EXHIBIT 10.5
XXXXXXXX.XXX
INCENTIVE 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. The Holder is an employee of the Company and this Option shall
be deemed to be an incentive 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 may be exercised, from time to time, in full or in
part, by the Holder to the extent it is vested (as specified
below) and shall remain exercisable (subject to the provisions
herein) until it has been exercised as to all of the shares of
Stock or the _________ anniversary of the Grant Date (the
"Exercise Period"), whichever occurs first. Unless terminated
in accordance with the Plan, this Option will vest at the rate
of ___% per year from the Grant Date, but only if the Holder
has remained in the continuous employ of the Corporation from
the Grant Date to the date of vesting. Notwithstanding any
terms, conditions or language to the contrary contained in the
Plan, in the event the Holder's employment by the Corporation
or any of its subsidiaries is terminated (for any reason other
than death, disability or discharge for cause, as defined in
the Plan) any Option granted to the Holder or unexercised
portion thereof which was otherwise exercisable on the date of
termination of employment shall terminate unless, such Option,
to the extent exercisable at termination, is exercised within
the earlier of three (3) months after the Holder ceases to be
an employee on the date of expiration of the Option. If the
Holder's employment is terminated for cause, as defined in the
Plan, any Option or unexercised portion thereof granted to the
Holder shall terminate and be of no further force and effect
from the date of discharge.
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,
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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, 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
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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.
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 INCENTIVE 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
__________________, ___________ (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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