Exhibit 4.2
VOIP, INC.
INCENTIVE STOCK OPTION AGREEMENT
pursuant to the
VOIP, INC. 2004 STOCK OPTION PLAN
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") is made and
entered into by and between VOIP, INC., a Texas corporation (the "Company"), and
__________ (the "Optionee"), effective as of ____________, 20__ (the "Date of
Grant").
1. Grant of Option. The Company hereby grants to the Optionee and the
Optionee hereby accepts, subject to the terms and conditions hereof, an
Incentive Stock Option (the "Option") to purchase up to ____________ shares of
Company's Common Stock, par value $0.001 per share (the "Common Stock"), at the
Exercise Price per share set forth in Section 4 below.
2. Governing Plan. This Option is granted pursuant to the Company's
2004 Stock Option Plan (the "Plan"), a copy of which is attached hereto as
Attachment One and incorporated herein for all purposes. Capitalized terms used
but not otherwise defined herein have the meanings as set forth in the Plan. The
Optionee agrees to be bound by the terms and conditions of the Plan, which terms
and conditions of the Plan control in case of any conflict with this Agreement,
except as otherwise specifically provided for in the Plan.
3. Expiration of the Option. The Option (to the extent not earlier
exercised or terminated in accordance with the Plan) will expire at the end of
business on September 9, 2014, which date is not in excess of ten (10) years
from the Date of Grant of the Option. The Option may terminate sooner under
certain circumstances, including termination of the Optionee's employment with
the Company and/or any Affiliated Entity, as set forth in Sections 5.13 and 5.14
of the Plan or upon certain Changes in Control, as provided in the Plan. The
Option may not be exercised after its expiration or termination.
4. Exercise Price. The "Exercise Price" of the Option is____________
($____) per share of Common Stock. The Exercise Price is subject to adjustment
or amendment as set forth in the Plan.
5. Vesting.
(a) On each Measurement Date set forth in Column 1 below, the
Option shall vest and become exercisable for the corresponding number
of shares of Common Stock set forth in Column 2 below if the Optionee's
employment with the Company and/or any Affiliated Entity has not
terminated. The "Vested Portion" of the Option as of any particular
date shall be the cumulative total of all shares for which the Option
has become exercisable as of that date.
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Column 1 Column 2
Measurement Date Vested Portion of the Option
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(b) Notwithstanding anything to the contrary contained herein
or in the Plan, in the event the Optionee's employment with a
Participating Company is terminated by Company within one (1) year
following a Change in Control for reasons other than for Cause, or if
the Optionee terminates his employment with a Participating Company for
Good Reason following a Change in Control, then, the vesting shall be
determined pursuant to the Plan.
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6. Exercise of the Option. The Vested Portion (as herein defined) of
the Option may be exercised, to the extent not previously exercised, in whole or
in part, at any time or from time to time prior to the expiration or termination
of the Option, except that no Option shall be exercisable except in respect to
whole shares, and not less than one hundred (100) shares may be purchased at one
time unless the number purchased is the total number at the time available for
purchase under the terms of the Option. Exercise shall be accomplished by
providing the Company with written notice in the form of Exhibit A hereto, which
notice shall be irrevocable when delivered and effective upon payment in full of
the Option Price in accordance with Section 6.3 of the Plan and any amounts
required in accordance with Section 6.4 of the Plan for withholding taxes, and
the satisfaction of all other conditions to exercise imposed under the Plan.
7. Nontransferability of Option. The Option shall not be transferable
or assignable by the Optionee, other than by will or the laws of descent and
distribution, and shall be exercisable during the Optionee's lifetime only by
the Optionee.
8. Administration. The Plan and this Agreement shall be administered
and may be definitively interpreted by the Board, and the Optionee agrees that
the decisions of the Board concerning administration and interpretation of the
Plan and this Agreement shall be final, binding and conclusive on all persons.
9. Notices. All notices or other communications which are required or
permitted hereunder or in the Plan shall be in writing and sufficient if (i)
personally delivered, (ii) sent by nationally recognized overnight courier or
(iii) sent by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows: (a) if to Optionee, at the address set forth on
the signature page below; or (b) if to the Company, at the address set forth in
the signature page hereto, or in either case, to such other address as the party
to whom notice is to be given may have furnished to the other party in writing
in accordance herewith. Any such communication shall be deemed to have been
given (i) when delivered, if personally delivered, (ii) on the first Business
Day (as hereinafter defined) after dispatch, if sent by nationally recognized
overnight courier and (iii) on the third Business Day following the date on
which the piece of mail containing such communication is posted, if sent by
mail. As used herein, "Business Day" means a day that is not a Saturday, Sunday
or a day on which banking institutions in the city to which the notice or
communication is to be sent are not required to be open.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
Company by its duly authorized officer, and by the Optionee in acceptance of the
above-mentioned Option, subject to the terms and conditions of the Plan and of
this Agreement, all as of the day and year first above written.
COMPANY:
VOIP, INC., a Texas corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OPTIONEE:
____________________________________________
Printed Name:
Address: ___________________________________
___________________________________
___________________________________
Telephone No.:______________________________
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EXHIBIT A
NOTICE OF EXERCISE
under
INCENTIVE STOCK OPTION AGREEMENT
issued pursuant to the
VOIP, INC. 2004 STOCK OPTION PLAN
To: VOIP, Inc. (the "Company")
From: _______________________
Date: _______________________
Pursuant to the VOIP, Inc. 2004 Stock Option Plan (the "Plan") and the
Incentive Stock Option Agreement (the "Agreement") (capitalized terms used
without definition herein have the meanings given such terms in the Agreement or
the Plan) between the Company and myself effective ______________________,
20___, I hereby exercise my Option as follows:
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Number of shares of Common Stock I wish to purchase under the Option
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Exercise Price per Share $
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Total Exercise Price $
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"Vested Portion" of Option (see definition in Section 5 of the Agreement)
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Number of shares I have previously purchased by exercising the Option
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Expiration Date of the Option
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I hereby represent, warrant, and covenant to the Company that:
(a) I am acquiring the Common Stock for my own account, for
investment, and not for distribution or resale, and I will make no
transfer of such Common Stock except in compliance with applicable
federal and state securities laws and in accordance with the provisions
of the Plan and the Agreement.
(b) I can bear the economic risk of the investment in the
Common Stock resulting from this exercise of the Option, including a
total loss of my investment.
(c) I am experienced in business and financial matters and am
capable of (i) evaluating the merits and risks of an investment in the
Common Stock; (ii) making an informed investment decision regarding
exercise of the Option; and (iii) protecting my interests in connection
therewith.
(d) Any subsequent offer for sale or distribution of any of
the shares of Common Stock shall be made only pursuant to (i) a
registration statement on an appropriate form under the Securities Act,
which registration statement has become effective and is current with
regard to the shares being offered or sold, or (ii) a specific
exemption from the registration requirements of the Securities Act, it
being understood that to the extent any such exemption is claimed, I
shall, prior to any offer for sale or sale of such shares, obtain a
prior favorable written opinion, in form and substance satisfactory to
the Administering Body, from counsel for or approved by the
Administering Body, as to the applicability of such exemption thereto.
Attached in full payment of the Exercise Price for the Option exercised
herein is (a) a check made payable to the Company in the amount of $__________
and/or (b) a stock certificate for ________ shares of Common Stock that have
been owned by me or by me and my spouse jointly for at least six months, with a
duly completed stock power attached, with a total Fair Market Value on the date
hereof to the Total Exercise Price.
OPTIONEE:
____________________________________________
Name:_______________________________________
Address: ___________________________________
___________________________________
___________________________________
RECEIVED BY THE COMPANY:
VOIP, INC., a Texas corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: ___________________________________