EXHIBIT 10.6
XXXXXXXX.XXX
NON-QUALIFED STOCK OPTION
AGREEMENT
AGREEMENT made as of the _____ day of ______________, ______ (the
"Grant Date") by and between XXXXXXXX.XXX, a Nevada corporation, having its
office and principal place of business located at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XX 00000 (the "Corporation") and ___________________ (the "Holder").
W I T N E S S E T H:
WHEREAS, on the Grant Date, the Corporation authorized the grant to the
Holder of an option to purchase an aggregate of ___________ shares of the
authorized but unissued Common Stock of the Corporation, $.001 par value (the
"Stock"), pursuant to the Corporation's 1999 Stock Incentive Plan (the "Plan"),
conditioned upon the Holder's acceptance thereof upon the terms and conditions
set forth in this Agreement; and
WHEREAS, the Holder desires to acquire said option on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions herein contained and for other good and valuable consideration, the
parties hereto agree as follows:
A. The Corporation hereby grants to the Holder the right and
option (hereinafter called the "Option"), to purchase all or
any part of an aggregate ________--- shares of Stock on the
terms and conditions herein set forth and in the Plan, which
is incorporated by reference herein. The Holder acknowledges
receipt of a copy of the Plan.
B. This Option shall be deemed to be a non-qualified stock
option.
C. The purchase price ("Purchase Price") of each share of Stock
subject to this Option shall be $__________, subject to
adjustment as provided in section G hereof.
D. This Option shall be exercisable in whole or in part at any
time or from time to time for a period commencing on the Grant
Date and terminating at the close of business on
__________________ (the "Exercise Period").
E. The Purchase Price of the shares of Stock as to which the
Option is exercised shall be paid in full at the time of
exercise by cash or check payable to the order of the
Corporation. The Holder shall not have any of the rights of a
stockholder with respect to the Stock covered by the Option
until the date of the issuance of a stock certificate to
Holder for such shares of Stock.
F.
1. Except as provided in paragraph F(2), this Option and
the rights and privileges conferred hereby may not be
transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) and
shall not be subject to execution, attachment or
similar process. Upon any attempt to transfer,
assign, pledge, hypothecate or otherwise dispose of
this Option or any right or privilege conferred
hereby, contrary to the provisions hereof, or upon
the levy of any attachment or similar process on the
rights and privileges conferred hereby, this Option
and the rights and privileges conferred hereby shall
immediately become null and void.
2. Upon the death of the Holder, any Option granted to
him or the unexercised portion thereof, which was
otherwise exercisable on his date of death, shall
terminate unless such Option to the extent
exercisable at death is exercised by the executor or
administrator of his estate, within the earlier of
three (3) months following the Holder's death or the
date of the expiration of the Option.
3. The Board of Directors of the Corporation or the
Corporation's Stock Incentive Committee (the
"Committee"), as the case may be, may require, as a
condition to the sale of Stock or the exercise of any
Option, that the person exercising such Option give
to the Corporation such documents including such
appropriate investment representations as may be
required by counsel for the Corporation and such
additional agreements and documents as the Board of
Directors or the Committee, as the case may be, shall
determine to be in the best interests of the
Corporation.
G.
1. If the outstanding shares of Stock of the Corporation
are increased, decreased, changed into or exchanged
for a different number or kind of stock or securities
of the Corporation or stock of a different par value
or without par value, through reorganization,
recapitalization, reclassification, stock dividend,
stock split, forward or reverse stock split or
otherwise, an appropriate and proportionate
adjustment shall be made in the maximum number and/or
kind of securities allocated to this Option,
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without change in the aggregate purchase price
applicable to the unexercised portion of the
outstanding Options, but with a corresponding
adjustment in the price for each share of Stock or
other unit of any security covered by this Option.
2. Adjustments under this section G or any other
adjustment in the terms of this Agreement made in
accordance with the terms of the Plan as a result of
a merger, consolidation, sale of substantially all of
the Corporation's assets or similar transaction
affecting the Corporation as specified in section 3
of the Plan, shall be made by the Board of Directors,
whose determination as to what adjustments shall be
made, and the extent thereof, shall be final binding
and conclusive. No fractional shares of Stock shall
be issued under the Plan or any such adjustment.
H. Subject to the terms and conditions of this Agreement, the
Option may be exercised with respect to all or any portion of
the Stock subject hereto by the delivery to the Corporation,
at its principal place of business of (a) the written Notice
of Exercise in the form attached hereto as Exhibit A, which is
incorporated herein by reference, specifying the number of
shares of Stock with respect to which the Option is being
exercised and signed by the person exercising the Option as
provided herein, (b) payment of the Purchase Price and (c)
payment of any withholding tax that the Corporation may be
required to withhold as a result of exercises of the Option by
the Holder. Subject to the provisions of the Plan, the
Corporation shall issue and deliver a certificate or
certificates representing said Stock as soon as practicable
after the notice and payment is so received. The certificate
or certificates for the Stock as to which the Option shall
have been so exercised shall be registered in the name of the
person or persons so exercising the Option, and shall be
delivered as aforesaid to or upon written order of the person
or persons exercising the Option. In the event the Option is
being exercised pursuant to the Plan by any person or persons
other than the Holder, the notice shall be accompanied by
appropriate proof of the right of such person or persons to
exercise the Option.
I. In the event of a conflict between the provisions of the Plan
and the provisions of this Agreement, the Plan shall in all
respects be controlling.
J. All offers, acceptances, notices, requests, deliveries,
payments, demands and other communications which are required
or permitted to be given under this Agreement shall be in
writing and shall be either delivered personally or sent by
registered or certified mail, return receipt requested,
postage prepaid to the parties at their respective addresses
set forth herein, or to such other address as either shall
have specified by notice in writing to the other. Same shall
be deemed given hereunder when so delivered or received, as
the case may be.
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K. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver
of any other or subsequent breach.
L. This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof.
M. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and to the extent not prohibited
herein, their respective heirs, successors and assigns and
representatives. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the
parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies,
obligations or liabilities.
N. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
XXXXXXXX.XXX
By:__________________________
Name:
Title:
HOLDER: ______________________
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EXHIBIT A
NOTICE OF EXERCISE OF
XXXXXXXX.XXX NON-QUALIFIED STOCK OPTION
TO PURCHASE COMMON STOCK OF
XXXXXXXX.XXX
Name __________________________
Address _______________________
_______________________________
Date __________________________
XxxxXxxx.xxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
Re: Exercise of XxxxXxxx.xxx
Stock Option
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Gentlemen:
Subject to acceptance hereof in writing by XxxxXxxx.xxx (the
"Company") pursuant to the provisions of the XxxxXxxx.xxx 1999 Stock Option
Plan, I hereby elect to exercise options granted to me to purchase ________
shares of $.001 par value common stock of the Company (the "Common Stock") under
the XxxxXxxx.xxx Incentive Stock Option Agreement dated as of
__________________, 2002 (the "Agreement"), at $______ per share (subject to
adjustment as provided in the Agreement).
Enclosed is a check in the amount of $_________, representing
the full purchase price, payable to the order of XxxxXxxx.xxx. If applicable, I
have also enclosed a check payable to XxxxXxxx.xxx representing payment of
applicable withholding taxes.
As soon as the Stock Certificate is registered in my name,
please deliver it to me at the above address.
Unless the issuance of the shares of Common Stock being
purchased by me pursuant to the Agreement are subject to an effective
registration statement under the Securities Act of 1933 (the "Act"), I hereby
represent, warrant, covenant and agree with the Company as follows:
The shares of the Common Stock being acquired by me will be
acquired for my own account for investment and without the intent of
participating, directly or indirectly, in a distribution of the Common
Stock and not with a view to, or for resale in connection with, any
distribution of the Common Stock, nor am I aware of the existence of
any distribution of the Common Stock;
I am not acquiring the Common Stock based upon any
representation, oral or written, by any person with respect to the
future value of, or income from, the Common Stock but rather upon an
independent examination and judgment as to the prospects of the
Company;
The Common Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
I am able to bear the economic risks of the investment in the
Common Stock, including the risk of a complete loss of my investment
therein;
I have and have had complete access to and the opportunity to
review and make copies of all material documents related to the
business of the Company. I have examined such of these documents as I
wished and am familiar with the business and affairs of the Company. I
realize that the purchase of the Common Stock is a speculative
investment, that any possible profit therefrom is uncertain and that I
may lose my entire investment;
I have had the opportunity to ask questions of and receive
answers from the Company and any person acting on its behalf and to
obtain all material information reasonably available with respect to
the Company and its affairs. I have received all information and data
with respect to the Company which I have requested and which I have
deemed relevant in connection with the evaluation of the merits and
risks of my investment in the Company;
I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks of the
purchase of the shares of Common Stock hereunder and I am able to bear
the economic risks of such purchase; and
The agreements, representations, warranties and covenants made
by me herein extend to and apply to all of the Common Stock of the
Company issued to me pursuant to the Option of which this exhibit forms
a part. Acceptance by me of the certificate representing such Common
Stock shall constitute a confirmation by the undersigned that all such
agreements, representations, warranties and covenants made herein by
the undersigned shall be true and correct at such time.
I understand that the certificates representing the shares of
Common Stock being purchased by me in accordance with this notice shall
bear a legend referring to the foregoing
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covenants, representations and warranties and restrictions on transfer,
and I agree that a legend to that effect may be placed on any
certificate which may be issued to me as a substitute for the
certificates being acquired by me in accordance with this notice.
Very truly yours,
-----------------------
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AGREED TO AND ACCEPTED:
XXXXXXXX.XXX
By: _______________________________
Title: ____________________________
Number of Shares
Exercised: ________________________
Number of Shares
Remaining: ________________________ Date: ___________________
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