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Exhibit 10.12
FORM OF
STOCK OPTION GRANT
This Stock Option Grant (the "Option Grant") is entered into this ___
day of _______, 2000, by and between PODS, INC., a Florida corporation
("Company") and _______________________ ("Optionee").
RECITALS
A. Company has determined that it is in its best interests to arrange
to borrow $500,000 (the "Loan") from First National Bank of Florida (the
"Lender") and a requirement of such borrowing is that the Loan be personally
guaranteed by an individual acceptable to the Lender.
B. Optionee is a Member of PODS USA, LLC, which is a Shareholder of the
Company, is acceptable to the Lender, and has agreed to personally guarantee the
Loan.
C. In consideration of Optionee's agreement to grant his personal
guarantee of the Loan, it has been determined to be in the best interests of the
Company to pay a guarantee fee to Optionee in the form of the grant of an option
to acquire shares of stock of the Company, as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties, it is agreed as follows:
1. RECITALS; EXHIBITS. The above Recitals set forth above are true and
correct and incorporated herein by reference. Any Exhibits referred to herein or
attached hereto are incorporated into this Agreement by this reference.
2. NOTICE OF STOCK OPTION GRANT. The undersigned Optionee is hereby
granted an Option to purchase Common Stock of the Company, subject to the terms
and conditions of this Option Grant, as follows:
Optionee:
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Date of Grant:
, 2000
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Exercise Price per Share: $1.00
Total Number of
Shares Granted:
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Type of Option: Non Statutory Stock Option
Stock Option Expiration Date: The Option shall terminate ten
(10) years following the date of this Option Grant (the "term").
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3. GRANT OF OPTION. The Company hereby grants to
__________________________, the Optionee named in the Notice of Grant, an option
(the "Option") to purchase the number of Shares (as defined in Section 11 below)
set forth in the Notice of Grant, at the exercise price per Share set forth in
the Notice of Grant (the "Exercise Price"), and subject to the terms and
conditions of this Option Grant.
4. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option shall be exercisable, in
whole or in part, during its term set out in the Notice of Grant, in accordance
with the applicable provisions of this Option Grant.
(b) METHOD OF EXERCISE. This Option shall be exercisable by
delivery of an exercise notice in the form attached as Exhibit "A" (the
"Exercise Notice") which shall state the election to exercise the Option, the
number of Shares with respect to which the Option is being exercised, and such
other representations and agreements as may be required by the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all Exercised Shares. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice accompanied by the
aggregate Exercise Price. No Shares shall be issued pursuant to the exercise of
an Option unless such issuance and such exercise complies with applicable laws.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
(b) RESTRICTIONS ON SHARES. Issuance of Shares upon the
exercise of Option shall be conditioned upon the Optionee entering into a
Joinder Agreement whereby the Optionee agrees to be bound by the terms and
conditions of any agreement that restricts the disposition of shares of stock of
the Company, including but not limited to the Stockholders' Agreement entered
into by and among the Company and all of its shareholders dated as of December
1, 1999.
5. OPTIONEE'S REPRESENTATIONS AT EXERCISE. In the event the Shares have
not been registered under the Securities Act of 1933, as amended, at the time
this Option is exercised, the Optionee shall, if required by the Company,
concurrently with the exercise of all or any portion of this Option, deliver to
the Company his or her Investment Representation Statement in the form attached
hereto as Exhibit "B."
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6. METHOD OF PAYMENT. Payment of the aggregate Exercise Price shall be:
(a) by cash or check; or
(b) in the sole discretion of the Company and upon request of
the Optionee, by either of the following, or a combination thereof: (1)
consideration received by the Company under a formal cashless exercise program
adopted by the Company; or (2) surrender of other Shares which, (i) in the case
of Shares acquired upon exercise of an option, have been owned by the Optionee
for more than six (6) months on the date of surrender, and (ii) have a Fair
Market Value on the date of surrender equal to the aggregate Exercise Price of
the Exercised Shares.
7. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
this Option Grant shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
8. OPTIONEE'S REPRESENTATIONS. In connection with the issuance of the
Option and the Optionee's grant of his personal guarantee of the Loan, the
Optionee represents to the Company the following:
(a) Optionee is currently a Member of PODS USA, LLC, which is
a shareholder of the Company, is fully aware of the Company's business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to grant the personal
guarantee and accept the Option Grant as a guarantee fee. The Optionee has had
an opportunity to carefully review the books and records of the Company and has
relied only on the information contained therein and information otherwise
provided in writing by an authorized representative of the Company. The Optionee
and/or his advisor(s) have had a reasonable opportunity to ask questions of and
receive answers from the Company, or a person or persons acting on behalf of the
Company, concerning the terms and conditions of the Loan, the Optionee's
personal guarantee and Option Grant, and to obtain additional information, to
the extent possessed or obtainable without unreasonable effort or expense,
necessary to verify the accuracy of the information. All such questions have
been answered to the full satisfaction of the Optionee. No oral representations
have been made or oral information furnished to the Optionee or his advisor(s)
in connection with the Loan, the Optionee's personal guarantee and the Option
Grant.
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(b) Optionee acknowledges that he or she is familiar with the
terms and provisions of this Option Grant and hereby accepts this Option subject
to all of the terms and provisions thereof. Optionee has reviewed this Option
Grant in its entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Option and fully understands all provisions of the
Option. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Company upon any questions arising under
this Option Grant. Optionee further agrees to notify the Company upon any change
in the residence address.
(c) Optionee acknowledges and understands that this Option and
the Shares that will be obtained upon exercise of the Option have not been
registered under the Securities Act of 1933, as amended (the "Securities Act")
in reliance upon a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of Optionee's investment intent as
expressed herein.
(d) Optionee is familiar with the provisions of Rule 701 and
Rule 144, each promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer
qualifies under Rule 701 at the time of the grant of the Option to the Optionee,
the exercise will be exempt from registration under the Securities Act.
Securities exempt under Rule 701 may be resold, subject to the satisfaction of
certain of the conditions specified by Rule 144, including: (1) the resale being
made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the
availability of certain public information about the Company, (3) the amount of
Securities being sold during any three month period not exceeding the
limitations specified in Rule 144(e), and (4) the timely filing of a Form 144,
if applicable. In the event that the Company does not qualify under Rule 701 at
the time of grant of the Option, then the Securities may be resold in certain
limited circumstances subject to the provisions of Rule 144, which requires the
resale to occur not less than one year after the later of the date the
Securities were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of Rule 144; and, in the case of
acquisition of the Securities by an affiliate, or by a non-affiliate who
subsequently holds the Securities less than two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of this paragraph.
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9. TAX CONSEQUENCES. TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
10. ENTIRE AGREEMENT; GOVERNING LAW. This Option Grant constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee. This agreement is governed by the internal substantive
laws but not the choice of law rules of Florida.
11. DEFINITIONS:
(a) "Share" means a share of the Common Stock of the Company,
adjusted in accordance with the following:
(i) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock
covered by each outstanding Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company. The conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Board of Directors of the Company, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option.
(ii) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Company shall notify
each Optionee as soon as practicable prior to the effective date of
such proposed transaction. The Company in its discretion may provide
for an Optionee to have the right to exercise his Option until fifteen
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(15) days prior to such transaction as to all of Shares as to which the
Option would be exercisable. In addition, the Company may provide that
any Company repurchase option applicable to any Shares purchased upon
exercise of an Option shall lapse as to all such Shares, provided the
proposed dissolution or liquidation takes place at the time and in the
manner contemplated. To the extent it has not been previously
exercised, an Option will terminate immediately prior to the
consummation of such proposed action.
(iii) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of all or substantially
all of the assets of the Company, each outstanding Option shall be
assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or
substitute for the Option, the Optionee shall have the right to
exercise the Option as to all of the Shares as to which it is
exercisable. The Company shall notify the Optionee in writing or
electronically that the Option shall be fully exercisable for a period
of fifteen (15) days after the date of such notice, and the Option
shall terminate upon the expiration of such period. For the purposes of
this paragraph, the Option shall be considered assumed if, following
the merger or sale of assets, the option or right confers the right to
purchase or receive, for each Share of Optioned Stock subject to the
Option immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities or property)
received in the merger or sale of assets by holders of Common Stock for
each Share held on the effective date of the transaction (and if
holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the
merger or sale of assets is not solely common stock of the successor
corporation or its Parent, the Company may, with the consent of the
successor corporation, provide for the consideration to be received
upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor
corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale
of assets.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Option
Grant as of the day and year first above written.
OPTIONEE: COMPANY:
PODS, INC.
By:
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Xxxxx X. Xxxxxxxx,
President
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STOCK OPTION EXERCISE NOTICE
TO: PODS, INC.
Attention: President
1. EXERCISE OF OPTION. Effective as of today, _____________________,
the undersigned ("Optionee") hereby elects to exercise Optionee's option to
purchase __________ shares of the Common Stock (the "Shares") of PODS, INC. (the
"Company") under and pursuant to the Stock Option Grant dated _______________
(the "Option Grant").
2. DELIVERY OF PAYMENT. Optionee herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Option Grant.
3. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Option Grant and agrees to abide by and be
bound by its terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares shall be issued to
the Optionee as soon as practicable after the Option is exercised. No adjustment
shall be made for a dividend or other right for which the record date is prior
to the date of issuance except as provided in the Option Grant.
5. TAX CONSULTATION. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. RESTRICTIVE LEGENDS AND STOP TRANSFER ORDERS.
(a) LEGENDS. Optionee understands and agrees that, unless
registered under the Securities Act of 1933, the Company shall cause the legends
set forth below or legends substantially equivalent thereto, to be placed upon
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any certificate(s) evidencing ownership of the Shares together with any other
legends that may be required by the Company or by state or federal securities
laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN
THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) STOP TRANSFER NOTICES. Optionee agrees that, in order to
ensure compliance with the restrictions referred to herein, unless registered
under the Securities Act of 1933, the Company may issue appropriate "stop
transfer" instructions to its transfer agent, if any, and that, if the Company
transfers its own securities, it may make appropriate notations to the same
effect in its own records.
(c) REFUSAL TO TRANSFER. The Company shall not be required (i)
to transfer on its books any Shares that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement or (ii) to treat as
owner of such Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Shares shall have been so
transferred.
(c) STOCKHOLDERS' AGREEMENT. Issuance of the Shares is
conditioned upon the Optionee simultaneously entering into a Joinder Agreement
whereby the Optionee agrees to be bound by the terms and conditions of any
agreement that restricts the disposition of shares of stock of the Company,
including but not limited to the Stockholders' Agreement entered into by and
among the Company and all of its shareholders dated as of December 1, 1999.
7. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Optionee and his or her heirs, executors, administrators, successors and
assigns.
8. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted to the Board of Directors of the Company which
shall review such dispute at its next regular meeting. The resolution of such a
dispute by the Board of Directors shall be final and binding on all parties.
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9. GOVERNING LAW SEVERABILITY. This Agreement is governed by the
internal substantive laws but not the choice of law rules of Florida.
10. ENTIRE AGREEMENT. The Option Grant is incorporated herein by
reference. This Agreement, the Option Grant and, unless registered under the
Securities Act of 1933, the Investment Representation Statement constitute the
entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee.
Submitted by: Accepted by:
OPTIONEE: COMPANY:
PODS, INC.
By:
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Xxxxx X. Xxxxxxxx,
President
Date: Date:
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INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: __________________________
COMPANY: PODS, INC.
SECURITY: ________ SHARES OF COMMON STOCK
AMOUNT: $______________
DATE: _______________
In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
(a) Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Optionee further understands that the Securities must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Optionee further
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acknowledges and understands that the Company is under no obligation to register
the Securities. Optionee understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel satisfactory to the Company, a legend prohibiting their
transfer without the consent of the Secretary of State of the State of Florida
and any other legend required under applicable state securities laws.
(c) Optionee is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions. Rule 701 provides that if the issuer qualifies under Rule
701 at the time of the grant of the Option to the Optionee, the exercise will be
exempt from registration under the Securities Act. If the Company is subject to
the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, the Securities exempt under Rule 701 may be resold, subject to the
satisfaction of certain of the conditions specified by Rule 144, including: (1)
the resale being made through a broker in an unsolicited "broker's transaction"
or in transactions directly with a market maker (as said term is defined under
the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the
availability of certain public information about the Company, (3) the amount of
Securities being sold during any three month period not exceeding the
limitations specified in Rule 144(e), and (4) the timely filing of a Form 144,
if applicable. In the event that the Company does not qualify under Rule 701 at
the time of grant of the Option, then the Securities may be resold in certain
limited circumstances subject to the provisions of Rule 144, which requires the
resale to occur not less than one year after the later of the date the
Securities were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of Rule 144; and, in the case of
acquisition of the Securities by an affiliate, or by a non-affiliate who
subsequently holds the Securities less than two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of this paragraph.
(d) Optionee further understands that in the event all of the
applicable requirements of Rule 701 or 144 are not satisfied, registration under
the Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 144 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk. Optionee understands that no assurances can be given that any
such other registration exemption will be available in such event.
OPTIONEE:
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