NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.1
NEITHER THE SECURITIES REPRESENTED BY THIS AGREEMENT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “1933 ACT”) OR THE SECURITIES LAWS OF ANY STATE. NEITHER THE SECURITIES REPRESENTED HEREBY MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED NOR MAY THE SHARES BE ISSUED UPON EXERCISE UNLESS SUCH SECURITIES AND SHARES ARE REGISTERED UNDER THE 1933 ACT AND APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH SALE, TRANSFER, PLEDGE OR ISSUANCE IS EXEMPT FROM REGISTRATION.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the “Agreement”), is made as of the of by and between UTEK CORORATION, a Delaware corporation (the “Company”), and (“Optionee”).
R E C I T A L
Pursuant to the 2000 Non-Qualified Stock Option Plan, effective February 2000, as amended (the “Plan”) of the Company, the Board of Directors of the Company or a committee to which administration of the Plan is delegated by the Board of Directors (in either case, the “Administrator”) has authorized the granting to Optionee of a non-qualified stock option to purchase the number of shares of Common Stock of the Company specified in Section 1 hereof, at the price specified therein, such option to be for the term and upon the terms and conditions hereinafter stated.
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and of the undertakings of the parties hereto contained herein, it is hereby agreed:
1. Number of Shares; Option Price. Pursuant to said action of the Administrator, the Company hereby grants to Optionee the option (“Option”) to purchase, upon and subject to the terms and conditions of the Plan, shares of Common Stock of the Company (“Shares”) at the closing price on the issuance/grant date of this Agreement $ per share (“Exercise Price”).
2. Term. This Option shall expire on the day before the fifth anniversary of the date hereof (the “Expiration Date”) unless such Option shall have been terminated prior to that date in accordance with the provisions of the Plan or this Agreement. The term “Affiliate” as used herein shall have the meaning as defined in the Plan.
3. Options Subject to Exercise. The options granted shall vest twenty five percent (25%) immediately, twenty five percent (25%) on the first anniversary date hereof, twenty five percent (25%) on the second anniversary date hereof, and the balance on the third anniversary date hereof. All options having vested shall thereafter remain subject to exercise with the term specified in Paragraph 2. Notwithstanding any provision to the contrary, if Optionee’s employment or other Agreement is terminated (i) by the Company the vesting of all shares shall be prorated and this Option shall become exercisable with respect to those shares that have vested, as provided in Section 6 hereof. In the event of either (i) above, Optionee’s sole remedy under this Agreement shall be the right to purchase the Shares as provided in this Agreement.
4. Method and Time of Exercise. The Option may be exercised, in whole or in part, by written notice delivered to the Company at its principal executive office stating the number of shares with respect to which the Option is being exercised, together with, this Option and a check or money order made payable to the Company in the amount equal to the Exercise Price multiplied by the number of shares with respect to which the Option is being exercised, and any withholding tax, as provided under Section 5 hereof;
Upon exercise by Optionee of less than all of this Option prior to the Expiration Date, the Company shall issue a like Option for the number of Shares then remaining issuable upon exercise of this Option. Not less than 100 shares may be purchased at any one time unless the number purchased is the total number purchasable under such Option at the time. Only whole shares may be purchased.
5. Tax Withholding. As a condition to exercise of this Option, the Company may require Optionee to pay over to the Company all applicable federal, state and local taxes which the Company is required to withhold with respect to the exercise of this Option.
6. Exercise After Termination of Employment. The following rules shall apply in the event of Optionee’s termination of employment with the Company:
(A) In the event of Optionee’s termination of employment with the Company prior to the end of the employment term of the Employment Agreement (i) by the Company for Cause as defined in the Employment Agreement, or (ii) by Optionee other than pursuant to Section 9(b) under the Employment Agreement, then the Option shall immediately terminate.
(B) In the event of Optionee’s termination of employment with the Company other than as a result of the events specified in Section 6(A), above, or the death or permanent and total disability of Optionee (as defined in the Employment Agreement), this Option (to the extent then exercisable) may be exercised, in whole or in part, at any time on or before the Expiration Date.
For purposes of this Section 6, “employment” includes service as a director or as a consultant. For purposes of this Section 6, Optionee’s employment shall not be deemed to terminate by reason of sick leave, military leave or other leave of absence approved by the Administrator, if the period of any such leave does not exceed 90 days or, if longer, if Optionee’s right to reemployment by the Company or any Affiliate is guaranteed either contractually or by statute.
7. Nontransferability. This Option may not be assigned or transferred except by will, qualified domestic relations order or by the laws of descent and distribution, and may be exercised only by Optionee during his lifetime and after his death, by his personal representative or by the person entitled thereto under his will or the laws of intestate succession.
8. Optionee Not a Shareholder. Optionee shall have no rights as a shareholder with respect to the Common Stock of the Company covered by this Option until the date of issuance of a stock certificate or stock certificates to him upon exercise of this Option. No adjustment will be made for dividends or other rights for which the record date is prior to the date such stock certificate or certificates are issued.
9. No Right to Employment. Nothing in the Option granted hereby shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate Optionee’s employment or consulting at any time, nor confer upon Optionee any right to continue in the employ of, or consult with, the Company or any of its Affiliates.
10. Modification and Termination. The rights of Optionee are subject to modification and termination in certain events as provided in Sections 6.1 and 6.2 of the Plan.
11. Restrictions on Sale of Shares. Optionee represents and agrees that upon her exercise of this Option, in whole or in part, unless there is in effect at that time under the Securities Act of 1933 a registration statement relating to the Shares issued to her, she will acquire the Shares issuable upon exercise of this Option for the purpose of investment and not with a view to their resale or further distribution, and that upon such exercise thereof she will furnish to the Company a written statement to such effect, satisfactory to the Company in form and substance. Optionee agrees that any certificates issued upon exercise of this Option may bear a legend indicating that their transferability is restricted in accordance with applicable state and federal securities law. Any person or persons entitled to exercise this Option under the provisions of Sections 5 and 6 hereof shall, upon each exercise of this Option under circumstances in which Optionee would be required to furnish such a written statement, also furnish to the Company a written statement to the same effect, satisfactory to the Company in form and substance.
12. Plan Governs. This Agreement and the Option evidenced hereby are made and granted pursuant to the Plan and are in all respects limited by and subject to the express terms and provisions of the Plan, as it may be construed by the Administrator. Optionee hereby acknowledges receipt of a copy of the Plan.
13. Notices. All notices to the Company shall be addressed to the Chief Financial Officer at the principal executive office of the Company, and all notices to Optionee shall be addressed to Optionee at the address of Optionee on file with the Company or its subsidiary, or to such other address as either may designate to the other in writing. A notice shall be deemed to be duly given if and when enclosed in a properly addressed sealed envelope deposited, postage prepaid, with the United States Postal Service. In lieu of giving notice by mail as aforesaid, written notices under this Agreement may be given by personal delivery to Optionee or to the Chief Financial Officer (as the case may be).
14. Sale or Other Disposition. If Optionee at any time contemplates the disposition (whether by sale, gift, exchange, or other form or transfer) of any Shares acquired by exercise of this Option, he or she shall first notify the Company in writing of such proposed disposition and cooperate with the Company in complying with all applicable requirements of law, which, in the judgment of the Company, must be satisfied prior to such disposition.
15. 40 Act Compliance. Notwithstanding the foregoing, for as long as the Company is a registered business development company under the Investment Company Act of 1940, as amended (1940) this option shall comply with the provisions of the 1940 Act, and any provision of this Agreement not in compliance with the 1940 Act will be considered null and void.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
| UTEK CORPORATION | ||||
| By : |
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| Xxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| OPTIONEE | ||||
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| Xxxxx Xxxxxx Xxxxxxxx | ||||
