Exhibit 10.4
XXXXX'X LIQUID GOLD-INC.
2005 INCENTIVE STOCK PLAN
INCENTIVE STOCK OPTION AGREEMENT
PARTICIPANT:
DATE OF GRANT:
AGREEMENT between Xxxxx'x Liquid Gold-Inc. (the "Company"), and the
above named Participant ("Participant"), an employee of the Company or a
Subsidiary thereof.
The Company and Participant agree as follows:
1. Grant of Option.
Participant is hereby granted an Incentive Stock Option, within the
meaning of Section 422 of the Code (the "Option"), to purchase Common
Stock of the Company pursuant to the Xxxxx'x Liquid Gold-Inc. 2005
Incentive Stock Plan (the "Plan"). The Option and this Agreement are
subject to and shall be construed in accordance with the terms and
conditions of the Plan, as now or hereinafter in effect. Any terms
which are used in this Agreement without being defined and which are
defined in the Plan shall have the meaning specified in the Plan.
2. Date of Grant.
The date of the grant of the Option is the date first set forth
above.
3. Number and Price of Shares.
The number of shares as to which the Option is granted is the
number set forth in Schedule 3A to this Agreement. The purchase price
per share is the amount set forth in Schedule 3B to this Agreement.
4. Expiration Date.
Unless sooner terminated as provided in Sections 4.6, 9, 10 and
13.3 of the Plan, the Option shall expire and terminate on the date set
forth in Schedule 4 to this Agreement, and in no event shall the Option
be exercisable after that date.
5. Manner of Exercise.
Except as provided in this Agreement, the Option shall be
exercisable, in whole or in part, from time to time, in the manner
provided in Section 6.3 of the Plan.
6. Time of Exercise.
(a) The Option granted hereby shall become vested in and
exercisable by Participant in the installments, on the dates and
subject to the conditions set forth in Schedule 6 to this Agreement;
provided, however, that Participant must have been in Continuous
Service from the date of grant of the Option until the date specified
on Schedule 6 or until the conditions specified on Schedule 6 have been
satisfied.
(b) Upon a Change in Control, this Option shall become fully
and immediately vested and exercisable. Notwithstanding the foregoing,
in accordance with Section 10.2 of the Plan, there shall not be a
Change of Control for purposes of this Subsection (b) and thus no
acceleration of vesting if (A) the transaction or transactions which
would otherwise result in a Change of Control are not a complete
dissolution or liquidation of the Company or stockholder approval of a
complete dissolution or liquidation, (B) the persons and entities who are
stockholders of the Company immediately before such transaction or
transactions continue to own, directly or indirectly, more than 2/3 of
the outstanding voting securities of the corporation resulting from such
transaction or transactions in substantially the same proportion as their
ownership of the voting securities of the Company outstanding immediately
before such transaction or transactions and (C) the Company and its
Subsidiaries continue operations of an active business immediately after
such transaction or transactions. The Committee's reasonable
determination as to whether an event described in this subsection
(b) has occurred shall be final and conclusive.
7. Nontransferability of Option.
The Option is not transferable by Participant other than by Will
or the laws of descent and distribution, and the Option shall be
exercisable during Participant's lifetime only by Participant. Upon
any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of the Option contrary to the provisions hereof, or upon the
levy of any attachment or similar process upon the Option, the Option
shall immediately become null and void.
8. Withholding for Taxes.
Participant shall reimburse the Company, in cash or by personal
check to the order of the Company, for any federal, state or local taxes
required by law to be withheld with respect to the exercise of the
Option or any disqualifying disposition of the Common Stock acquired
upon exercise of the Option. The Company or the Subsidiary by whom
Participant is employed shall have the right to deduct from any salary
or other payments to be made to Participant any federal, state or local
taxes required by law to be so withheld. The Company's obligation to
deliver a certificate representing the Common Stock acquired upon
exercise of the Option is subject to the payment by Participant of any
applicable federal, state and local withholding tax.
9. Legends.
Certificates representing Common Stock acquired upon exercise of
this Option may contain such legends and transfer restrictions as the
Company shall deem reasonably necessary or desirable, including, without
limitation, legends restricting transfer of the Common Stock until there
has been compliance with federal and state securities laws and until
Participant or any other holder of the Common Stock has paid the Company
such amounts as may be necessary in order to satisfy any withholding tax
liability of the Company resulting from a disqualifying disposition
described in Section 422(a) of the Code.
10. Employee Benefits.
Participant agrees that the grant and vesting of the Option and the
receipt of shares of Common Stock upon exercise of the Option will
constitute special incentive compensation that will not be taken into
account as "salary" or "compensation" or "bonus" in determining the
amount of any payment under any pension, retirement, profit sharing or
other remuneration plan of the Company or any Subsidiary.
11. Amendment.
Subject to the terms and conditions of the Plan, the Board of
Directors may modify the Option, or accept the surrender of the Option
to the extent not theretofore exercised and authorize the granting of
new Options in substitution therefor, except that no such action shall
diminish or impair the rights under the Option without the consent of the
Participant.
12. Interpretation.
The interpretations and constructions of any provision of and
determinations on any question arising under the Plan or this Agreement
shall be made by the Board of Directors, and all such interpretations,
constructions and determinations shall be final and conclusive as to all
parties.
13. Receipt of Plan.
By entering into this Agreement, Participant acknowledges:
(i) that he or she has received and read a copy of the Plan; and
(ii) that this Agreement is subject to and shall be construed in
accordance with the terms and conditions of the Plan, as now or
hereinafter in effect.
14. Governing Law.
This Agreement shall be construed and shall take effect in
accordance with the laws of the State of Colorado, without regard to
the conflicts of laws rules of such State.
15. Miscellaneous.
This Agreement constitutes the entire understanding and agreement
of the parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements or understandings, inducements
or conditions, express or implied, written or oral, between the parties
with respect hereto. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid
or unenforceable, the remainder of this Agreement and the application
of such provision to other circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto. All notices or
other communications which are required to be given or may be given to
either party pursuant to the terms of this Agreement shall be in writing
and shall be delivered personally or by registered or certified mail,
postage prepaid, to the address of the parties as set forth following
the signature of such party. Notice shall be deemed given on the date
of delivery in the case of personal delivery or on the delivery or
refusal date as specified on the return receipt in the case of
registered or certified mail. Either party may change its address for
such communications by giving notice thereof to the other party in
conformity with this Section 15.
IN WITNESS WHEREOF, the Company by a duly authorized officer of
the Company and Participant have executed this Agreement on __________,
effective as of the date of grant.
XXXXX'X LIQUID GOLD-INC.
By:
PARTICIPANT
SCHEDULES
TO
INCENTIVE STOCK OPTION AGREEMENT
Schedule
3A Number of Shares of Stock:
3B Purchase Price per Share:
4 Expiration Date:
6 Vesting Schedule: The following shall vest monthly on the same
date in the month as the Date of Grant, commencing one month after the
Date of Grant: 1/48 of the total number of shares subject to this Option.
7 Additional Conditions to Vesting: Notwithstanding the foregoing,
no portion of the Option shall be vested and exercisable until the
following conditions have been satisfied:
None
Optionee Name
Street Address
City, State Zip Code
