EXHIBIT 4.2
INTERNATIONAL BARTER CORP.
STOCK OPTION AGREEMENT
Neither this option nor the underlying shares of common stock have been
registered under the Securities Act of 1933, as amended ("Securities Act"). This
option or the underlying common shares may not be sold or transferred unless:
(i) there is an effective registration covering the option or shares, as the
case may be, under the Securities Act and applicable states securities laws;
(ii) the Company first receives a letter from an attorney, acceptable to the
board of directors or its agents, stating that in the opinion of the attorney
the proposed transfer is exempt from registration under the Securities Act and
applicable states securities laws; or, (iii) the transfer is made pursuant to
rule 144 under the Securities Act.
BETWEEN:
Xxxxx Xxxxxxxx
("Optionee")
AND
International Barter Corp. ("Company")
a Nevada corporation
1.0 RECITALS
1.1 The Company has adopted the 1998 Stock Option Plan ("Plan"),
incorporated herein by reference, that provides for the grant of options to
purchase shares of Common Stock ("Shares") of the Company. Unless otherwise
defined in this Agreement, the terms defined in the Plan shall have the same
defined meanings in this Agreement.
2.0 NOTICE OF GRANT
2.1 Optionee has been granted an option to purchase Shares of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as
follows:
Grant Number: 6
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Date of Grant: August 1, 1998
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Vesting Commencement Date: August 1, 1998
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Exercise Price per Share: $0.8125
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Total Number of Shares Granted: 40,000
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Total Exercise Price: $32,500
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Type of Option: -- Incentive Stock Option
X Nonqualified Stock Option
Expiration Date: August 1, 2003
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Vesting Schedule: This Option may be exercised, in whole or in part, in
accordance with the following schedule: 100% of the Shares subject to the Option
shall immediately vest on the Vesting Commencement Date
Termination Period: This Option may be exercised for 90 days after Optionee
ceases to be a Service Provider. Upon the death or Disability of the Optionee,
this Option may be exercised for such longer period as provided in the Plan. In
no event shall this Option be exercised later than the Expiration Date as
provided above.
3.0 GRANT OF OPTION
3.1 Subject to the terms and conditions of the Plan and of this Agreement,
the Plan Administrators of the Company grant to the Optionee named above an
option ("Option") to purchase the number of Shares, as set forth above in
Section 2.0 entitled "Notice of Grant", at the exercise price per share set
forth above in Notice of Grant ("Exercise Price"). Subject to any mutual
amendments of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Agreement, the terms
and conditions of the Plan shall prevail.
3.2 If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Nonqualified Stock Option ("NQO").
4.0 EXERCISE OF OPTION
4.1 Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set forth above in the Notice of Grant and
the applicable provisions of the Plan and this Option Agreement.
4.2 Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached as Exhibit A ("Exercise Notice"), which
shall state the election to exercise the Option, the number of Shares in respect
of which the Option is being exercised ("Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be completed by the Optionee
and delivered to 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 the fully
executed Exercise Notice accompanied by the aggregate Exercise Price.
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5.0 COMPLIANCE WITH APPLICABLE LAW
5.1 No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with applicable state or federal law,
including securities laws, corporate laws, the Code or any stock exchange or
quotation system. If the Plan Administrators at any time determine that
registration or qualification of the Shares or the Option under state or federal
law, or the consent approval of any governmental regulatory body is necessary or
desirable, then the Option may not be exercised, in whole or in part, until such
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Plan Administrators.
Assuming compliance, for income tax purposes the Exercised Shares shall be
considered transferred to the Optionee on the date the Option is exercised with
respect to such Exercised Shares.
5.2 If required by the Company at the time of any exercise of the Option
in order to comply with federal or state securities laws, as a condition to such
exercise, the Employee shall enter into an agreement with the Company in form
satisfactory to counsel for the Company by which the Employee: (i) shall
represent that the Shares are being acquired for the Employee's own account for
investment and not with a view to, or for sale in connection with, any resale or
distribution of such Shares; and, (ii) shall agree that if the Employee should
decide to sell, transfer, or otherwise dispose of any such Shares, the Employee
may do so only if the Shares are registered under the Securities Act and the
relevant state securities law, unless, in the opinion of counsel for the
Company, such registration is not required, or the transfer is pursuant to the
Securities and Exchange Commission Rule 144.
6.0 METHOD OF PAYMENT
6.1 Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) certified or cashier's check;
(c) consideration received by the Company under a cashless exercise
program implemented by the Company in connection with the Plan;
(d) with the Plan Administrator's consent, 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; or
(e) with the Plan Administrator's consent, delivery of Optionee's
promissory note (the "Note") in the form approved by Plan Administrators, in the
amount of the aggregate Exercise Price of the Exercised Shares together with the
execution and delivery by the Optionee of a Security Agreement in the form
approved by Plan Administrators. The Note shall bear interest at the "applicable
federal rate" prescribed under the Code and its regulations at time of purchase,
and shall be secured by a pledge of the Shares purchased by the Note pursuant to
the Security Agreement.
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7.0 NON-TRANSFERABILITY OF OPTION
7.1 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 the Optionee. The terms of the Plan and this
Agreement shall be binding upon the executors, administrators, heirs, successors
and assigns of Optionee.
8.0 TERM OF OPTION
8.1 This Option may be exercised only within the term set forth above in
the Notice of Grant, and may be exercised during that term only in accordance
with the Plan and the terms of this Option Agreement.
9.0 TAX CONSEQUENCES
Some of the federal tax consequences relating to this Option, as of the
date of this Option, are set forth below. This summary is incomplete, and the
tax laws and regulations are subject to change. The optionee should consult a
tax adviser before exercising this option or disposing of the shares.
9.1 Exercising the Option.
9.1.1 Nonqualified Stock Option. The Optionee may incur regular federal
income tax liability upon exercise of a NQO. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the Fair Market value of the Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
Employee or a former Employee, the Company will be required to withhold from his
or her compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation income
at the time of exercise, and may refuse to honor the exercise and refuse to
deliver Shares if these withholding amounts are not delivered at the time of
exercise.
9.1.2 Incentive Stock Option. If this Option qualifies as an ISO, the
Optionee will have no regular federal income tax liability upon its exercise,
although the excess, if any, of the Fair Market Value of the Exercised Shares on
the date of exercise over their aggregate Exercise Price will be treated as an
adjustment to alternative minimum taxable income for federal tax purposes and
may subject the Optionee to alternative minimum tax in the year of exercise. In
the event that the Optionee ceases to be an Employee but remains a Service
Provider, any Incentive Stock Option of the Optionee that remains unexercised
shall cease to qualify as an Incentive Stock Option and will be treated for tax
purposes as a Nonqualified Stock Option on the date three (3) months and one (1)
day following this change of status.
9.2 Disposition of Shares.
9.2.1 NQO. If the Optionee holds NQO Shares for at least one year, except
for that portion treated as compensation income at the time of exercise, any
gain realized on disposition of the Shares will be treated as long-term capital
gain for federal income tax purposes.
9.2.2 ISO. If the Optionee holds ISO Shares for at least one year after
exercise and two years after the grant date, any gain realized on disposition of
the Shares will be treated as
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long-term capital gain for federal income tax purposes. If the Optionee disposes
of ISO Shares within one year after exercise or two years after the grant date,
any gain realized on such disposition will be treated as compensation income
(taxable at ordinary income rates) to the extent of the excess, if any, of the
lesser of (i) the difference between the Fair Market Value of the Shares
acquired on the date of exercise and the aggregate Exercise Price, or (ii) the
difference between the sale price of such Shares and the aggregate Exercise
Price. Any additional gain will be taxed as capital gain, short-term or
long-term depending on the period that the ISO Shares were held.
9.3 Notice of Disqualifying Disposition of ISO Shares. If the Optionee
sells or otherwise disposes of any of the Shares acquired pursuant to an ISO on
or before the later of (i) two years after the grant date, or (ii) one year
after the exercise date, the Optionee shall immediately notify the Company in
writing of the disposition. The Optionee agrees that he or she may be subject to
income tax withholding by the Company on the compensation income recognized from
such early disposition of ISO Shares by payment in cash or out of the current
earnings paid to the Optionee.
10.0 SHAREHOLDERS' AGREEMENT
10.1 Optionee acknowledges and agrees that whatever period determined
appropriate by the Company, underwriter, or federal and state regulatory
officials including, but not limited to, the Securities and Exchange Commission,
National Association of Securities Dealers and NASDAQ, following the effective
date of a registration statement of the Company covering common stock (or other
securities) of the Company to be sold on its behalf in an underwriting, Optionee
will not sell or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) Shares of the Company held by Optionee at any time
during such period except securities included in that registration.
10.2 Optionee acknowledges and agrees that if for purposes of a
registration statement of the Company the underwriter or federal or state
regulatory officials fix a specific Common Stock or Option lockup period, such
fixed lockup period shall apply to Optionee under this Agreement.
11.0 NO GUARANTEE OF CONTINUED SERVICE
11.1 Optionee acknowledges and agrees that the vesting of shares pursuant
to the vesting schedule set forth in this Agreement is earned only by continuing
as a Service Provider at the will of the Company, and not through the act of
being hired, being granted an option or purchasing shares under this Agreement.
Optionee further acknowledges and agrees that this Agreement, the transactions
contemplated and the vesting schedule set forth in it do not constitute an
express or implied promise of continued engagement as a Service Provider for the
vesting period, for any period, or at all, and shall not interfere with
Optionee's right or the Company's right to terminate Optionee's relationship as
a Service Provider at any time, with or without cause.
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12.0 SIGNATURES
Dated August 1, 1998
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International Barter Corp.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
President/CEO
Optionee acknowledges and represents that he or she has received a copy of the
Plan, has reviewed the Plan and this Agreement in their entirety, is familiar
with its and fully understands its terms and provisions. Optionee accepts this
Option subject to all the terms and provisions of the Plan and this Agreement.
Optionee has had an opportunity to obtain the advice of counsel prior to
executing this Agreement. Optionee agrees to accept as binding, conclusive and
final all decisions or interpretations of the Plan Administrators upon any
questions arising under the Plan and Agreement. Optionee further agrees to
notify the Company upon any change in the residence address indicated on the
first page of this Agreement.
Dated August 1, 1998
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OPTIONEE:
/s/ Xxxxx Xxxxxxxx
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Signature
Xxxxx Xxxxxxxx
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Print Name
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and approves the terms and
conditions of the Plan and this Agreement. In consideration of the Company's
granting his or her spouse the right to purchase Shares as set forth in the Plan
and this Agreement, the undersigned agrees to be irrevocably bound by the terms
and conditions of the Plan and this Option Agreement and further agrees that any
community property interest shall be similarly bound. The undersigned hereby
appoints the undersigned's spouse as attorney-in-fact for the undersigned with
respect to any amendment or exercise of rights under the Plan or this Agreement.
/s/ Xxxxx Xxx Xxxxxxxx
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Spouse of Optionee
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