STOCK OPTION AGREEMENT GULFSTREAM ACQUISITION GROUP, INC.
Exhibit 10.24
GULFSTREAM ACQUISITION GROUP, INC.
THIS
AGREEMENT, made this ___ day of , 20___, by and between Gulfstream Acquisition
Group, Inc. (“Company”), and (“Optionee”),
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Company (“Board of Directors”) has adopted the
Gulfstream Acquisition Group, Inc. Stock Incentive Plan (the “Plan”) pursuant to which options to
purchase shares of the Common Stock of the Company may be granted to employees, directors and
consultants of the Company, a parent or subsidiary, as such terms are defined in the Plan; and
WHEREAS, Optionee is an employee of the Company; and
WHEREAS, the Company desires to grant to Optionee the option to purchase certain shares of its
stock under the terms of the Plan, which option is intended to qualify as an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (“Code”)
(hereinafter referred to as an “Incentive Stock Option”); and
NOW, THEREFORE, in consideration of the premises and of the mutual agreements hereinafter set
forth, it is covenanted and agreed as follows:
1. Grant Subject to Plan. This option is granted under and is expressly subject to
all the terms and provisions of the Plan, and the terms of the Plan are incorporated herein by
reference. Optionee acknowledges receipt of a copy of the Plan and agrees to be bound by all the
terms and provisions of the Plan. Terms not defined in this agreement shall have the meaning
ascribed thereto in the Plan.
2. Grant and Terms of Option. Pursuant to action of the Board of Directors, which
action was taken on January 27, 2007 (“Date of Grant”), the Company grants to Optionee the option
to purchase all or any part of one thousand (1,000) shares of the common stock of the Company, of
the par value of $0.001 per share (“Common Stock”), for a period of ten (10) years from the Date of
Grant, at a purchase price of ten dollars ($10.00) per share, provided, however, that the right to
exercise such option shall be, and is hereby, restricted as follows:
(a) At any time during the term of this option on or after the Date of Grant, Optionee
may purchase up to 20% of the total number of shares to which this option relates; that at
any time during the term of this option on or after January 25, 2008, Optionee may purchase
up to an additional 20% of the total number of shares to which this option relates; that at
any time during the term of this option on or after January 25, 2009, Optionee may purchase
up to an additional 20% of the total number of shares to which this option relates; that at
any time during the term of this option on or after January 25, 2010, Optionee may purchase
up to an additional 20% of the total number of shares to which this option relates; and that
at any time on or after January 25, 2011, Optionee may purchase up to an additional 20% of
the total number of shares to which this option relates; so that on or after January 25,
2011, during the term hereof, Optionee will have become entitled to purchase the entire
number of shares to which this option relates.
(b) Notwithstanding the above, in the event of a Change in Control, as defined in the
Plan, Optionee may purchase 100% of the total number of shares to which this option relates.
(c) In no event may this option or any part thereof be exercised after the expiration
of ten (10) years from the Date of Grant.
(d) The purchase price of the shares subject to the option may be paid for (i) in cash,
(ii) in the discretion of the Committee, by tender of shares of Common Stock already owned
by Optionee for a period of at least six months as of the date of tender and registered in
his or her name, and having a fair market value equal to the cash exercise price of the
Option being exercised, or (iii) in the discretion of the Committee, by a combination of
methods of payment specified in clauses (i) and (ii), all in accordance with Section 6 of
the Plan.
(e) No shares of Common Stock may be tendered in exercise of this option if such shares
were acquired by Optionee through the exercise of an Incentive Stock Option, unless (i) such
shares have been held by Optionee for at least one year, and (ii) at least two years have
elapsed since such Incentive Stock Option was granted.
3. Anti-Dilution Provisions. In the event that, during the term of this Agreement,
there is any change in the number of shares of outstanding Common Stock of the Company by reason of
stock dividends, recapitalizations, mergers, consolidations, split-ups, combinations or exchanges
of shares and the like, the number of shares covered by this option agreement and the price thereof
shall be adjusted, to the same proportionate number of shares and price as in this original
agreement.
4. Investment Purpose and Other Restrictions on Transfer. Optionee represents that,
in the event of the exercise by Optionee of the option hereby granted, or any part thereof, he or
she intends to purchase the shares acquired on such exercise for investment and not with a view to
resale or other distribution; except that the Company, at its election, may waive or release this
condition in the event the shares acquired on exercise of the option are registered under the
Securities Act of 1933, or upon the happening of any other contingency which the Company shall
determine warrants the waiver or release of this condition. Optionee agrees that the certificates
evidencing the shares acquired by him or her on exercise of all or any part of this option, may
bear a restrictive legend, if appropriate, indicating that the shares have not been registered
under said Act and are subject to restrictions on the transfer thereof, which legend may be in the
following form (or such other form as the Company shall determine to be proper), to-wit:
“The shares represented by this certificate have not been registered under the
Securities Act of 1933, but have been issued or transferred to the registered owner
pursuant to the exemption afforded by Section 4(2) of said Act. No transfer or
assignment of these shares by the registered owner shall be valid or effective, and
the issuer of these shares shall not be required to give any effect to any transfer
or attempted transfer of these shares, including without limitation, a transfer by
operation of law, unless (a) the issuer shall have received an opinion of its
counsel that the shares may be transferred without requirement of registration under
said Act, or (b) there shall have been delivered to the issuer a ‘no-action’ letter
from the staff of the Securities and Exchange Commission, or (c) the shares are
registered under said Act.”
In addition to the restrictions described above, Optionee may not sell, pledge, transfer,
donate, assign or otherwise dispose of (collectively, “transfer”), whether voluntarily or by
operation of
law, any shares of Common Stock acquired pursuant to the exercise of an option under this
Agreement except as provided in this Section 4.
(a) Right of First Refusal.
(1) If the Optionee intends to transfer any shares of Common Stock pursuant to
a bona fide purchase offer of an offeror (“Offeror”), the Optionee shall deliver to
the Company a written notice (the “Notice”) of such intention to transfer such
shares, setting forth in reasonable detail: (i) the proposed price, (ii) the number
of shares proposed to be transferred, (iii) the other terms and conditions of the
proposed transfer of such shares, (iv) an offer to sell the shares to the Company as
provided herein and (v) the identity of the Offeror. The shares proposed to be
transferred are hereinafter referred to as the “Offered Shares.”
(2) The Company may elect to purchase all (but not less than all) of the
Offered Shares at any time during the thirty (30) day period following its receipt
of the Notice. The Company shall be entitled to purchase the Offered Shares from
the Optionee at the same price and on the same terms and conditions as those
pursuant to which the Optionee proposes to transfer the Offered Shares, as described
in the Notice. If the Company fails to respond to such offer within the 30-day
period, it shall be deemed to have rejected the offer.
(3) Unless the Optionee and the Company otherwise agree, the closing of the
purchase of the Offered Shares shall take place at the principal offices of the
Company at 10:00 a.m. on the tenth day (or if such day is not a business day on the
next business day) after the expiration of the 30-day period. At the closing, the
Optionee shall tender the Offered Shares, together with appropriate instruments of
transfer endorsed to the Company, and the Company shall tender a certified check,
cashier’s check or a wire transfer of immediately available funds in the amount of
the purchase price therefor.
(4) If the Offered Shares are not purchased by the Company pursuant to this
Section 4, the Optionee shall be entitled to sell all of the Offered Shares to the
Offeror at the price and on the terms and conditions specified in the Notice,
provided that such sale is consummated within one-hundred twenty (120) days from the
date the Notice is delivered to the Company. For any sale of shares after such
one-hundred twenty (120) day period, the Optionee shall give a new notice which
shall reinstate the rights of the Company set forth in this Section 4 to purchase
the Offered Shares.
(b) Take-Along Rights. If an offeror desires to purchase all of the
outstanding shares of Common Stock and if the owners of at least 50% of the outstanding
shares desire to make such sale, the Optionee agrees to sell all of his or her shares to
such offeror on the terms and conditions approved by the owners of at least 50% of the
outstanding shares.
(c) Effect of Prohibited Transfer. If any transfer of shares is made or
attempted by an Optionee other than in accordance with the terms of this Agreement, the
Company may refuse for any purpose to recognize any transferee who receives shares and any
such transferee shall have no right to claim or retain any dividends on such shares which
were paid or become payable subsequent to the date on which the prohibited transfer was made
or
attempted. In addition to any other legal or equitable rights that it may have, the
Company may enforce its rights by specific performance to the extent permitted by law.
(d) Buy-Back Rights. If the Optionee terminates employment for any reason, the
Optionee must, upon request by the Committee, offer to sell his or her shares of Common
Stock to the Company at a price equal to the Fair Market Value of such shares of Common
Stock on the date of such sale. The Company may exercise the buy-back right with respect to
the Optionee no later than twelve (12) months after the date the Optionee terminates
employment.
(e) Exceptions to Transfer Restrictions. Notwithstanding anything to the
contrary in this Agreement, the restrictions upon transfer set forth in this Section 4 shall
not apply to a transfer of shares of Common Stock by an Optionee to any of (i) the
Optionee’s heirs, executors, administrators or other personal representative upon death of
the Optionee or (ii) the Optionee’s spouse, children or grandchildren, or a trust for their
or the Optionee’s benefit; provided that, the restrictions on transfer in this Section 4
shall continue to apply to the shares received by any such permitted transferee, including
without limitation that such permitted transferee shall not again transfer such shares
except in accordance with this Section 4.
(f) Termination of Transfer Restrictions. The restrictions described in Sections 4(a)
through 4(e) shall terminate on the earlier of a Public Offering of shares of Common Stock or
mutual agreement of the parties to this Agreement.
5. Non-Transferability. Neither the option hereby granted nor any rights thereunder
or under this Agreement may be assigned, transferred or in any manner encumbered except by will or
the laws of descent and distribution, and any attempted assignment, transfer, mortgage, pledge or
encumbrance except as herein authorized, shall be void and of no effect. The option may be
exercised during Optionee’s lifetime only by Optionee or his or her guardian or legal
representative.
6. Termination of Employment. In the event of the termination of employment of
Optionee other than by death, Optionee may exercise the option, to the extent he or she was
entitled to exercise it on the date of termination of employment, at any time within three (3)
months after such termination, but not after ten (10) years from the Date of Grant. If Optionee
terminates employment on account of disability, his or her option shall become fully vested (if not
already fully vested) and he or she may exercise such option at any time within one year of the
termination of his or her employment, but not after ten (10) years from the Date of Grant. For
this purpose, Optionee shall be deemed to be disabled if he or she is permanently and totally
disabled within the meaning of Section 422(c)(6) of the Code, which, as of the date hereof, shall
mean that he or she is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12 months.
Optionee shall be considered disabled only if he or she furnishes such proof of disability as the
Committee may require.
7. Death of Optionee. In the event of the death of Optionee during the term of this
Agreement and while he or she is employed by the Company (or its Parent or a Subsidiary), or within
three (3) months after the termination of his or her employment (or one year in the case of the
termination of employment of an Optionee who is disabled as provided in Section 6 above), this
option shall become fully vested (if not already fully vested) and may be exercised by a legatee or
legatees of Optionee under his or her last will, or by his or her personal representatives or
distributees, at any time within a period of one year after his or her death, but not after ten
(10) years from the Date of Grant, and only if he or she was entitled to exercise the option at the
date of his or her death.
8. Shares Issued on Exercise of Option. It is the intention of the Company that on
any exercise of this option it will transfer to Optionee shares of its authorized but unissued
stock or transfer Treasury shares, or utilize any combination of Treasury shares and authorized but
unissued shares, to satisfy its obligations to deliver shares on any exercise hereof.
9. Committee Administration. This option has been granted pursuant to a determination
made by the Board of Directors. The Board of Directors has appointed a Committee referred to in
Section 4 of the Plan, and such Committee or any successor or substitute committee authorized by
the Board of Directors or the Board of Directors itself, subject to the express terms of this
option, shall have plenary authority to interpret any provision of this option and to make any
determinations necessary or advisable for the administration of this option and the exercise of the
rights herein granted, and may waive or amend any provisions hereof in any manner not adversely
affecting the rights granted to Optionee by the express terms hereof.
10. Option an Incentive Stock Option. It is intended that this option shall be
treated as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as
amended.
11. No Contract of Employment. Nothing contained in this Agreement shall be
considered or construed as creating a contract of employment for any specified period of time.
12. Severability. Any word, phrase, clause, sentence or other provision herein which
violates or is prohibited by any applicable law, court decree or public policy shall be modified as
necessary to avoid the violation or prohibition and so as to make this Agreement enforceable as
fully as possible under applicable law, and if such cannot be so modified, the same shall be
ineffective to the extent of such violation or prohibition without invalidating or affecting the
remaining provisions herein.
13. Non-Waiver of Rights. The Company’s failure to enforce at any time any of the
provisions of this agreement or to require at any time performance by Optionee of any of the
provisions hereof shall in no way be construed to be a waiver of such provisions or to affect
either the validity of this agreement, or any part hereof, or the right of the Company thereafter
to enforce each and every provision in accordance with the terms of this agreement.
14. Entire Agreement; Amendments. No modification, amendment or waiver of any of the
provisions of this agreement shall be effective unless in writing specifically referring hereto,
and signed by the parties hereto. This agreement supersedes all prior agreements and
understandings between Optionee and the Company to the extent that any such agreements or
understandings conflict with the terms of this agreement.
15. Assignment. This agreement shall be freely assignable by the Company to and shall
inure to the benefit of, and be binding upon, the Company, its successors and assigns and/or any
other entity which shall succeed to the business presently being conducted by the Company.
16. Choice of Forum and Governing Law. In light of the parties’ interests in ensuring
that disputes regarding the interpretation, validity and enforceability of this agreement are
resolved on a uniform basis, the parties agree that: (i) any litigation, validity and/or
enforceability of the agreement, shall be filed and conducted exclusively in the state or federal
courts in the State of Delaware; and (ii) the agreement shall be interpreted in accordance with and
governed by the laws of the State of Delaware, without regard for any conflict of law principles.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by the
undersigned officer pursuant to due authorization, and Optionee has signed this Agreement to
evidence his or her acceptance of the option herein granted and of the terms hereof, all as of the
date hereof.
| GULFSTREAM ACQUISITION GROUP, INC. | ||||||
| By | ||||||
| Chairman | ||||||
| Optionee | ||||||