EXHIBIT 2.7
GRANT DATE: JUNE __, 2004
NON-STATUTORY STOCK OPTION
GRANTED BY
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
UNDER THE
2004 STOCK INCENTIVE PLAN
For valuable consideration, the receipt of which is hereby
acknowledged, ▇▇▇▇▇▇▇▇ Technologies, Inc., a Florida corporation (hereinafter
together with its subsidiaries, where the context permits, referred to as the
"COMPANY"), hereby grants to the Holder named in SCHEDULE A attached hereto the
following Non-Statutory Stock Option:
SECTION 1. GRANT OF OPTION. Subject to the terms and conditions
hereinafter set forth, the Holder is hereby given the right and option to
purchase from the Company shares of the Company's Common Stock, $0.0001par value
per share (the "COMMON STOCK"). Schedule A attached hereto and hereby
incorporated herein sets forth with respect to this Option its expiration date,
its exercise price per share, the maximum number of shares that the Holder may
purchase upon exercise hereof, the vesting schedule and certain other terms and
conditions applicable to this Option and incorporated herein. This Option shall
terminate in all respects, and all rights and options to purchase shares
hereunder shall terminate, ten years from the Grant Date set forth above. The
right to purchase shares hereunder shall be cumulative.
This Option is and shall be subject in every respect to the provisions
of the Company's 2004 Stock Incentive Plan (the "PLAN"), as amended from time to
time, which is incorporated herein by reference and made a part hereof. The
Holder hereby accepts this Option subject to all the terms and provisions of the
Plan and agrees that (i) in the event of any conflict between the terms hereof
and those of the Plan, the latter shall prevail, and (ii) all decisions under
and interpretations of the Plan by the Board of Directors of the Company (the
"BOARD") or the Committee shall be final, binding and conclusive upon the Holder
and his heirs and legal representatives. References herein to the "COMMITTEE"
shall mean the Committee as defined in the Plan.
SECTION 2. EXERCISE OF OPTION. This Option may be exercised only to the
extent such Option has vested pursuant to the terms of Section 1 Purchase of any
shares hereunder shall be made by delivery to the Company of a written notice of
exercise (the "NOTICE") setting forth the number of shares with respect to which
the Option is being exercised and the address to which the certificate for such
shares is to be mailed, accompanied by:
-1-
(i) cash, certified or bank check or postal money order
payable to the order of the Company for an amount equal to the Option
price of such shares;
(ii) with the consent of the Committee, shares of Common Stock
of the Company which (A) either have been purchased by the Holder on
the open market, or (B) have been beneficially owned by the Holder for
a period of at least six months and are not then subject to restriction
under any Company plan ("MATURE SHARES"); such surrendered shares shall
on the day of their surrender have a fair market value equal to or less
than the Option price of such shares and shall be accompanied by cash
or a certified or bank check or postal money order in an amount equal
to the difference, if any, between the Option price of such shares and
such aggregate fair market value.
(iii) with the consent of the Committee, a personal recourse
note issued by the Holder to the Company in a principal amount equal to
such aggregate exercise price and with such other terms, including
interest rate and maturity, as the Company may determine in its
discretion, provided that the interest rate borne by such note shall
not be less than the lowest applicable federal rate, as defined in
Section 1274(d) of the Internal Revenue Code of 1986, as amended;
(iv) with the consent of the Committee, if the class of Common
Stock is registered under the Securities Exchange Act of 1934 at that
time, subject to rules as may be established by the Committee,
irrevocable instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company for the purchase
price;
(v) with the consent of the Committee, instructions to reduce
the number of shares otherwise issuable to the Holder upon the exercise
of the Option by a number of shares of Common Stock having a fair
market value on the date of such exercise equal to the aggregate
exercise price; provided, however, that the Holder otherwise owns an
equal number of mature shares; or
(vi) with the consent of the Committee, a combination of (i),
(ii), (iii), (iv) and/or (v).
For the purpose of this Option, the fair market value per share of the
Common Stock on a given day shall be the closing price per share of the Common
Stock on such day on all securities exchanges on which such security may at the
time be listed, or if the Common Stock is not listed, the closing price quoted
by Nasdaq, or, if the Common Stock is not quoted by Nasdaq, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization; PROVIDED, that (i) if there is no trading on
such date, fair market value shall be deemed to be the closing price per share
on the last preceding date on which the Common Stock was traded and (ii) if the
Common Stock is not listed, quoted or reported, the fair market value of the
Common Stock shall be determined in good faith by the Committee.
-2-
SECTION 3. CONDITIONS AND LIMITATIONS. The Company, in its discretion,
may file a registration statement on Form S-8 under the Securities Act of 1933
to register shares of Common Stock reserved for issuance under the Plan. At any
time at which such a registration statement is not in effect, it shall be an
additional condition precedent to any exercise of this Option that the Holder
shall deliver to the Company a customary "investment letter" satisfactory to the
Company and its counsel in which, among other things, the Holder shall state
that the Holder is purchasing the shares for investment and acknowledges that
they are not freely transferable except in compliance with state and federal
securities laws.
SECTION 4. DELIVERY OF SHARES. Within a reasonable time after receipt
by the Company of the Notice and payment for any shares to be purchased
hereunder and, if required as a condition to exercise, the investment letter
described in Section 3, the Company will deliver or cause to be delivered to the
Holder (or if any other individual or individuals are exercising this Option, to
such individual or individuals) at the address specified in the Notice a
certificate or certificates for the number of shares with respect to which the
Option is then being exercised, registered in the name or names of the
individual or individuals exercising the Option, either alone or jointly with
another person or persons with rights of survivorship, as the individual or
individuals exercising the Option shall prescribe in writing to the Company at
or prior to such purchase; PROVIDED, HOWEVER, that if any law or regulation or
order of the Securities and Exchange Commission or other body having
jurisdiction in the premises shall require the Company or the Holder (or the
individual or individuals exercising this Option) to take any action in
connection with the shares then being purchased, the date for the delivery of
the certificates for such shares shall be extended for the period necessary to
take and complete such action, it being understood that the Company shall have
no obligation to take and complete any such action. The Company may imprint upon
such certificate the legend set forth in the Plan or such other legends
referencing stock transfer restrictions which counsel for the Company considers
appropriate. Delivery by the Company of the certificates for such shares shall
be deemed effected for all purposes when the Company or a stock transfer agent
of the Company shall have deposited such certificates in the United States mail,
addressed to the Holder, at the address specified in the Notice.
SECTION 5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The existence of
this Option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of Common
Stock, or any issue of bonds, debentures, preferred or prior preference stock or
other capital stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
If the Company shall effect a stock dividend, stock split or similar
change in capitalization affecting the shares of Common Stock outstanding, in
any such case without receiving compensation therefor in money, services or
property, then the number, class, and price per share of shares of Common Stock
subject to this Option shall be appropriately adjusted in such a manner as to
entitle the Holder to receive upon exercise of this Option, for the same
aggregate cash consideration, the same total number and class of shares as the
-3-
Holder would have received as a result of the event requiring the adjustment had
the Holder exercised this Option in full immediately prior to such event.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
the conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
therefor shall be made with respect to, the number or price of shares of Common
Stock then subject to option.
SECTION 6. EFFECT OF CERTAIN TRANSACTIONS. After a merger of one or
more corporations with or into the Company or after a consolidation of the
Company and one or more corporations in which the stockholders of the Company
immediately prior to such merger or consolidation own after such merger or
consolidation shares representing at least fifty percent (50%) of the voting
power of the Company or the surviving or resulting corporation, as the case may
be, the Holder shall, at no additional cost, be entitled upon exercise of this
Option to receive in lieu of the shares of Common Stock as to which this Option
was exercisable immediately prior to such event, the number and class of shares
of stock or other securities, cash or property (including, without limitation,
shares of stock or other securities of another corporation or Common Stock) to
which the Holder would have been entitled pursuant to the terms of the agreement
of merger or consolidation if, immediately prior to such merger or
consolidation, the Holder had been the holder of record of a number of shares of
Common Stock equal to the number of shares then issuable upon exercise of this
Option.
If the Company is merged with or into or consolidated with another
corporation, other than a merger or consolidation in which the stockholders of
the Company immediately prior to such merger or consolidation continue to own
after such merger or consolidation shares representing at least fifty percent
(50%) of the voting power of the Company or the surviving or resulting
corporation, as the case may be, or if the Company is liquidated, or sells or
otherwise disposes of substantially all its assets to another corporation while
this Option remains outstanding, then:
(i) subject to the provisions of clause (iii) below, after the
effective date of such merger, consolidation, liquidation, sale or
disposition, as the case may be, the Holder of this Option shall be
entitled, upon exercise of this Option, to receive, in lieu of the
shares of Common Stock as to which this Option was exercisable
immediately prior to such event, the number and class of shares of
stock or other securities, cash or property (including, without
limitation, shares of stock or other securities of another corporation
or Common Stock) to which the Holder would have been entitled pursuant
to the terms of the merger, consolidation, liquidation, sale or
disposition if, immediately prior to such event, the Holder had been
the holder of a number of shares of Common Stock equal to the number of
shares then issuable upon exercise of this Option;
(ii) the Committee may accelerate the time for exercise of
this Option, so that from and after a date prior to the effective date
of such merger, consolidation, liquidation, sale or disposition, as the
case may be, specified by the Committee, such accelerated Options shall
be exercisable in full; or
-4-
(iii) this Option may be canceled by the Committee as of the
effective date of any such merger, consolidation, liquidation, sale or
disposition provided that (A) notice of such cancellation shall be
given to the Holder and (B) the Holder shall have the right to exercise
this Option to the extent that the same is then exercisable or, if the
Committee shall have accelerated the time for exercise of this Option
pursuant to clause (ii) above, in full during the 10-day period
preceding the effective date of such merger, consolidation,
liquidation, sale or disposition.
SECTION 7. RIGHTS OF HOLDER. No person shall, by virtue of the granting
of this Option to the Holder, be deemed to be a holder of any shares purchasable
under this Option or to be entitled to the rights or privileges of a holder of
such shares unless and until this Option has been exercised with respect to such
shares and such shares have been issued pursuant to that exercise of this
Option.
The granting of this Option shall not impose upon the Company any
obligations to employ or to continue to employ the Holder; and the right of the
Company to terminate the services of the Holder shall not be diminished or
affected by reason of the fact that this Option has been granted to the Holder.
The Company shall, at all times while any portion of this Option is
outstanding, reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its Common
Stock to satisfy the requirements of this Option; shall comply with the terms of
this Option promptly upon exercise of the Option rights; and shall pay all fees
or expenses necessarily incurred by the Company in connection with the issuance
and delivery of shares pursuant to the exercise of this Option.
SECTION 8. TRANSFER AND TERMINATION. This Option is not transferable by
the Holder otherwise than by will or under the laws of descent and distribution.
This Option is exercisable, during the Holder's lifetime, only by the
Holder, and by the Holder only while the Holder is providing services to the
Company, except that if the Holder's services with the Company terminates for
any reason other than death, Disability (as defined in the Plan), Normal
Retirement (as defined in the Plan) or for Cause, the Holder shall have the
right to exercise this Option within thirty (30) days after the date of such
termination of services (but not later than the expiration date of this Option)
with respect to shares which were purchasable by the Holder by exercise of this
Option at the time of said termination of services.
As used herein, "CAUSE" shall mean (i) any material breach by the
Holder of any agreement to which the Holder and the Company (or any parent or
subsidiary) are both parties, (ii) any act (other than retirement) or omission
to act by the Holder which may have a material and adverse effect on the
business of the Company (or any parent or subsidiary) or on the Holder's ability
to perform services for the Company (or any parent or subsidiary), including,
without limitation, the commission of any crime (other than ordinary traffic
violations), (iii) any material misconduct or material neglect of duties by the
Holder in connection with the business or affairs of the Company (or any parent
or subsidiary) or any affiliate of the Company (or any such parent or
subsidiary), or (iv) any other act that constitutes "Cause" or the like under
-5-
any employment or similar agreement between the Holder and the Company (or any
parent or subsidiary).
In the event of the Normal Retirement or Disability of the Holder while
the Holder is in the employ of the Company (or any parent or subsidiary of the
Company) and before the expiration date of this Option, this Option shall
terminate on the earlier of its expiration date or ninety (90) days from the
date of said Normal Retirement or Disability.
In the event of the death of the Holder while the Holder is in the
employ of the Company (or any parent or subsidiary of the Company) and before
the expiration date of this Option, this Option shall terminate on the earlier
of its expiration date or a date one hundred eighty (180) days after the date of
his or her death. After the death of the Holder, the Holder's executors,
administrators or any person or persons to whom the Holder's Option has been
transferred by will or by the laws of descent and distribution shall have the
right to exercise this Option at any time prior to the earlier of the date of
expiration of this Option or one hundred eighty (180) days after the date of the
death of the original Holder.
SECTION 9. WITHHOLDING OF TAXES
9.1. NON-STATUTORY OPTION. The Holder hereby agrees that the Company
may withhold from the Holder's wages, or other amounts due to the Holder from
the Company, the appropriate amount of federal, state and local withholding
taxes attributable to the Holder's exercise of this Option.
9.2. ELECTION AS TO METHOD OF SATISFYING WITHHOLDING OBLIGATION. At the
Holder's election, the amount required to be withheld may be satisfied, in whole
or in part, by (A) authorizing the Company to withhold from shares of Common
Stock to be issued pursuant to the exercise of such Non-Statutory Option a
number of shares with an aggregate fair market value that would satisfy the
minimum withholding amount due with respect to such exercise, or (B)
transferring to the Company a sufficient number of mature shares of Common Stock
with an aggregate fair market value that would satisfy the minimum withholding
amount due.
9.3. AGREEMENT TO REIMBURSE COMPANY FOR WITHHOLDING OBLIGATION. The
Holder further agrees that, if the Company does not withhold an amount from the
Holder's wages sufficient to satisfy the Company's withholding obligation, the
Holder will reimburse the Company on demand, in cash, for the amount
underwithheld.
SECTION 10. NOTICE. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company and delivered by hand or
by mail to the Chief Executive Officer of the Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as the Company may
hereafter designate.
Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder or when
deposited in the mail, postage prepaid, addressed to the Holder at the Holder's
address furnished to the Company.
-6-
SECTION 11. GOVERNMENT AND OTHER REGULATIONS. This Option is subject to
all laws, regulations and orders of any governmental authority which may be
applicable thereto and, notwithstanding any of the provisions hereof, the Holder
agrees that the Holder will not exercise the Option granted hereby nor will the
Company be obligated to issue or sell any shares of stock hereunder if the
exercise thereof or the issuance or sale of such shares, as the case may be,
would constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof. The Company shall not be obligated
to take any affirmative action in order to cause the exercise of this Option or
the issuance or sale of shares pursuant hereto to comply with any such law,
regulation, order or provision.
SECTION 12. GOVERNING LAW; VENUE. This Option shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Florida. Any action at law, suit in equity or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or
from this Option, or any provision hereof, shall be litigated only in the state
courts located in the Commonwealth of Virginia, County of Fairfax or the federal
courts in the district which covers such county. The Holder and the Company
consent to the jurisdiction of such courts.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date first written above.
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
By:_________________________________________
Its:________________________________________
-7-
SCHEDULE A
----------
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
Non-Statutory Stock Option
DATE OF GRANT: June __, 2004
NAME OF HOLDER:_______________________________________________________________
ADDRESS:______________________________________________________________________
CITY, STATE, ZIP:_____________________________________________________________
SOCIAL SECURITY NUMBER:_____________________________________
MAXIMUM NUMBER OF SHARES FOR WHICH THIS OPTION IS EXERCISABLE: [Retained
Executive's share multiplied by a fraction, the numerator of which is
$4,000,000.00 and the denominator of which is the fair market value of the
Common Stock on the Date of Grant.]
EXERCISE (PURCHASE) PRICE PER SHARE: $0.3775
EXPIRATION DATE OF OPTION: June __, 2014
VESTING RATE: This Option shall become exercisable for 20% of the maximum number
of shares granted on the first anniversary of the Date of Grant, and shall
become exercisable for an additional 20% on the last day of each year
thereafter; so that the Option shall be fully vested on the fifth anniversary of
the Date of ▇▇▇▇▇. All vesting shall cease upon the date of termination of
employment.
POSITION IN, OR RELATIONSHIP TO, THE COMPANY:
OTHER TERMS AND CONDITIONS: The Holder agrees that upon request of the Company
or the underwriters managing any underwritten offering of the Company's
securities, the Holder shall agree in writing that for a period of time not to
exceed one hundred eighty (180) days from the effective date of any registration
of securities of the Company the Holder will not sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose of any shares
of Common Stock issued pursuant to the exercise of this Option without the prior
written consent of the Company or such underwriters, as the case may be.
* * *
The undersigned Holder acknowledges receipt of the Stock Option of which this
SCHEDULE A is a part.
______________________________________________________
▇▇▇▇▇▇'s Signature
Print Name:___________________________________________
GRANT DATE: JUNE __, 2004
NON-STATUTORY STOCK OPTION
GRANTED BY
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
UNDER THE
2004 STOCK INCENTIVE PLAN
For valuable consideration, the receipt of which is hereby
acknowledged, ▇▇▇▇▇▇▇▇ Technologies, Inc., a Florida corporation (hereinafter
together with its subsidiaries, where the context permits, referred to as the
"COMPANY"), hereby grants to the Holder named in SCHEDULE A attached hereto the
following Non-Statutory Stock Option:
SECTION 1. GRANT OF OPTION. Subject to the terms and conditions
hereinafter set forth, the Holder is hereby given the right and option to
purchase from the Company shares of the Company's Common Stock, $0.0001par value
per share (the "COMMON STOCK"). Schedule A attached hereto and hereby
incorporated herein sets forth with respect to this Option its expiration date,
its exercise price per share, the maximum number of shares that the Holder may
purchase upon exercise hereof, the vesting schedule and certain other terms and
conditions applicable to this Option and incorporated herein. This Option shall
terminate in all respects, and all rights and options to purchase shares
hereunder shall terminate, ten years from the Grant Date set forth above. The
right to purchase shares hereunder shall be cumulative.
This Option is and shall be subject in every respect to the provisions
of the Company's 2004 Stock Incentive Plan (the "PLAN"), as amended from time to
time, which is incorporated herein by reference and made a part hereof. The
Holder hereby accepts this Option subject to all the terms and provisions of the
Plan and agrees that (i) in the event of any conflict between the terms hereof
and those of the Plan, the latter shall prevail, and (ii) all decisions under
and interpretations of the Plan by the Board of Directors of the Company (the
"BOARD") or the Committee shall be final, binding and conclusive upon the Holder
and his heirs and legal representatives. References herein to the "COMMITTEE"
shall mean the Committee as defined in the Plan.
SECTION 2. EXERCISE OF OPTION. This Option may be exercised only to the
extent such Option has vested pursuant to the terms of Section 1 Purchase of any
shares hereunder shall be made by delivery to the Company of a written notice of
exercise (the "NOTICE") setting forth the number of shares with respect to which
the Option is being exercised and the address to which the certificate for such
shares is to be mailed, accompanied by:
-1-
(i) cash, certified or bank check or postal money order
payable to the order of the Company for an amount equal to the Option
price of such shares;
(ii) with the consent of the Committee, shares of Common Stock
of the Company which (A) either have been purchased by the Holder on
the open market, or (B) have been beneficially owned by the Holder for
a period of at least six months and are not then subject to restriction
under any Company plan ("MATURE SHARES"); such surrendered shares shall
on the day of their surrender have a fair market value equal to or less
than the Option price of such shares and shall be accompanied by cash
or a certified or bank check or postal money order in an amount equal
to the difference, if any, between the Option price of such shares and
such aggregate fair market value.
(iii) with the consent of the Committee, a personal recourse
note issued by the Holder to the Company in a principal amount equal to
such aggregate exercise price and with such other terms, including
interest rate and maturity, as the Company may determine in its
discretion, provided that the interest rate borne by such note shall
not be less than the lowest applicable federal rate, as defined in
Section 1274(d) of the Internal Revenue Code of 1986, as amended;
(iv) with the consent of the Committee, if the class of Common
Stock is registered under the Securities Exchange Act of 1934 at that
time, subject to rules as may be established by the Committee,
irrevocable instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company for the purchase
price;
(v) with the consent of the Committee, instructions to reduce
the number of shares otherwise issuable to the Holder upon the exercise
of the Option by a number of shares of Common Stock having a fair
market value on the date of such exercise equal to the aggregate
exercise price; provided, however, that the Holder otherwise owns an
equal number of mature shares; or
(vi) with the consent of the Committee, a combination of (i),
(ii), (iii), (iv) and/or (v).
For the purpose of this Option, the fair market value per share of the
Common Stock on a given day shall be the closing price per share of the Common
Stock on such day on all securities exchanges on which such security may at the
time be listed, or if the Common Stock is not listed, the closing price quoted
by Nasdaq, or, if the Common Stock is not quoted by Nasdaq, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization; PROVIDED, that (i) if there is no trading on
such date, fair market value shall be deemed to be the closing price per share
on the last preceding date on which the Common Stock was traded and (ii) if the
Common Stock is not listed, quoted or reported, the fair market value of the
Common Stock shall be determined in good faith by the Committee.
-2-
SECTION 3. CONDITIONS AND LIMITATIONS. The Company, in its discretion,
may file a registration statement on Form S-8 under the Securities Act of 1933
to register shares of Common Stock reserved for issuance under the Plan. At any
time at which such a registration statement is not in effect, it shall be an
additional condition precedent to any exercise of this Option that the Holder
shall deliver to the Company a customary "investment letter" satisfactory to the
Company and its counsel in which, among other things, the Holder shall state
that the Holder is purchasing the shares for investment and acknowledges that
they are not freely transferable except in compliance with state and federal
securities laws.
SECTION 4. DELIVERY OF SHARES. Within a reasonable time after receipt
by the Company of the Notice and payment for any shares to be purchased
hereunder and, if required as a condition to exercise, the investment letter
described in Section 3, the Company will deliver or cause to be delivered to the
Holder (or if any other individual or individuals are exercising this Option, to
such individual or individuals) at the address specified in the Notice a
certificate or certificates for the number of shares with respect to which the
Option is then being exercised, registered in the name or names of the
individual or individuals exercising the Option, either alone or jointly with
another person or persons with rights of survivorship, as the individual or
individuals exercising the Option shall prescribe in writing to the Company at
or prior to such purchase; PROVIDED, HOWEVER, that if any law or regulation or
order of the Securities and Exchange Commission or other body having
jurisdiction in the premises shall require the Company or the Holder (or the
individual or individuals exercising this Option) to take any action in
connection with the shares then being purchased, the date for the delivery of
the certificates for such shares shall be extended for the period necessary to
take and complete such action, it being understood that the Company shall have
no obligation to take and complete any such action. The Company may imprint upon
such certificate the legend set forth in the Plan or such other legends
referencing stock transfer restrictions which counsel for the Company considers
appropriate. Delivery by the Company of the certificates for such shares shall
be deemed effected for all purposes when the Company or a stock transfer agent
of the Company shall have deposited such certificates in the United States mail,
addressed to the Holder, at the address specified in the Notice.
SECTION 5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The existence of
this Option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of Common
Stock, or any issue of bonds, debentures, preferred or prior preference stock or
other capital stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
If the Company shall effect a stock dividend, stock split or similar
change in capitalization affecting the shares of Common Stock outstanding, in
any such case without receiving compensation therefor in money, services or
property, then the number, class, and price per share of shares of Common Stock
subject to this Option shall be appropriately adjusted in such a manner as to
entitle the Holder to receive upon exercise of this Option, for the same
aggregate cash consideration, the same total number and class of shares as the
Holder would have received as a result of the event requiring the adjustment had
the Holder exercised this Option in full immediately prior to such event.
-3-
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
the conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
therefor shall be made with respect to, the number or price of shares of Common
Stock then subject to option.
SECTION 6. EFFECT OF CERTAIN TRANSACTIONS. After a merger of one or
more corporations with or into the Company or after a consolidation of the
Company and one or more corporations in which the stockholders of the Company
immediately prior to such merger or consolidation own after such merger or
consolidation shares representing at least fifty percent (50%) of the voting
power of the Company or the surviving or resulting corporation, as the case may
be, the Holder shall, at no additional cost, be entitled upon exercise of this
Option to receive in lieu of the shares of Common Stock as to which this Option
was exercisable immediately prior to such event, the number and class of shares
of stock or other securities, cash or property (including, without limitation,
shares of stock or other securities of another corporation or Common Stock) to
which the Holder would have been entitled pursuant to the terms of the agreement
of merger or consolidation if, immediately prior to such merger or
consolidation, the Holder had been the holder of record of a number of shares of
Common Stock equal to the number of shares then issuable upon exercise of this
Option.
If the Company is merged with or into or consolidated with another
corporation, other than a merger or consolidation in which the stockholders of
the Company immediately prior to such merger or consolidation continue to own
after such merger or consolidation shares representing at least fifty percent
(50%) of the voting power of the Company or the surviving or resulting
corporation, as the case may be, or if the Company is liquidated, or sells or
otherwise disposes of substantially all its assets to another corporation while
this Option remains outstanding, then:
(i) subject to the provisions of clause (iii) below, after the
effective date of such merger, consolidation, liquidation, sale or
disposition, as the case may be, the Holder of this Option shall be
entitled, upon exercise of this Option, to receive, in lieu of the
shares of Common Stock as to which this Option was exercisable
immediately prior to such event, the number and class of shares of
stock or other securities, cash or property (including, without
limitation, shares of stock or other securities of another corporation
or Common Stock) to which the Holder would have been entitled pursuant
to the terms of the merger, consolidation, liquidation, sale or
disposition if, immediately prior to such event, the Holder had been
the holder of a number of shares of Common Stock equal to the number of
shares then issuable upon exercise of this Option;
(ii) the Committee may accelerate the time for exercise of
this Option, so that from and after a date prior to the effective date
of such merger, consolidation, liquidation, sale or disposition, as the
case may be, specified by the Committee, such accelerated Options shall
be exercisable in full; or
-4-
(iii) this Option may be canceled by the Committee as of the
effective date of any such merger, consolidation, liquidation, sale or
disposition provided that (A) notice of such cancellation shall be
given to the Holder and (B) the Holder shall have the right to exercise
this Option to the extent that the same is then exercisable or, if the
Committee shall have accelerated the time for exercise of this Option
pursuant to clause (ii) above, in full during the 10-day period
preceding the effective date of such merger, consolidation,
liquidation, sale or disposition.
SECTION 7. RIGHTS OF HOLDER. No person shall, by virtue of the granting
of this Option to the Holder, be deemed to be a holder of any shares purchasable
under this Option or to be entitled to the rights or privileges of a holder of
such shares unless and until this Option has been exercised with respect to such
shares and such shares have been issued pursuant to that exercise of this
Option.
The granting of this Option shall not impose upon the Company any
obligations to employ or to continue to employ the Holder; and the right of the
Company to terminate the services of the Holder shall not be diminished or
affected by reason of the fact that this Option has been granted to the Holder.
The Company shall, at all times while any portion of this Option is
outstanding, reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its Common
Stock to satisfy the requirements of this Option; shall comply with the terms of
this Option promptly upon exercise of the Option rights; and shall pay all fees
or expenses necessarily incurred by the Company in connection with the issuance
and delivery of shares pursuant to the exercise of this Option.
SECTION 8. TRANSFER AND TERMINATION. This Option is not transferable by
the Holder otherwise than by will or under the laws of descent and distribution.
This Option is exercisable, during the Holder's lifetime, only by the
Holder, and by the Holder only while the Holder is providing services to the
Company, except that if the Holder's services with the Company terminates for
any reason other than death, Disability (as defined in the Plan), Normal
Retirement (as defined in the Plan) or for Cause, the Holder shall have the
right to exercise this Option within thirty (30) days after the date of such
termination of services (but not later than the expiration date of this Option)
with respect to shares which were purchasable by the Holder by exercise of this
Option at the time of said termination of services.
As used herein, "CAUSE" shall mean (i) any material breach by the
Holder of any agreement to which the Holder and the Company (or any parent or
subsidiary) are both parties, (ii) any act (other than retirement) or omission
to act by the Holder which may have a material and adverse effect on the
business of the Company (or any parent or subsidiary) or on the Holder's ability
to perform services for the Company (or any parent or subsidiary), including,
without limitation, the commission of any crime (other than ordinary traffic
violations), (iii) any material misconduct or material neglect of duties by the
Holder in connection with the business or affairs of the Company (or any parent
or subsidiary) or any affiliate of the Company (or any such parent or
subsidiary), or (iv) any other act that constitutes "Cause" or the like under
-5-
any employment or similar agreement between the Holder and the Company (or any
parent or subsidiary).
In the event of the Normal Retirement or Disability of the Holder while
the Holder is in the employ of the Company (or any parent or subsidiary of the
Company) and before the expiration date of this Option, this Option shall
terminate on the earlier of its expiration date or ninety (90) days from the
date of said Normal Retirement or Disability.
In the event of the death of the Holder while the Holder is in the
employ of the Company (or any parent or subsidiary of the Company) and before
the expiration date of this Option, this Option shall terminate on the earlier
of its expiration date or a date one hundred eighty (180) days after the date of
his or her death. After the death of the Holder, the Holder's executors,
administrators or any person or persons to whom the Holder's Option has been
transferred by will or by the laws of descent and distribution shall have the
right to exercise this Option at any time prior to the earlier of the date of
expiration of this Option or one hundred eighty (180) days after the date of the
death of the original Holder.
SECTION 9. WITHHOLDING OF TAXES
9.1. NON-STATUTORY OPTION. The Holder hereby agrees that the Company
may withhold from the Holder's wages, or other amounts due to the Holder from
the Company, the appropriate amount of federal, state and local withholding
taxes attributable to the Holder's exercise of this Option.
9.2. ELECTION AS TO METHOD OF SATISFYING WITHHOLDING OBLIGATION. At the
Holder's election, the amount required to be withheld may be satisfied, in whole
or in part, by (A) authorizing the Company to withhold from shares of Common
Stock to be issued pursuant to the exercise of such Non-Statutory Option a
number of shares with an aggregate fair market value that would satisfy the
minimum withholding amount due with respect to such exercise, or (B)
transferring to the Company a sufficient number of mature shares of Common Stock
with an aggregate fair market value that would satisfy the minimum withholding
amount due.
9.3. AGREEMENT TO REIMBURSE COMPANY FOR WITHHOLDING OBLIGATION. The
Holder further agrees that, if the Company does not withhold an amount from the
Holder's wages sufficient to satisfy the Company's withholding obligation, the
Holder will reimburse the Company on demand, in cash, for the amount
underwithheld.
SECTION 10. NOTICE. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company and delivered by hand or
by mail to the Chief Executive Officer of the Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as the Company may
hereafter designate.
Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder or when
deposited in the mail, postage prepaid, addressed to the Holder at the Holder's
address furnished to the Company.
-6-
SECTION 11. GOVERNMENT AND OTHER REGULATIONS. This Option is subject to
all laws, regulations and orders of any governmental authority which may be
applicable thereto and, notwithstanding any of the provisions hereof, the Holder
agrees that the Holder will not exercise the Option granted hereby nor will the
Company be obligated to issue or sell any shares of stock hereunder if the
exercise thereof or the issuance or sale of such shares, as the case may be,
would constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof. The Company shall not be obligated
to take any affirmative action in order to cause the exercise of this Option or
the issuance or sale of shares pursuant hereto to comply with any such law,
regulation, order or provision.
SECTION 12. GOVERNING LAW; VENUE. This Option shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Florida. Any action at law, suit in equity or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or
from this Option, or any provision hereof, shall be litigated only in the state
courts located in the Commonwealth of Virginia, County of Fairfax or the federal
courts in the district which covers such county. The Holder and the Company
consent to the jurisdiction of such courts.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date first written above.
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
By:___________________________________________________
Its:__________________________________________________
-7-
SCHEDULE A
----------
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
Non-Statutory Stock Option
DATE OF GRANT: June __, 2004
NAME OF HOLDER:_______________________________________________________________
ADDRESS:______________________________________________________________________
CITY, STATE, ZIP:_____________________________________________________________
SOCIAL SECURITY NUMBER:______________________________
MAXIMUM NUMBER OF SHARES FOR WHICH THIS OPTION IS EXERCISABLE: [Retained
Executive's share multiplied by a fraction, the numerator of which is
$800,000.00 and the denominator of which is the fair market value of the Common
Stock on the Date of Vesting (defined below).]
EXERCISE (PURCHASE) PRICE PER SHARE: One-half of the fair market value of the
Common Stock on the Date of Vesting.
EXPIRATION DATE OF OPTION: June __, 2014
VESTING RATE: This Option shall become exercisable in full on the [_____]
anniversary of the Date of Grant (the "DATE OF VESTING"); PROVIDED, that no
vesting shall occur on or after the date of termination of employment.
POSITION IN, OR RELATIONSHIP TO, THE COMPANY:_________________________________
OTHER TERMS AND CONDITIONS: The Holder agrees that upon request of the Company
or the underwriters managing any underwritten offering of the Company's
securities, the Holder shall agree in writing that for a period of time not to
exceed one hundred eighty (180) days from the effective date of any registration
of securities of the Company the Holder will not sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose of any shares
of Common Stock issued pursuant to the exercise of this Option without the prior
written consent of the Company or such underwriters, as the case may be.
* * *
The undersigned Holder acknowledges receipt of the Stock Option of which this
SCHEDULE A is a part.
________________________________________________________
Holder's Signature
Print Name:_____________________________________________