SPEEDEMISSIONS, INC.
EXHIBIT
4.2
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED
AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS
OF
FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION
OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER
FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
SPEEDEMISSIONS,
INC.
2005
Omnibus Stock Grant and Option Plan
Speedemissions,
Inc. (the “Company”), hereby grants an Option to purchase shares of its common
stock (“Shares”) to the Optionee named below. The terms and conditions of the
Option are set forth in this cover sheet, in the attachment and in the Company’s
2005 Omnibus Stock Grant and Option Plan (the “Plan”).
Date
of
Grant:_____________________________
Name
of
Optionee:_____________________________
Optionee’s
Social Security Number:_______________________________
Number
of
Shares Covered by Option:_____________________________
Exercise
Price per Share: $_______________________
[must
be
at least 100% fair market value on Date of Grant]
Vesting
Start Date:______________________
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Check
here if Optionee is a 10% owner (so that exercise price must be 110%
of
fair market value).
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By
signing this cover sheet, you agree to all of the terms and conditions described
in the attached Agreement and in the Plan, a copy of which is also
attached.
Optionee:______________________________________
(Signature)
Company:______________________________________
(Signature)
Title:____________________________
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THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED
AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS
OF
FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION
OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER
FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
SPEEDEMISSIONS,
INC.
2005
Omnibus Stock Grant and Option Plan
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Incentive
Stock Option
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This
Option is intended to be an incentive stock option under section
422 of
the Internal Revenue Code and will be interpreted
accordingly.
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Vesting
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No
Shares will vest until you have performed _________ (____) months
of
Service from the commencement of your employment with the Company.
Your
Option shall vest as to ________ of the Shares on the date _______
(____)
months from the Vesting Start Date as shown on the cover sheet.
Thereafter, Shares shall vest at the rate of _______ of the Shares
at the
end of each full month thereafter. After you have completed _________
(____) months of Service, the number of Shares which vest under
this
Option at the Exercise Price shall be equal to the product of the
number
of full months of your continuous employment with the Company (“Service”)
(including any approved leaves of absence) from the Vesting Start
Date
times the number of Shares covered by this Option times ________.
The
resulting number of Shares will be rounded to the nearest whole
number. No
additional Shares will vest after your Service has terminated for
any
reason.
You
should note that you may exercise the Option prior to vesting.
In that
case, the Company has a right to repurchase the unvested shares
at the
original exercise price if you terminate employment before vesting
in all
shares you purchased. Also, if you exercise before vesting, you
should
consider making an 83(b) election. Please see the attached Tax
Summary.
The
83(b) election must be filed within 30 days of the date you
exercise.
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Term
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Your
Option will expire in any event at the close of business at Company
headquarters on the day before the tenth anniversary of the Date
of Grant,
as shown on the cover sheet. (It will expire earlier if your Service
terminates, as described below.)
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Regular
Termination
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If
your Service terminates for any reason except death, Disability
or for
“Cause,” your Option will expire at the close of business at Company
headquarters on the 30th day after your termination date. During
that
30-day period, you may exercise that portion of your Option that
was
vested on your termination date.
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Death
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If
you die while in Service with the Company, your Option will expire
at the
close of business at Company headquarters on the date six months
after the
date of death. During that six-month period, your estate or heirs
may
exercise that portion of your Option that was vested on the date
of
death.
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Disability
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If
your Service terminates because of your Disability, your Option
will
expire at the close of business at Company headquarters on the
date
six months after your termination date. (However, if your Disability
is not expected to result in death or to last for a continuous
period of
at least 12 months, your Option will be eligible for ISO tax treatment
only if it is exercised within three months following the termination
of
your Service.) During that six-month period, you may exercise that
portion
of your Option that was vested on the date of your
Disability.
“Disability”
means that you are unable to engage in any substantial gainful
activity by
reason of any medically determinable physical or mental
impairment.
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Leaves
of Absence
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For
purposes of this Option, your Service does not terminate when you
go on a
bona
fide
leave of absence that was approved by the Company in writing, if
the terms
of the leave provide for continued service crediting, or when continued
service crediting is required by applicable law. However, your
Service
will be treated as terminating 30 days after you went on leave,
unless
your right to return to active work is guaranteed by law or by
a contract.
Your Service terminates in any event when the approved leave ends
unless
you immediately return to active work. The Company determines which
leaves
count for this purpose, and when your Service terminates for all
purposes
under the Plan. The Company also determines the extent to which
you may
exercise the vested portion of your Option during a leave of
absence.
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Notice
of Exercise
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When
you wish to exercise this Option, you must execute Exhibit
A
(and, if exercise is prior to vesting, you must also execute Exhibits
B and D).
Your exercise will be effective when it is received by the Company.
If
someone else wants to exercise this Option after your death, that
person
must prove to the Company’s satisfaction that he or she is entitled to do
so.
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Form
of Payment
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When
you submit Exhibit
A,
you must include payment of the Exercise Price for the Shares
you are
purchasing. Payment may be made in one (or a combination) of
the following
forms at the discretion of the
committee:
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Your
personal check, a cashier’s check or a money
order.
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Shares
which you have owned for six months and which are surrendered
to the
Company. The value of the Shares, determined as of the effective
date of
the Option exercise, will be applied to the Exercise
Price.
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To
the extent that a public market for the Shares exists as determined
by the
Company, by delivery (on a form prescribed by the Committee)
of an
irrevocable direction to a securities broker to sell Shares
and to deliver
all or part of the sale proceeds to the Company in payment
of the
aggregate Exercise Price.
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Any
other form of legal consideration approved by the
Committee.
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Withholding
Taxes
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You
will not be allowed to exercise this Option unless you make acceptable
arrangements to pay any withholding or other taxes that may be
due as a
result of the Option exercise or the sale of Shares acquired
upon exercise
of this Option.
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Restrictions
on Resale
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By
signing this Agreement, you agree not to exercise this Option
or sell any
Shares acquired upon exercise of this Option at a time when applicable
laws, regulations or Company or underwriter trading policies
prohibit
exercise or sale. In particular, the Company shall have the right
to
designate one or more periods of time, each of which shall not
exceed 180
days in length, during which this Option shall not be exercisable
if the
Company determines (in its sole discretion) that such limitation
on
exercise could in any way facilitate a lessening of any restriction
on
transfer pursuant to the Securities Act or any state securities
laws with
respect to any issuance of securities by the Company, facilitate
the
registration or qualification of any securities by the Company
under the
Securities Act or any state securities laws, or facilitate the
perfection
of any exemption from the registration or qualification requirements
of
the Securities Act or any applicable state securities laws for
the
issuance or transfer of any securities. Such limitation on exercise
shall
not alter the vesting schedule set forth in this Agreement other
than to
limit the periods during which this Option shall be
exercisable.
Furthermore,
in respect of any underwritten public offering by the Company,
you agree
that you will not sell or otherwise transfer or dispose of any
Shares
covered by this Option during a reasonable and customary period
of time as
agreed to by the Company and the underwriters, not to exceed
the greater
of (a) 180 days following the effective date of the registration
statement
of the Company filed under the Securities Act in respect of such
offering
and (b) such other period of time as agreed to by holders of
a majority of
the then outstanding Shares. By signing this Agreement you agree
to
execute and deliver such other agreements as may be reasonably
requested
by the Company or the underwriter which are consistent with the
foregoing
or which are necessary to give further effect thereto. The Company
may
impose stop-transfer instructions with respect to the Shares
subject to
the foregoing restriction until the end of such period.
If
the sale of Shares under the Plan is not registered under the
Securities
Act of 1933, as amended (the “Securities Act”), but an exemption is
available which requires an investment or other representation,
you shall
represent and agree at the time of exercise that the Shares being
acquired
upon exercise of this Option are being acquired for investment,
and not
with a view to the sale or distribution thereof, and shall make
such other
representations as are deemed necessary or appropriate by the
Company and
its counsel.
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The
Company’s Right of First Refusal
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In
the event that you propose to sell, pledge or otherwise transfer
to a
third party any Shares acquired under this Agreement, or any
interest in
such Shares, the Company shall have the “Right of First Refusal” with
respect to all (and not less than all) of such Shares. If you
desire to
transfer Shares acquired under this Agreement, you must give
a written
“Transfer Notice” to the Company describing fully the proposed transfer,
including the number of Shares proposed to be transferred, the
proposed
transfer price and the name and address of the proposed transferee.
The
Transfer Notice shall be signed both by you and by the proposed
transferee
and must constitute a binding commitment of both parties to the
transfer
of the Shares.
The
Company and its assignees shall have the right to purchase all,
and not
less than all, of the Shares on the terms described in the Transfer
Notice
(subject, however, to any change in such terms permitted in the
next
paragraph) by delivery of a Notice of Exercise of the Right of
First
Refusal within 30 days after the date when the Transfer Notice
was
received by the Company. The Company’s rights under this Subsection shall
be freely assignable, in whole or in part.
If
the Company fails to exercise its Right of First Refusal within
30 days
after the date when it received the Transfer Notice, you may,
not later
than 60 days following receipt of the Transfer Notice by the
Company,
conclude a transfer of the Shares subject to the Transfer Notice
on the
terms and conditions described in the Transfer Notice. Any proposed
transfer on terms and conditions different from those described
in the
Transfer Notice, as well as any subsequent proposed transfer
by you, shall
again be subject to the Right of First Refusal and shall require
compliance with the procedure described in the paragraph above.
If the
Company exercises its Right of First Refusal, you and the Company
(or its
assignees) shall consummate the sale of the Shares on the terms
set forth
in the Transfer Notice.
The
Company’s Right of First Refusal shall inure to the benefit of its
successors and assigns and shall be binding upon any transferee
of the
Shares.
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Right
of Repurchase
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Following
termination of your Service for any reason, the Company shall
have the
right to purchase all of those vested Shares that you have
or will acquire
under this Option (unvested Shares which have been exercised
are subject
to a Repurchase Option set forth in Exhibit
A).
If the Company fails to provide you with written notice of
its intention
to purchase such Shares before or within 30 days of the date
the Company
receives written notice from you of your termination of Service,
the
Company’s right to purchase such Shares shall terminate. If the Company
exercises its right to purchase such Shares, the Company will
consummate
the purchase of such Shares within 60 days of the date of its
written
notice to you. The purchase price for any Shares repurchased
shall be the
higher of the fair market value of the Shares on the date of
purchase or
the aggregate Exercise Price for such Shares and shall be paid
in cash.
The Company’s right of repurchase shall terminate in the event that Stock
is listed on an established stock exchange or is quoted regularly
on the
Nasdaq National Market. The fair market value shall be determined
by the
Board of Directors in its sole discretion.
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Transfer
of Option
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Prior
to your death, only you may exercise this Option. You cannot
transfer or
assign this Option. For instance, you may not sell this Option
or use it
as security for a loan. If you attempt to do any of these things,
this
Option will immediately become invalid. You may, however, dispose
of this
Option in your will.
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Regardless
of any marital property settlement agreement, the Company is
not obligated
to honor a Notice of Exercise from your spouse or former spouse,
nor is
the Company obligated to recognize such individual’s interest in your
Option in any other way.
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Retention
Rights
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This
Agreement does not give you the right to be retained by the
Company in any
capacity. The Company reserves the right to terminate your
Service at any
time and for any reason.
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Shareholder
Rights
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Neither
you, nor your estate or heirs, have any rights as a shareholder
of the
Company until a certificate for the Shares acquired upon exercise
of this
Option has been issued. No adjustments are made for dividends
or other
rights if the applicable record date occurs before your stock
certificate
is issued, except as described in the Plan.
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Adjustments
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In
the event of a stock split, a stock dividend or a similar change
in the
Company’s Stock, the number of Shares covered by this Option and the
Exercise Price per share may be adjusted pursuant to the Plan.
Your Option
shall be subject to the terms of the agreement of merger, liquidation
or
reorganization in the event the Company is subject to such
corporate
activity.
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Legends
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All
certificates representing the Shares issued upon exercise of
this Option
shall, where applicable, have endorsed thereon the following
legends:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES
SET FORTH IN
AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER,
OR SUCH
HOLDER’S PREDECESSOR IN INTEREST. SUCH AGREEMENT IMPOSES CERTAIN TRANSFER
RESTRICTIONS AND GRANTS CERTAIN REPURCHASE RIGHTS TO THE COMPANY
(OR ITS
ASSIGNS) UPON THE SALE OF THE SHARES OR UPON TERMINATION OF
SERVICE WITH
THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO
THE SECRETARY
OF THE COMPANY BY THE HOLDER OF SHARES REPRESENTED BY THIS
CERTIFICATE.
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER
THE SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF ANY STATE,
AND MAY
BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT
TO THE
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR
IF THE COMPANY
IS PROVIDED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY
AND ITS
COUNSEL, THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL
AND STATE
SECURITIES LAWS IS NOT REQUIRED.”
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Applicable
Law
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This
Agreement will be interpreted and enforced under the laws of
the State of
Georgia (without regard to their choice of law
provisions).
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The
Plan and Other Agreements
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The
text of the Plan is incorporated in this Agreement by reference.
Certain
capitalized terms used in this Agreement are defined in the
Plan.
This
Agreement, including its attachments, and the Plan constitute
the entire
understanding between you and the Company regarding this Option.
Any prior
agreements, commitments or negotiations concerning this Option
are
superseded.
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By
signing the cover sheet of this Agreement, you agree to all of the terms and
conditions described above and in the Plan. You also acknowledge that you have
read Section 11, “Purchaser’s Investment Representations” of Attachment A and
that you can and hereby do make the same representations with respect to the
grant of this Option.
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