plan,
the Option shall expire at the close of business on December 10, 2014.
2. WRITTEN NOTICE OF EXERCISE.
The Option may be exercised only by delivery to the General Counsel or
Secretary of the Company, the Company's principal executive offices, of a
written notice of exercise substantially in the form described in section 8
hereof.
3. ANTI-DILUTION PROVISIONS.
(a) If there is any stock dividend, stock split, or combination of shares
of Common Stock, the number and amount of Shares then subject to the Option
shall be proportionately and appropriately adjusted as determined by the
Committee, whose determination shall be final, conclusive and binding upon
Optionee and the Company.
(b) If there is any other change in the Common Stock, including a
recapitalization, reorganization, sale or exchange of assets, exchange of
shares, offering of subscription rights, or a merger or consolidation, whether
or not the Company is the surviving corporation, an adjustment, if any, shall be
made in the Shares then subject to the Option as the Board or Committee may deem
equitable, and whose determination shall be final, conclusive and binding upon
Optionee and the Company. Failure of the Board or the Committee to provide for
an adjustment pursuant to this subparagraph prior to the effective date of any
Company action referred to herein shall be conclusive evidence that no
adjustment is required in consequence of such action.
4. INVESTMENT REPRESENTATION AND LEGEND CERTIFICATES.
Optionee acknowledges and agrees that, for any period in which a
registration statement with respect to the Option and/or Shares under the
Securities Act, is not effective, Optionee shall hold the Option and will
purchase and/or own the Shares for investment and not for resale or
distribution. The Company shall have the right to place upon the face and/or
reverse side of any stock certificate or certificates evidencing the Shares such
legend as the Committee may prescribe for the purpose of preventing disposition
of such Shares in violation of the Securities Act.
5. NON-TRANSFERABILITY.
The Option shall not be transferable by Optionee other than by will or by
the laws of descent or distribution, and is exercisable during the lifetime of
Optionee only by Optionee. The terms of this agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of Optionee.
6. CERTAIN RIGHTS NOT CONFERRED BY OPTION.
Optionee shall not, by virtue of holding the Option, be entitled to any
rights of a shareholder in the Company.
7. EXPENSES.
The Company shall pay all original issue and transfer taxes with respect to
the issuance of the Shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith.
8. EXERCISE OF OPTIONS.
(a) The Option shall become exercisable as follows:
(i) On the first anniversary of the Date of Xxxxx, the Option shall
become exercisable to the extent of 23,000 Shares;
(ii) On the second anniversary of the Date of Grant, the Option shall
become exercisable to the extent of 23,000 Shares (in addition to any
Shares made exercisable pursuant to subparagraph (a)(i) of this section 8);
(iii) On the third anniversary of the Date of Xxxxx, the Option shall
become exercisable to the extent of 23,000 Shares (in addition to any
Shares made exercisable pursuant to subparagraphs (a)(i) and (a)(ii) of
this Section 8); and
(iv) On the fourth anniversary of the Date of Xxxxx, the Option shall
become exercisable to the extent of 23,000 Shares (in addition to any
Shares made exercisable pursuant to subparagraphs (a)(i), (a)(ii) and
(a)(iii) of this section 8).
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(b) Notwithstanding the exercisability schedule set forth in paragraph (a)
of this section 8, the Option shall become fully exercisable following the event
of either (i) the termination of Optionee's employment by the Company (including
for the purposes of this section 8(b) MTM Texas (as defined below)) for any
reason other than termination by the Company for "Cause" or (ii) termination of
Optionee's employment by Optionee for "Good Reason" as such terms are defined in
the Employment Agreement, dated December 10, 2004 (the "Employment Agreement"),
between MTM Technologies (Texas), Inc. ("MTM Texas") and Optionee; provided that
in either such event the Option shall remain exercisable until the earlier to
occur with (x) one (1) year following such termination or (y) the Expiration
Date. If, as a result of such a termination of employment event and to the
extent applicable under the Code, the Option no longer qualifies as an ISO, the
Option (or such applicable portion) shall be treated as an option that does not
qualify as an ISO under the Code.
(c) The Option shall be exercisable, in whole or part and from time to
time, by written notice of such exercise, delivered to the General Counsel or
Secretary of the Company, at the Company's principal office by personal
delivery, against written receipt therefor, or by pre-paid, certified or
registered mail, return receipt requested. Such notice shall specify the number
of Shares for which the Option is being exercised (which number, if less than
all of the Shares then subject to exercise, shall be fifty (50) or an integral
multiple thereof) and shall be accompanied by payment of the full exercise price
for the Shares for which the Option is being exercised.
(d) The form of payment of the Exercise Price for Shares purchased pursuant
to the Option shall consist of (i) cash, (ii) check (subject to collection),
(iii) by any of the methods enumerated in paragraphs (a), (b), (d) and/or (e) of
section 10.1 of the Plan or (iv) any combination of such methods of payment.
(e) No Shares shall be delivered upon exercise of the Option until all
laws, rules and regulations which the Committee may deem applicable have been
complied with. If a registration statement under the Securities Act is not then
in effect with respect to the shares issuable upon such exercise, the Company
may require as a condition precedent that Optionee, upon exercising the Option,
deliver to the Company a written representation and undertaking, satisfactory in
form and substance to the Committee, that, among other things, Optionee is
acquiring the shares for her own account for investment and not with a view to
the distribution thereof.
(f) Optionee shall not be considered a record holder of the Shares so
purchased for any purpose until the date on which Optionee is actually recorded
as the holder of such Shares in the records of the Company.
(g) In the event of (x) Optionee's termination for "cause" (as defined in
the Employment Agreement), (y) Optionee's voluntary termination of Optionee's
employment with the Company other than for "Good Reason" (as defined in the
Employment Agreement), or (z) Optionee's death or Disability, the exercisability
of the Option shall be subject to the provisions of section 5.7 of the Plan.
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9. ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE PLAN.
The acceptance by Optionee of this Stock Option Award Agreement and the
Option shall constitute the acceptance of and agreement to all of the terms and
conditions contained herein and in the Plan.
10. CONTINUED EMPLOYMENT.
Nothing herein shall be deemed to create any employment or guaranty of
continued employment or limit in any way the Company's right to terminate
Optionee's employment at any time.
11. EARLY DISPOSITION OF STOCK.
Optionee understands that if Optionee disposes of any Shares received under
the Option within two years after the Date of Grant or within one year after
such Shares were transferred to Optionee, Optionee may be treated for federal
and state income tax purposes as having received ordinary income at the time of
such disposition as determined in accordance with the Code and applicable state
law. Optionee hereby agrees to notify the Company in writing within thirty days
after the date of any such disposition. Optionee authorizes the Company to
withhold tax from Optionee's current compensation with respect to any income
recognized as a result of any such disposition.
MTM TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
OPTIONEE ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS STOCK OPTION AWARD
AGREEMENT, NOR IN THE PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL
CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT BY THE
COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and certain information
related thereto and represents that Optionee is familiar with the terms and
provisions thereof, and hereby accepts the Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this agreement and fully understands all of the terms and provisions
of the Option and this agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon any
questions rising under the Plan. Optionee further agrees to notify the Company
upon any change in the residence address indicated below.
further agrees to notify the Company upon any change in the residence
address indicated below.
Accepted and agreed as of the Date of Grant:
By: /s/ Xxxxxx X. Xxxxx
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Name:
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Address:
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