FIIC, INC. AND RESTRICTED STOCK PLAN STOCK OPTION AGREEMENT (SUPER EXECUTIVE)
FIIC,
INC.
2005
STOCK OPTION, DEFERRED STOCK
AND
RESTRICTED STOCK PLAN
(SUPER
EXECUTIVE)
NAME:
___________________
This
AGREEMENT is made effective as of the ___day of ___________, 20___ (the “Option
Grant Date”), by and between FIIC, Inc., a Delaware corporation (the “Company”)
and ________________ (the “Optionee”).
RECITALS
WHEREAS,
the Company has established the 2005 Stock Option, Deferred Stock and Restricted
Stock Plan (the "Plan") effective as of April 25, 2005, and
WHEREAS,
pursuant to the provisions of said Plan, the Administrator has granted to
the
Participant by action duly taken on ________ __, 20__, (the "Award Date")
a
stock option award (the "Stock Option Award") based upon the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of services rendered and to be rendered by the
Participant and the mutual promises and covenants made herein, the mutual
benefits to be derived therefrom and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as
follows:
AGREEMENT
1. The
Option(s).
The
Optionee may, at his/her option, purchase all or any part of an aggregate
of
__________ shares of Common Stock (the “Optioned Shares”), at the price of
$_________ per share (the “Option Price”), on the terms and conditions set forth
herein.
2. Option
Type; Exercise Dates and Exercise.
Options
intended to qualify as Incentive Stock Options are designated by an “ISO” under
the category “Type.” Options intended as separate Non-Qualified Stock Options
are designated by a “NQSO” under the category “Type.” The Option(s) shall be
exercisable as to the specified number of Optioned Shares on and after the
“First” dates and on or before the “Last” dates set forth below:
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Type
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Number
of Shares
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First
and Last Date
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Optionee acknowledges that he/she understands he/she has no right whatsoever to exercise the Option(s) granted hereunder with respect to any Optioned Shares covered by any installment until such installment accrues (and is thus vested) as provided above. Optionee further understands that the Option(s) granted hereunder shall expire and become unexercisable as provided in Section 4(c) below.
In
the
event, within twelve (12) months after a Change in Control, the Optionee’s
employment terminates other than (i) for Cause, (ii) voluntary termination
by
the Optionee but such resignation is not a result of a “Constructive
Termination”, or (iii) death or disability of the Optionee, fifty percent (50%)
of the unvested Optioned Shares shall vest upon the date of such termination.
For the purposes of this agreement, “Constructive Termination” shall mean
Employee’s voluntary termination, upon 30 days prior written notice to the
Company, following: (A) a material reduction or change in job duties,
responsibilities and requirements inconsistent with Employee’s position with the
Company and Employee’s prior duties, responsibilities and requirements; (B) any
reduction of Employee’s base compensation (other than in connection with a
general decrease in base salaries for most employees of the successor
corporation); or (C) Employee’s refusal to relocate to a facility or location
more than 75 miles from the Company’s current location.
For
the
purposes of the foregoing, a “Change in Control” shall have the meaning set
forth in Section 9(b) of the Plan. For purposes of this Agreement, “Cause” shall
mean (i) a material act of dishonesty in connection with the Optionee’s
responsibilities as an employee of the Company; (ii) the Optionee’s conviction
of, or plea of nolo contendere to, a felony or a crime involving moral
turpitude, (iii) the Optionee’s gross misconduct which has a material adverse
effect on the Company, or (iv) the Optionee’s consistent and willful failure to
perform his or her employment duties where such failure is not cured within
30
days after written notice to Participant by the Company.
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3. Method
of Exercise.
This
Option shall be deemed exercised as to the shares to be purchased when written
notice of such exercise has been given to the Company at its principal business
office by the Optionee with respect to the Common Stock to be purchased.
Such
notice shall be accompanied by full payment in cash or cash equivalents as
determined by the Administrator. As determined by the Administrator, in its
sole
discretion, payment in whole or part may also be made (i) in the form of
unrestricted Stock already owned by the Optionee, or, in the case of the
exercise of a Non-Qualified Stock Option, Restricted Stock subject to an
Award
hereunder (based, in each case, on the Fair Market Value of the Stock), (ii)
by
cancellation of any indebtedness owed by the Company to the Optionee, (iii)
by a
full recourse promissory note executed by the Optionee, (iv) by requesting
that
the Company withhold whole shares of Common Stock then issuable upon exercise
of
the Stock Option (based on the Fair Market Value of the Stock), (v) by
arrangement with a broker which is acceptable to the Administrator where
payment
of the option price is made pursuant to an irrevocable direction to the broker
to deliver all or part of the proceeds from the sale of the shares underlying
the option to the Company, or (vi) by any combination of the foregoing;
provided,
however,
that in
the case of an Incentive Stock Option, the right to make payment in the form
of
already owned shares may be authorized only at the time of grant. Any payment
in
the form of Stock already owned by the Optionee may be effected by use of
an
attestation form approved by the Administrator. If payment of the option
exercise price of a NQSO is made in whole or in part in the form of Restricted
Stock or Deferred Stock, the shares received upon the exercise of such Option
(to the extent of the number of shares of Restricted Stock or Deferred Stock
surrendered upon exercise of such Option) shall be restricted in accordance
with
the original terms of the Restricted Stock or Deferred Stock award in question,
except that the Administrator may direct that such restrictions shall apply
only
to that number of shares surrendered upon the exercise of such
Option.
4. Governing
Plan.
This
Agreement hereby incorporates by reference the Plan and all of the terms
and
conditions of the Plan as heretofore amended and as the same may be amended
from
time to time hereafter in accordance with the terms thereof, but no such
subsequent amendment shall adversely affect the Optionee’s rights under this
Agreement and the Plan except as may be required by applicable law. The Optionee
expressly acknowledges and agrees that the provisions of this Agreement are
subject to the Plan; the terms of this Agreement shall in no manner limit
or
modify the controlling provisions of the Plan, and in case of any conflict
between the provisions of the Plan and this Agreement, the provisions of
the
Plan shall be controlling and binding upon the parties hereto. The Optionee
also
hereby expressly acknowledges, represents and agrees as follows:
(a) Acknowledges
receipt of a copy of the Plan, a copy of which is attached hereto and by
reference incorporated herein, and represents that he/she is familiar with
the
terms and provisions of said Plan, and hereby accepts this Agreement subject
to
all the terms and provisions of said Plan.
(b) Agrees
to
accept as binding, conclusive and final all decisions or interpretations
of the
Administrator upon any questions arising under the Plan.
(c) Acknowledges
that he/she is familiar with Sections of the Plan regarding the exercise
of the
Option(s) and represents that he/she understands that said Option(s) must
be
exercised on or before the “Last” exercise date noted above in Section 2 or such
other date as set forth in the Plan, whichever is earlier.
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(d) Acknowledges,
understands and agrees that the existence of the Plan and the execution of
this
Agreement are not sufficient by themselves to cause any exercise of any
Option(s) granted as an Incentive Stock Option to qualify for favorable tax
treatment through the application of Section 422 of the Internal Revenue
Code;
that Optionee must, in order to so qualify, individually meet by his own
action
all applicable requirements of Section 422, including without limitation
the
following holding period and employment requirements:
(1) holding
period requirement:
no
disposition of an Optioned Share may be made by Optionee within two (2) years
from the date of the granting of the Option(s) nor within one (1) year after
the
transfer of such Optioned Share to him/her, and
(2) employment
requirement:
at all
times during the period beginning on the date of the granting of the Option(s)
and ending on the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, its Parent, or a Subsidiary of
the
Company, or a corporation or a parent or subsidiary of such corporation issuing
or assuming the Option(s) in a transaction to which Section 425(a) of the
Internal Revenue Code applies, except where the termination of employment
is by
means of the employee’s disability, in which case said three (3) month period
may be extended to one (1) year, as provided under Internal Revenue Code
Section
422.
5. Representations
and Warranties.
Optionee hereby represents to the Company that each of the Options evidenced
hereby and the shares purchasable upon exercise thereof are being acquired
only
for investment and without any present intention to sell or distribute such
securities.
6. Options
Not Transferable.
No
Stock Option shall be transferable by the Optionee other than by will or
by the
laws of descent and distribution. Incentive Stock Options shall be exercisable,
during the Optionee’s lifetime, only by the Optionee or, with respect to
Non-Qualified Stock Options, in accordance with the terms of a qualified
domestic relations order.
7. No
Enlargement of Employee Rights.
Nothing
in this Agreement shall be construed to confer upon the Optionee (if an
employee) any right to continued employment with the Company or to restrict
in
any way the right of the Company to terminate his/her employment. Optionee
acknowledges that in the absence of an express written employment agreement
to
the contrary, the Company may terminate Optionee’s employment with the Company
at any time, with or without cause.
8. Withholding
of Taxes.
Optionee authorizes the Company to withhold, in accordance with any applicable
law, from any compensation payable to him any taxes required to be withheld
by
federal, state or local law as a result of the grant of the Option(s) or
the
issuance of stock pursuant to the exercise of such Option(s).
9. Laws
Applicable to Construction.
This
Agreement shall be construed and enforced in accordance with the laws of
the
State of California.
10. Agreement
Binding on Successors.
The
terms of this Agreement shall be binding upon the executors, administrators,
heirs, successors, transferees and assignees of the Optionee.
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11. Costs
of Litigation.
In any
action at law or in equity to enforce any of the provisions or rights under
this
Agreement or the Plan, the unsuccessful party to such litigation, as determined
by the court in a final judgment or decree, shall pay the successful party
or
parties all costs, expenses and reasonable attorneys’ fees incurred by the
successful party or parties (including without limitation costs, expenses
end
fees on any appeals), and if the successful party recovers judgment in any
such
action or proceeding such costs, expenses and attorneys’ fees shall be included
as part of the judgment.
12. Necessary
Acts.
The
Optionee agrees to perform all acts and execute and deliver any documents
that
may be reasonably necessary to carry out the provisions of this Agreement,
including but not limited to all acts and documents related to compliance
with
federal and/or state securities laws.
13. Counterparts.
For
convenience this Agreement may be executed in any number of identical
counterparts, each of which shall be deemed a complete original in itself
and
may be introduced in evidence or used for any other purpose without the
production of any other counterparts.
14. Invalid
Provisions.
In the
event that any provision of this Agreement is found to be invalid or otherwise
unenforceable under any applicable law, such invalidity or unenforceability
shall not be construed as rendering any other provisions contained herein
invalid or unenforceable, and all such other provisions shall be given full
force and effect to the same extent as though the invalid and unenforceable
provision was not contained herein.
15. Limitation
on Value of Optioned Shares.
Optionee acknowledges that the Plan provides that the aggregate fair market
value (determined as of the date hereof) of the shares of Common Stock to
which
Options granted as Incentive Stock Options are exercisable for the first
time by
Optionee during any calendar year under all incentive stock option plans
of the
Company and any future Subsidiary shall not exceed $100,000. It is understood
and agreed that should it be determined that an Option if granted as an
Incentive Stock Option hereunder would exceed such maximum, such Option shall
be
considered granted as a Non-Qualified Stock Option to the extent, but only
to
the extent of such excess. This limitation shall not apply to any option
granted
as a Non-Qualified Stock Option.
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IN
WITNESS WHEREOF, the Company and the Optionee have executed this Agreement
effective as of the date first written hereinabove.
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FIIC,
Inc.
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OPTIONEE | |
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By:
Name:
Title:
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(Print
Name)
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Address
of Optionee:
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(Social
Security)
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By
his or
her signature below, the spouse of the Optionee, if such Optionee be legally
married as of the date of his execution of this Agreement, acknowledges that
he
or she has read this Agreement and the Plan and is familiar with the terms
and
provisions thereof, and agrees to be bound by all the terms and conditions
of
said Agreement and said Plan document.
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Spouse
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| Dated: |
By
his or
her signature below the Optionee represents that he or she is not legally
married as of the date of execution of this Agreement.
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Spouse
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| Dated: |
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