Exhibit 4.7
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS STOCK OPTION AGREEMENT (the "Agreement") is entered into as of the
______ day of _______, 200__ between UltraStrip Systems, Inc. (the "Company")
and ___________ (the "Optionee").
WHEREAS, by action taken by the board of directors (the "Board") of the
Company, it has adopted the 2003 Stock Option Plan for Outside Directors and
Advisory Board Members, as amended (the "Plan"); and
WHEREAS, pursuant to the Plan, Outside Directors and Director Advisors
(any capitalized term not defined in the Agreement shall have the meaning given
to such term by the Plan) receive automatic grants of non-qualified options to
purchase common stock of the Company upon their election to the Board,
appointment as a Director Advisor and at such other times as the Plan may
specify.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereafter set forth and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF NON-QUALIFIED OPTIONS. The Company irrevocably grants to
the Optionee, as a matter of separate agreement and not in lieu of salary or
other compensation for services, the right and option to purchase all or any
part of an aggregate of __________ shares of authorized but unissued or treasury
common stock of the Company (the "Options") on the terms and conditions herein
set forth.
2. PRICE. The exercise price of the shares of common stock subject to
the Options shall be $________ which is equal to 110% of the Fair Market Value.
3. VESTING -WHEN EXERCISABLE.
(a) The Options shall vest and become exercisable as follows: (i)
one-third on the date of this Agreement, (ii) an additional one-third one year
from the date of this Agreement, and (iii) an additional one-third three years
from the date of this Agreement subject to the Optionee being a member of the
Board or an Advisor, as the case may be, on the applicable vesting date. If the
Optionee shall cease to serve as a Director or Director Advisor of the Company
due to his or her death or Disability ("Disability" and the date of Disability
to be determined by the Plan Administrator in the reasonable exercise of its
discretion), then any portion of the Option that has not vested and become
exercisable prior to the Optionee's death or disability shall immediately and
automatically vest and become exercisable in full.
(b) Subject to Sections 3 and 4 of this Agreement, Options shall
remain exercisable for 10 years from the date of grant.
(c) However, notwithstanding any other provision of this
Agreement, at the option of the Board of Directors or the Compensation
Committee, all Options, whether vested or unvested shall be immediately
forfeited in the event of:
(1) Purchasing or selling securities of the Company in
violation of the Company's inside information guidelines then in effect;
(2) Breaching any duty of confidentiality including that
required by the Company's inside information guidelines then in effect;
(3) Competing with the Company; or
(4) Recruitment of Company personnel before or after
termination of services as a Director.
4. TERMINATION OF RELATIONSHIP.
(a) In the event an Optionee resigns, is removed or is not
reelected as a Director or Director Advisor as the case may be, the Optionee
must exercise vested Options within three months following the date such person
ceases to be a Director or Director Advisor (but in no event later than the
expiration of its 10 year term), subject to Section 3(c). If an Outside Director
ceases to be a Director but is a Director Advisor, or if a Director Advisor
ceases to be a Director Advisor but is a Director, such change shall not result
in termination of any of his or her Options.
(b) PROVIDED, HOWEVER, if the Optionee has served on the Board
and/or as a Director Advisor for at least five years (whether consecutive or
not), and the Optionee's status as a Director or Director Advisor terminates for
any reason, other than death or Disability, after the Optionee has attained the
age of 60 years (herein called a "Retirement"), then Optionee may exercise his
or her Option, but only within 12 months following the date of termination due
to Retirement, and only to the extent that the Optionee was entitled to exercise
the Option on the date of such termination (but in no event later than the
expiration of its 10 year term). If an Outside Director ceases to be a Director
but is a Director Advisor, or if a Director Advisor ceases to be a Director
Advisor but is a Director, such change shall not result in termination of any of
his or her Options.
(c) If Optionee's status as a Director or Director Advisor
terminates as a result of Disability, then the Optionee may exercise his or her
Option, but only within 12 months following the date of such termination (but in
no event later than the expiration of its 10 year term). To the extent that the
Option is not exercised within the time specified herein, the Option shall
terminate.
(d) If the Optionee shall die while a Director or Director
Advisor, his estate or any Transferee, as defined herein, shall have the right
within 12 months from the date of the Director's or Director Advisor's death to
exercise the Optionee's vested Options subject to Section 3(c) (but in no event
later than the expiration of its 10 year term). For the purpose of this
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Agreement, "Transferee" shall mean the personal representative of the estate or
a person to whom such shares are transferred by will or by the laws of descent
and distribution.
(e) No transfer of the Options by the Director or Director Advisor
by will or by the laws of descent and distribution shall be effective to bind
the Company unless the Company shall have been furnished with written notice
thereof and a copy of the letters testamentary or such other evidence as the
Board may deem necessary to establish the authority of the state and the
acceptance by the Transferee or Transferees of the terms and conditions of the
Options. For the purpose of this Agreement, "Transferee" shall mean a person to
whom such shares are transferred by will or by the laws of descent and
distribution.
5. PROFITS ON THE SALE OF CERTAIN SHARES; REDEMPTION. If any of the
events specified in Section 3(c) of this Agreement occur within one year from
the last date of service by the Optionee as a Director or Director Advisor (the
"Termination Date"), all profits earned from the sale of the Company's
securities, including the sale of shares of common stock underlying Options,
during the two-year period commencing one year prior to the Termination Date
shall be forfeited and forthwith paid by the Optionee to the Company. Further,
in such event, the Company may at its option redeem shares of common stock
acquired upon exercise of Options. The Company's rights under this Section 5 do
not lapse one year from the Termination Date but are a contract right subject to
any appropriate statutory limitation period.
6. METHOD OF EXERCISE. The Options shall be exercisable by a written
notice which shall:
(a) state the election to exercise the Options, the number of
shares to be exercised, the person in whose name the stock certificate or
certificates for such shares of common stock is to be registered, his address
and social security number (or if more than one, the names, addresses and social
security numbers of such persons);
(b) contain such representations and agreements as to the holder's
investment intent with respect to such shares of common stock as set forth in
Section 9 hereof;
(c) be signed by the person or persons entitled to exercise the
Options and, if the Options are being exercised by any person or persons other
than the Optionee, be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person or persons to exercise the Options.
(d) be accompanied by full payment of the purchase or exercise
price therefor in United States dollars by (i) cash, (ii) check, (iii)
promissory note if approved by the Compensation Committee as to Director
Advisors or (iv) any combinations of the foregoing methods of payment.
The certificate or certificates for shares of common stock as to which the
Options shall be exercised shall be registered in the name of the person or
persons exercising the Options.
7. ANTI-DILUTION PROVISIONS. The Options granted hereunder shall have
the anti-dilution rights set forth in the Plan.
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8. NECESSITY TO BECOME HOLDER OF RECORD. Neither the Optionee nor
his/her estate, as provided in Section 4(e), shall have any rights as a
shareholder with respect to any shares of common stock covered by the Options
until such person shall have become the holder of record of such shares. No
adjustment shall be made for cash dividends or cash distributions, ordinary or
extraordinary, in respect of such shares for which the record date is prior to
the date on which he/she shall become the holder of record thereof.
9. CONDITIONS TO EXERCISE OF OPTIONS. In order to enable the Company to
comply with the Securities Act of 1933 (the "Securities Act") and relevant state
law, the Company may require the Optionee, his estate, or any Transferee, as a
condition of the exercising of the Options granted hereunder, to give written
assurance satisfactory to the Company that the shares subject to the Options are
being acquired for his own account, for investment only, with no view to the
distribution of same, and that any subsequent resale of any such shares either
shall be made pursuant to a registration statement under the Securities Act and
applicable state law which has become effective and is current with regard to
the shares being sold, or shall be pursuant to an exemption from registration
under the Securities Act and applicable state law.
The Options are subject to the requirement that, if at any time the Board
shall determine, in its discretion, that the listing, registration, or
qualification of the shares of common stock subject to the Options upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary as a condition of, or
in connection with the issue or purchase of shares under the Options, the
Options may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected.
10. STOP-TRANSFER ORDERS.
(a) The Optionee agrees that, in order to ensure compliance with
the restrictions set forth in the Plan and this Agreement, the Company may issue
appropriate "stop transfer" instructions to its duly authorized 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.
(b) The Company shall not be required (i) to transfer on its books
any shares of the Company's common stock that have been sold or otherwise
transferred in violation of any of the provisions of the Plan or the Agreement
or (ii) to treat the owner of such shares of common stock or to accord the right
to vote or pay dividends to any purchaser or other transferee to whom such
shares of common stock shall have been so transferred.
11. DUTIES OF COMPANY. The Company shall at all times during the term of
Options:
(a) Reserve and keep available for issue such number of shares of
its authorized and unissued common stock as will be sufficient to satisfy the
requirements of this Agreement;
(b) Pay all original issue taxes with respect to the issue of
shares pursuant hereto and all other fees and expenses necessarily incurred by
the Company in connection therewith;
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(c) Use its best efforts to comply with all laws and regulations
which, in the opinion of counsel for the Company, shall be applicable thereto.
12. PARTIES BOUND BY PLAN. This Agreement shall be construed in
accordance and consistent with, and subject to, the provisions of the Plan (the
provisions of which are incorporated herein by reference). The Plan and each
determination, interpretation or other action made or taken pursuant to the
provisions of the Plan shall be final and shall be binding and conclusive for
all purposes on the Company and the Optionee and his respective successors in
interest. In the event of a conflict between the terms and conditions of the
Plan and this Agreement, the terms and conditions of the Plan shall prevail.
13. SEVERABILITY. In the event any parts of this Agreement are found to
be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
14. ARBITRATION. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in Xxxxxx County, Florida (unless the
parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. The decision and award made by the arbitrator shall be final, binding
and conclusive on all parties hereto for all purposes, and judgment may be
entered thereon in any court having jurisdiction thereof.
15. BENEFIT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their legal representatives, successors and
assigns.
16. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar overnight next business day delivery, or by facsimile delivery
followed by overnight next business day delivery, as follows:
The Optionee:
The Company: UltraStrip Systems, Inc.
0000 X.X. Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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or to such other address as any of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted from the date of transmission.
17. ATTORNEY'S FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs and expenses.
18. GOVERNING LAW. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or performance
shall be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
19. ORAL EVIDENCE. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
21. ADDITIONAL DOCUMENTS. The parties hereto shall execute such
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
22. SECTION OR PARAGRAPH HEADINGS. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
IN WITNESS WHEREOF the parties hereto have set their hand and seals the
day and year first above written.
WITNESSES: ULTRASTRIP SYSTEM, INC.
_______________________________ By:____________________________
Xxxxx X. Xxxxxxx III,
Chief Financial Officer
OPTIONEE
______________________________ ________________________________
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