Exhibit 10-2
EXHIBIT A
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is between
Xxxx Xxxxxxx (the "Grantee") and the other party named on the signature page to
this Agreement (the "Company"). Each of the Grantee and the Company are also
referred to in this agreement as the "Parties".
WHEREAS, the Board of Directors of the Company (the "Board of Directors")
has authorized the grant to the Grantee, for services to be rendered by the
Grantee as a consultant to the Company pursuant to the terms of a Consulting and
Marketing License Agreement (the "Consulting Agreement") between the Company and
the Grantee, of a non-qualified stock (the "Common Stock") specified in
paragraph 1 of this Agreement, at the price specified in paragraph 1 of this
Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the
Board of Directors, the Company hereby grants to the Grantee, in
consideration of consulting services to be performed for the benefit
oft the Company pursuant to the Consulting Agreement, an option
("Option") to purchase the number of common shares ("Option Shares")
of Common Stock set forth below, at the exercise price set forth
below:
Number of Shares: 500,000
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Exercise Price (in US$): $ 40,000
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2. Term. The Option and this Agreement shall expire ten (10) years from
the date of this Agreement.
3. Shares Subject To Exercise: The Option shall be immediately
exercisable and shall remain exercisable for the entire Term specified
in Paragraph 2 of this Agreement.
4. Method and Time of Exercise. The Option may be exercised in whole or
from time to time in part by written notice delivered to the Company
slating the number of Option Shares with respect to which the Option
is then being exercised, together with a check of wire to the Company
in the amount equal to the Exercise Price multiplied by the number of
Option Shares then being issued pursuant to the written notice of
exercise. Not less than one hundred (100) Option Shares may be
purchased upon exercise of the Option at any one time unless the
number of Option Shares for which exercise of the Option is being made
is all of the Option Shares then issuable upon exercise of the Option.
Only whole shares shall be issued upon exercise of the Option.
5. Tax Withholding. As a condition of the options Grantee shall be liable
to pay to all applicable federal, state and local taxes.
6. Exercise Following Termination of Consulting Agreement. The Option
shall not terminate as a result of the termination of Grantee's
services as a consultant to the Company pursuant to the Consulting
Agreement.
7. Transferability. The Option and this Agreement may not be assigned or
transferred except by will or by the laws of descent and distribution,
and with consent of the Company.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
shareholder with respect to the Option Shares issued from time to time
upon exercise of the Option until the earlier of: (1) the date of
issuance of a stock certificate of stock certificate to the Grantee
applicable to the Option Shares then issuable to the Grantee upon
exercise of the Option and (2) the date on which the Grantee or his
nominee is recorded as owner of such Option Shares on the Company's
stock ledger by the Company's registrar and transfer agent, which may
be the Company. Except as set forth in paragraph 13 of this Agreement,
no adjustment will be made for dividends or other rights for which the
record date is prior to the earlier of the events described in clauses
(1) and (2) of this paragraph.
9. Restrictions on Transfer. The Grantee represent and agrees that, upon
the Grantee's exercise of the Option in whole of in part, unless there
is in effect at that time under the Securities Act of 1933 a
registration statement relating to the Option Shares, the Grantee will
acquire the Option Shares for the purpose of investment and not with a
view to their resale or further distribution, and that upon such
exercise hereof, the Grantee will furnish to the Company a written
statement to such effect, satisfactory to the Company in form and
substance.
10. Shares Qualified for Listing. Company represents that its Common Stock
is qualified for trading or quotation on a nationally recognized
securities exchange or stock quotation system, including the NASDAQ
Bulletin Board.
11. Registration Rights. Upon signing this Agreement, the Company shall
immediately, at the Company's expense, use its best efforts to file
with the Securities and Exchange Commission ("SEC"), a registration
statement ("Registration Statement") on Form S-8 or other comparable
form, or if such form is not then available, such other form of
registration statement then available, in such form as to comply with
applicable federal and state laws for the purpose of registering or
qualifying the Option Shares for public resale by the Grantee, and
prepare and file with the appropriate state securities regulatory
authorities the documents reasonably necessary to register or qualify
the Option Shares, subject to the ability of the Company to register
or qualify the Option Shares under applicable state law.
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12. Notices. All notices to the Company shall be addressed to the Company
at the principal office of the Company at the address and facsimile
number set forth on the signature page of this Agreement, and all
notices to the Grantee shall be addressed to the Grantee at the
address and facsimile number of the Grantee set forth on signature
page of this Agreement or, if different, the last address and
facsimile number on file with the Company, or to such other address
and facsimile number 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 and
followed by facsimile to the addressee. In lieu of giving notice by
mail as aforesaid, written notices under this Agreement may be given
by personal delivery to the Grantee or to the Company (as the case may
be) by nationally recognized courier or overnight delivery service.
13. Adjustments. If there is any change in the capitalization of the
Company after the date of this Agreement affecting in any manner the
number or kind of outstanding shares of Common Stock of the Company,
as a result of stock dividend, stock split, reclassification or
recapitalization of such stock, or because the Company has merged or
consolidated with one or more other corporations (and provided the
Option does not thereby terminate pursuant to paragraph 14 of this
Agreement), then the number and kind of shares then subject to the
Option and the exercise price to be paid for the Option Shares shall
be appropriately adjusted by the Board of Directors; provided however,
that in no event shall any such adjustment result in the Company being
required to sell or issue any fractional shares. Any such adjustment
shall be made without change in the aggregate exercised portion of the
Option, but with an appropriate adjustment to the exercise price of
each Option Share or other unit of security then covered by the Option
and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other provision
of this Agreement, in the event of the reorganization, merger or
consolidation of the Company with one or more corporations as a result
of which the Company is not the surviving corporation, or the sale of
substantially all the assets of the Company or of more than fifty
percent (50%) of the then outstanding stock of the Company to another
corporation or other entity in a single transaction, the Option
granted hereunder shall terminate, provided however, that not later
than five (5) days before the effective date of such merger or
consolidation or sale of assets in which the Company is not the
surviving corporation, the surviving corporation may, but shall not be
so obligated to, tender to the Grantee an option to purchase a number
of shares of capital stock of the surviving corporation equal to the
number of Option Shares then issuable upon exercise of the Option, and
such new option or options for shares of the surviving corporation
shall contain such terms, conditions and provisions as shall be
required substantially to preserve the rights and benefits of the
Option and this Agreement.
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15. Miscellaneous.
(a) Entire Agreement. This Agreement and the Consulting Agreement
contain the entire agreement between the Parties, and may not be
waived, amended, modified or supplemented except by agreement in
writing signed by the Party against whom enforcement of any
waiver, amendment, modification or supplement is sought. Waiver
of or failure to exercise any rights shall not be deemed a waiver
of any further or future rights.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of California, and the Parties agree
that the exclusive jurisdiction for any litigation or arbitration
arising from this Agreement shall be in Los Angeles, California
or New York City, New York to be mutually agreed upon by both
parties.
(c) Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
which when taken together shall constitute one agreement.
(d) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s)
shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were excluded
and shall be enforceable in accordance with its terms.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of
the date set forth below.
Date: 8/22/01 OPTIONEE:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Social Security Number: ###-##-####
Address for Notices:
00 Xxxx Xxxxxxx Xxxxxx, Xx. 000
Xxxx, Xxxxxx 00000
Fax: 000-000-0000
Fax: 000-000-0000
COMPANY:
GETGO INC.
Address for Notices:
0000 X. Xxxxxx Xxxxxx #000
Xxxxxx, Xxxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman
and CEO
Fax: 000-000-0000 and 000-000-0000
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