TITAN ENERGY WORLD WIDE, INC. STOCK OPTION AGREEMENT
Exhibit
4.1
Grant
No. 2009- ______
TITAN
ENERGY WORLD WIDE, INC.
2009
OMNIBUS STOCK INCENTIVE PLAN
This
Stock Option Agreement (the "Option Agreement") is made and
entered into as of the date of grant set forth below (the "Date of Grant") by and between
Titan Energy Worldwide, Inc., a Nevada corporation (the "Company"), and the Optionee
named below (the "Optionee"). Capitalized
terms not defined herein shall have the meaning ascribed to them in the
Company's 2009 Omnibus Stock Incentive Plan (the "Plan").
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Name
of Optionee:
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_________________________________
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Social
Security No.:
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_________________________________
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Address:
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_________________________________
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_________________________________
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_________________________________
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Shares
Subject to Option:
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_________________________________
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Exercise
Price Per Share:
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_________________________________
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Date
of Grant:
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_________________________________
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Vesting
Commencement
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1
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Date:
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_________________________________
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Expiration
Date:
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_________________________________
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Type
of Stock Option
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(Check
one):
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¨
Incentive Stock Option
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x
Non-Qualified Stock Option
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1. Number of
Shares. The Company hereby grants to Optionee an option (this
"Option") to purchase
the total number of shares of Common Stock set forth above as Shares Subject to
Option (the "Option
Shares") at the Exercise Price Per Share set forth above (the "Exercise Price"), subject to
all of the terms and conditions of this Option Agreement and the
Plan. In the event the Option exceeds the $100,000 rule of Section
422(d), the portion of this Option in excess of $100,000 shall be treated as a
Non-Qualified Stock Option.
2. Option
Term. The term of the Option and of this Option Agreement (the
"Option Term") shall
commence on the Date of Grant set forth above and, unless the Option is
previously terminated pursuant to Section 5 below, shall terminate upon the
Expiration Date set forth above. As of the Expiration Date, all
rights of the Optionee hereunder shall terminate.
3. Conditions of
Exercise.
(a) Subject
to Section 5 below, the Option shall vest as to twenty-five (25%) of the Option
Shares on the anniversary of the Vesting Commencement Date, and as to an
additional 1/48 of the Option Shares on the last day of each of the next
thirty-six (36) months following such anniversary; provided, however, that in
the event Optionee's employment is terminated by the Company without Cause (as
defined in Section 5 hereof) or by Optionee for Good Reason (as defined below)
within twelve (12) months following a Change in Control of the Company, 100% of
the Option Shares shall immediately vest and become fully
exercisable.
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For
purposes of this Option Agreement, "Good Reason" shall mean the
occurrence of any of the following events without Optionee's prior written
consent: (i) a termination without Cause by the Company or any Parent or
Subsidiary or successor thereof, as appropriate; (ii) a material reduction in
Optionee's job responsibilities, provided that neither a mere change in title
alone nor reassignment following a Change of Control to a position that is
substantially similar to the position held prior to the Change in Control shall
constitute a material reduction in job responsibilities; (iii) a reduction in
Optionee's then-current base salary, provided that an across-the-board reduction
in the salary level of all other employees or consultants in positions similar
to Optionee's by the same percentage amount as part of a general salary level
reduction shall not constitute such a salary reduction; (iv) requiring Optionee
to relocate to a facility or location more than 50 miles from the Company's
location at the time of the Change in Control, provided that required travel on
corporate business to an extent consistent with the Optionee's job
responsibilities shall not constitute a forced relocation.
For purposes of this
Option Agreement, a "Change in Control" of the Company shall be deemed to occur
as of such time of "Change in Control"
means the first to occur of any one of the events set forth in the following
paragraphs, provided
that a Public Offering shall not constitute a Change in Control:
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(i)
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any
Person is or becomes the "Beneficial Owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Company (not including in the securities Beneficially Owned by such Person
any securities acquired directly from the Company) representing 50% or
more of the Company's then outstanding securities, excluding any Person
who becomes such a Beneficial Owner in connection with a transaction
described in clause (A) of paragraph (iii) hereof;
or
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(ii)
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the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the effective date
of a Public Offering, constitute the Board of Directors of the Company and
any new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election of
directors of the Company) whose appointment or election by the Board of
Directors or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the Effective
Date or whose appointment, election or nomination for election was
previously so approved or recommended;
or
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(iii)
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there
is consummated a merger or consolidation of the Company with any other
corporation other than (A) merger or consolidation which results in the
directors of the Company immediately prior to such merger or consolidation
continuing to constitute at least a majority of the board of directors of
the Company, the surviving entity or any parent thereof, or (B) a merger
or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company (not including
in the securities Beneficially Owned by such Person any securities
acquired directly from the Company) representing 50% or more of the
combined voting power of the Company's then outstanding securities;
or
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(iv)
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the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets, other than a sale or disposition by the Company of all
or substantially all of the Company's assets to an entity at least a
majority of the board of directors of which comprises individuals who were
directors of the Company immediately prior to such sale or
disposition.
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For the purposes of this
Option Agreement, the term "Person" shall have the meaning given in
Section 3(a)(9) of the Securities Exchange Act of 1934 (as amended), as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any of its Affiliates, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
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(b) Notwithstanding
anything to the contrary herein, this Option may not be exercised for vested
Option Shares until the earlier of (i) January 1, 2011 or (ii) the date the
Company consummates an initial underwritten public offering of its equity
securities pursuant to an effective registration statement filed under the
Securities Act of 1933, as amended (the "Securities Act") (either,
hereinafter referred to as the "First Exercise Date"), at
which time the right of the Optionee to purchase Option Shares with respect to
which this Option has become vested may be exercised in whole or in part at any
time or from time to time prior to expiration of the Option Term; provided, however, that the
Option may not be exercised for a fraction of a Share.
4. Method of Exercise of
Option.
(a) The
Option may be exercised by delivering to the Company an executed stock option
exercise agreement in the form attached hereto as Exhibit A, or in such
other form as may be approved by the Administrator from time to time (the "Exercise Agreement"), which
shall set forth, inter alia, (i) Optionee's
election to exercise the Option, (ii) the number of shares of Common Stock being
purchased and (iii) any representations, warranties and agreements regarding
Optionee's investment intent and access to information as may be required by the
Company to comply with applicable securities laws, and payment in full of the
aggregate Exercise Price of the shares being purchased. If someone
other than the Optionee exercises the Option, then such person must submit
documentation reasonably acceptable to the Company verifying that such person
has the legal right to exercise the Option.
(b) The
Option may not be exercised unless the stockholders of the Company have approved
the Plan and such exercise is in compliance with all applicable federal and
state securities law, as they are in effect on the date of
exercise.
(c) Payment
of the aggregate Exercise Price for Option Shares being purchased and any
applicable withholding taxes may be made (i) in cash or by check, (ii) by means
of a cashless exercise procedure either through a broker or, at the discretion
of the Administrator, through withholding of shares of Common Stock otherwise
issuable upon exercise of the Option in an amount sufficient to pay the
aggregate Option Exercise Price and/or any applicable withholding taxes, (iii)
in the form of unrestricted Shares already owned by the Optionee which, (x) in
the case of unrestricted Shares acquired upon exercise of an option, have been
owned by the Optionee for more than six months on the date of surrender, and (y)
have an aggregate Fair Market Value on the date of surrender equal to the
aggregate Exercise Price of the Shares as to which such Option shall be
exercised, or (iv) by any other means of exercise authorized from time to time
in the Plan and/or by the Board.
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5. Effect of Termination of
Employment or Service. Upon the termination of Optionee's
employment or service with the Company or any Parent or Subsidiary under any
circumstances, the Option shall immediately terminate as to any Option Shares
that have not previously vested as of the date of such termination (the "Termination
Date").
(a) In
the event of Optionee's termination of employment or service with the Company or
any Parent or Subsidiary for "Cause" (as defined below), the
Option shall immediately terminate in full as of the Termination
Date. For purposes of this Agreement, Cause shall mean the occurrence
of any of the following events, as determined by the Committee in its sole and
absolute discretion and which determination shall be final: (i)
Optionee's conviction of or plea of guilty or nolo contendere to the commission
of an act or acts constituting a felony under the laws of the United States or
any state thereof, (ii) action by Optionee toward the Company or any Parent or
Subsidiary involving personal dishonesty, theft or fraud in connection with
Optionee's duties as an employee of or consultant to the Company or any Parent
or Subsidiary, (iii) Optionee's willful failure to abide by or follow
lawful directions of the Company or any Parent or Subsidiary or (iv) breach by
Optionee of Section 6 of this Option Agreement.
(b) In
the event of Optionee's termination of employment or service with the Company or
any Parent or Subsidiary for any reason other for Cause or as a result of
Optionee's death or Disability, any portion of the Option that has vested as of
the Termination Date shall be exercisable in whole or in part until the later of
(i) ninety (90) days following the Termination Date or (ii) ninety (90) days
following the First Exercise Date; provided, however, that in no
event may the Option be exercised after the Expiration Date. Upon
expiration of such 90-day period, any unexercised portion of the Option shall
terminate in full.
(c) In
the event of Optionee's termination of employment or service with the Company or
any Parent or Subsidiary as a result of Optionee's death or Disability, any
portion of the Option that has vested as of the Termination Date shall be
exercisable in whole or in part any portion until the later of (i) one (1) year
following the Termination Date or (ii) one (1) year following the First Exercise
Date; provided,
however, that
in no event may the Option be exercised after the Expiration
Date. Upon expiration of such one-year period, any unexercised
portion of the Option shall terminate in full.
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6. Noncompetition. Optionee
acknowledges that, in the course and as a result of employment with the Company
or any Parent or Subsidiary, Optionee will obtain special training and knowledge
and will come in contact with the Company's customers and potential customers,
which training, knowledge, and contacts would provide invaluable benefits to
competitors of the Company. Accordingly, and in consideration of the
Company's granting this Option to Optionee, which Optionee acknowledges is
conditioned on the covenants contained herein, Optionee agrees that the Company
will be entitled to terminate all rights to exercise the Option and to exercise
the rights specified in Section 7 below in the event that, during the time
Optionee is employed by the Company or any Parent or Subsidiary or within two
years thereafter, except with the prior written consent of the Company,
Optionee, either directly or indirectly, whether as an employee, employer,
consultant, agent, principal, partner, owner, shareholder (other than as a
holder of less than 5% of a publicly-traded class of securities), officer,
director, or in any other individual or representative capacity, does any of the
following:
(a) competes
with, or engages in any business that is competitive with the Company or any
Parent or Subsidiary, as applicable, within 250 miles of any location at which
Optionee was employed by or provided services to the Company or any Parent or
Subsidiary;
(b) solicits
or accepts any business or employment from any person or entity that is, or any
time within the preceding two years was solicited to become, a customer of the
Company or any Parent or Subsidiary, as applicable;
(c) recruits,
solicits, discusses employment with, or assists any person or entity in
recruiting any person who is, or at any time within the preceding one year was,
an employee of the Company or any Parent or Subsidiary; or
(d) discloses
to any unauthorized person or entity, or uses, licenses, sells, conveys or
otherwise exploits in competition with the Company or any Parent or Subsidiary
or otherwise for the benefit of any person or entity other than the Company or
any Parent or Subsidiary, any information proprietary to, used by, or in the
possession of the Company or any Parent or Subsidiary or any of their customers
and not generally known in the industry which is disclosed to or learned by
Optionee while employed by the Company or any Parent or Subsidiary or
thereafter, whether or not reduced to writing and whether or not conceived,
originated, discovered, or developed in whole or in part by
Optionee.
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If any
provision of this Section 6 should be found by any court of competent
jurisdiction to be unreasonable by reason of its being too broad as to the
period of time, territory, and/or scope, then, and in that event, such provision
shall nevertheless remain valid and fully effective, but shall be considered to
be amended so that the period of time, territory, and/or scope set forth shall
be changed to be the maximum period of time, the largest territory, and/or the
broadest scope, as the case may be, which would be found reasonable and
enforceable by such court.
7. Right of
Repurchase. In the event Optionee breaches the noncompetition
provision set forth in Section 6 above, the Company will have the right to
purchase any Shares held by Optionee or any transferee (either being
sometimes referred to herein as the "Holder") on the terms and
conditions set forth in this Section (the "Right of
Repurchase").
(a) Exercise of Right of
Repurchase. At any time within one hundred fifty (150) days
after the Committee discovers the breach of Section 6 hereof by Optionee, the
Company shall have the right to exercise the Right of Repurchase, at a purchase
price equal to the product of (i) the per share price paid by Optionee and (ii)
the number of Shares being repurchased by the Company, plus simple interest on
such aggregate amount at the rate of 6% per annum from the date of payment by
Optionee to the date of tender of payment by the Company. The Right
of Repurchase may be exercised by notifying the Holder of the Company's election
to exercise its right within the designated exercise period
(b) Purchase
Price. The purchase price ("Repurchase Price") for the
Option Shares purchased by the Company or its assignee(s) under this Section
shall be the Offered Price. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration shall be determined by the Board in good faith.
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(c) Payment. Payment
of the Repurchase Price shall be made, at the option of the Company, in cash (by
check), by cancellation of all or a portion of any outstanding indebtedness of
the Holder to the Company (or, in the case of repurchase by an assignee, to the
assignee), or by any combination thereof.
8. Adjustments. In
the event of any merger, reorganization, consolidation, recapitalization, stock
dividend, stock split or similar change affecting the Common Stock, a
substitution or proportionate adjustment shall be made in the kind, number and
option price of shares of Common Stock subject to the unexercised portion of the
Option as set forth in Section 4 of the Plan.
9. Nontransferability of
Option. Except under the laws of descent and distribution or
as otherwise provided by the Administrator, the Optionee shall not be permitted
to sell, transfer, pledge or assign the Option and this Option Agreement; provided, however, that the
Optionee shall be permitted to transfer this Option to the extent it is a
Non-Qualified Stock Option to a trust controlled by the Optionee during the
Optionee's lifetime for estate planning purposes. Unless transferred
pursuant to the foregoing sentence, the Option shall be exercisable, during the
Optionee's lifetime, only by the Optionee. Without limiting the
generality of the foregoing, except as otherwise provided herein, the Option may
not be assigned, transferred, pledged or hypothecated in any way, shall not be
assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option shall be null and void and without effect.
10. Company's Right of First
Refusal. Before any Option Shares held by Optionee or any
transferee (either being sometimes referred to herein as the "Holder") may be sold or
otherwise transferred (including transfer by gift or operation of law), the
Company or its assignee(s) shall have a right of first refusal to purchase the
Option Shares on the terms and conditions set forth in this Section (the "Right of First
Refusal").
(a) Notice of Proposed
Transfer. The Holder of the Option Shares shall deliver to the
Company a written notice (the "Notice")
stating: (i) the Holder's bona fide intention to sell or
otherwise transfer the Option Shares; (ii) the name of each proposed
purchaser or other transferee (each, a "Proposed Transferee");
(iii) the number of Option Shares to be transferred to each Proposed
Transferee; and (iv) the bona fide cash price or other consideration
payable by each Proposed Transferee for which the Holder proposes to transfer
the Option Shares (the "Offered
Price"), and the Holder shall offer the Option Shares at the Offered
Price to the Company or its assignee(s).
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(b) Exercise of Right of First
Refusal. At any time within thirty (30) days after
receipt of the Notice, the Company and/or its assignee(s) may, by giving written
notice to the Holder, elect to purchase all, but not less than all, of the
Option Shares proposed to be transferred to any one or more of the Proposed
Transferees, at the purchase price determined in accordance with
subsection (c) below.
(c) Purchase
Price. The purchase price ("Purchase Price") for the
Option Shares purchased by the Company or its assignee(s) under this Section
shall be the Offered Price. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration shall be determined by the Board in good faith.
(d) Payment. Payment
of the Purchase Price shall be made, at the option of the Company or its
assignee(s), in cash (by check), by cancellation of all or a portion of any
outstanding indebtedness of the Holder to the Company (or, in the case of
repurchase by an assignee, to the assignee), or by any combination thereof
within 30 days after receipt of the Notice or in the manner and at the times set
forth in the Notice.
(e) Holder's Right to
Transfer. If all of the Option Shares proposed in the Notice
to be transferred to any Proposed Transferee are not purchased by the Company
and/or its assignee(s) as provided in this Section, then the Holder may sell or
otherwise transfer such Option Shares to such Proposed Transferee(s) at the
Offered Price or at a higher price, provided that such sale or other transfer is
consummated within 120 days after the date of the Notice and provided further
that any such sale or other transfer is effected in accordance with any
applicable securities laws and the Proposed Transferee(s) agrees in writing that
the provision of this Section shall continue to apply to the Option Shares in
the hands of the Proposed Transferee(s). If the Option Shares
described in the Notice are not transferred to the Proposed Transferee(s) within
such period, a new Notice shall be given to the Company, and the Company and/or
its assignees shall again be offered the Right of First Refusal before any
Option Shares held by the Holder may be sold or otherwise
transferred.
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(f) Exception for Certain Family
Transfers. Anything to the contrary contained in this Section
notwithstanding, the transfer of any or all of the Option Shares during the
Optionee's lifetime or on the Optionee's death by will or intestacy to the
Optionee's immediate family or a trust for the benefit of the Optionee's
immediate family shall be exempt from the provisions of this
Section. "Immediate Family" as used
herein shall mean spouse, lineal descendant or antecedent, father, mother,
brother or sister. In such case, the transferee or other recipient
shall receive and hold the Option Shares so transferred subject to the
provisions of this Section, and there shall be no further transfer of such
Option Shares except in accordance with the terms of this Section.
(g) Termination of Right of
First Refusal. The Right of First Refusal shall terminate as
to any Option Shares upon the consummation of an initial underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act of 1933, as amended (the
"Securities
Act").
11. Investment
Representation. The Optionee hereby represents and warrants to
the Company that the Optionee, by reason of the Optionee's business or financial
experience (or the business or financial experience of the Optionee's
professional advisors who are unaffiliated with and who are not compensated by
the Company or any affiliate or selling agent of the Company, directly or
indirectly), has the capacity to protect the Optionee's own interests in
connection with the transactions contemplated under this Option
Agreement.
12. Notices. All
notices and other communications under this Agreement shall be in writing and
shall be given by facsimile or first class mail, certified or registered with
return receipt requested, and shall be deemed to have been duly given
three days after mailing or 24 hours after transmission by facsimile to the
respective parties named below:
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If
to Company:
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Titan
Energy Worldwide
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attn: ▇▇▇▇
▇▇▇▇▇▇
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If
to the Optionee:
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Name:
_____________________
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Address:
___________________
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City/ST
____________________
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Either
party hereto may change such party's address for notices by notice duly given
pursuant hereto.
13. Tax
Consequences. Set forth below is a brief summary as of the
Effective Date of some of the Federal tax consequences of exercise of the Option
and the disposition of the Shares. This summary is necessarily
incomplete, and the tax laws and regulations are subject to
change. Optionee should consult a tax adviser before exercising the
Option or disposing of the Shares.
(a) Exercise and Disposition of
Incentive Stock Option. If the Option qualifies as an
Incentive Stock Option ("ISO"), there will be no
regular Federal income tax liability upon the exercise of the Option, although
the excess, if any, of the aggregate Fair Market Value of the Shares being
purchased on the date of exercise over the aggregate Exercise Price of the
Shares being purchased will be treated as a tax preference item for Federal
alterative minimum tax purposes and may subject Optionee to such alternative
minimum tax in the year of exercise.
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If
the Shares are held for more than one (1) year after the date of the transfer of
the Shares pursuant to the exercise of an ISO and are disposed of more than two
(2) years from the Date of Grant, any gain realized on the disposition of such
Shares will be treated as long term capital gain for Federal income tax
purposes. If the Shares being purchased upon exercise of an ISO are
disposed of prior to the expiration of two years from the Date of Grant or
within one year from the date transfer of the Shares pursuant to the exercise of
an ISO (a "Disqualifying
Disposition"), Optionee will realize ordinary income at the time of the
disposition in an amount equal to the excess, if any, of the aggregate Fair
Market Value of the Shares at the time of exercise (or, if less, the amount
realized on such disqualifying disposition) over the aggregate Exercise price of
the Shares being purchased, and (ii) any additional gain will be subject to tax
as short-term or long-term capital gain. In such case, the Company
may claim a deduction for Federal income tax purposes at the time of such
Disqualifying Disposition for the amount taxable to Optionee as ordinary
income.
(b) Exercise and Disposition of
Non-Qualified Stock Option. If the Option does not qualify as
an Incentive Stock Option, Optionee will recognize ordinary income for Federal
income tax purposes in an amount equal to the excess of the aggregate Fair
Market Value of the Shares purchased over the aggregate Exercise
Price. The Company will generally be entitled to a tax deduction at
such time and in the same amount as the Optionee recognizes ordinary
income.
Optionee
will recognize a capital gain or capital loss upon the disposition of the Shares
acquired upon exercise of a Non-Qualified Stock Option ("NSO") in an amount equal to
the difference between the aggregate Fair Market Value of such Shares on the
date it was acquired and the amount realized in the disposition. Such
gain or loss will be long-term if the stock has been held for more than one
year.
14. Securities Laws
Requirements. The Option shall not be exercisable to any
extent, and the Company shall not be obligated to transfer any Option Shares to
the Optionee upon exercise of such Option, if such exercise, in the opinion of
counsel for the Company, would violate the Securities Act (or any other federal
or state statutes having similar requirements as may be in effect at that
time). Further, the Company may require as a condition of transfer of
any Option Shares pursuant to any exercise of the Option that the Optionee
furnish a written representation that he or she is purchasing or acquiring the
Option Shares for investment and not with a view to resale or distribution to
the public. The Optionee hereby represents and warrants that he or
she understands that the Option Shares are "restricted securities," as
defined in Rule 144 under the Securities Act, and that any resale of the Option
Shares must be in compliance with the registration requirements of the
Securities Act, or an exemption therefrom, and with the requirements of any
applicable "Blue Sky"
law. Each certificate representing Option Shares shall bear the
legends set forth below and with any other legends that may be required by the
Company or by any Federal or state securities laws:
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THE
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES THEREUNDER, AND MAY NOT BE
SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION
OR AN EXEMPTION THEREFROM.
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS
ASSIGNEE(S). SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL
ARE BINDING ON TRANSFEREES OF THESE SHARES.
Further,
if the Company decides, in its sole discretion, that the listing or
qualification of the Option Shares under any securities or other applicable law
is necessary or desirable, the Option shall not be exercisable, in whole or in
part, unless and until such listing or qualification, or a consent or approval
with respect thereto, shall have been effected or obtained free of any
conditions not acceptable to the Company.
15. No Obligation to Register
Option Shares. The Company shall be under no obligation to
register the Option Shares pursuant to the Securities Act or any other Federal
or state securities laws.
16. Market
Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the Securities Act for such period as the Company or its
underwriters may request (such period not to exceed 180 days following the date
of the applicable offering), the Optionee shall not, directly or indirectly,
sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell
any option or other contract for the purchase of, purchase any option or other
contract for the sale of, or otherwise dispose of or transfer, or agree to
engage in any of the foregoing transactions with respect to, any Option Shares
acquired under this Option Agreement without the prior written consent of the
Company or its underwriters.
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17. Protections Against
Violations of Agreement. No purported sale, assignment,
mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust
(voting or other) or other disposition of, or creation of a security interest in
or lien on, any of the Option Shares by any holder thereof in violation of the
provisions of this Agreement or the Certificate of Incorporation or the Bylaws
of the Company, will be valid, and the Company will not transfer any of said
Option Shares on its books nor will any of said Option Shares be entitled to
vote, nor will any dividends be paid thereon, unless and until there has been
full compliance with said provisions to the satisfaction of the
Company. The foregoing restrictions are in addition to and not in
lieu of any other remedies, legal or equitable, available to enforce said
provisions.
18. Withholding
Requirements. The Company's obligations under this Option
Agreement shall be subject to all applicable tax and other withholding
requirements, and the Company shall, to the extent permitted by law, have the
right to deduct any withholding amounts from any payment or transfer of any kind
otherwise due to the Optionee.
19. Failure to Enforce Not a
Waiver. The failure of the Company to enforce at any time any
provision of this Option Agreement shall in no way be construed to be a waiver
of such provision or of any other provision hereof.
20. Governing
Law. This Option Agreement shall be governed by and construed
according to the laws of the State of Minnesota without regard to its principles
of conflict of laws.
21. Incorporation of
Plan. The Plan is hereby incorporated by reference and made a
part hereof, and the Option and this Option Agreement shall be subject to all
terms and conditions of the Plan.
22. Amendments. This
Option Agreement may be amended or modified at any time only by an instrument in
writing signed by each of the parties hereto.
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23. Rights as a
Stockholder. Neither the Optionee nor any of the Optionee's
successors in interest shall have any rights as a stockholder of the Company
with respect to any shares of Common Stock subject to the Option until the date
of issuance of a stock certificate for such shares of Common Stock.
24. Agreement Not a Contract for
Services. Neither the Plan, the granting of the Option, this
Option Agreement nor any other action taken pursuant to the Plan shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Optionee has a right to continue to provide services as an officer,
director, employee, consultant or advisor of the Company or any Parent,
Subsidiary or affiliate of the Company for any period of time or at any specific
rate of compensation.
25. Authority of the
Board. The Board shall have full authority to interpret and
construe the terms of the Plan and this Option Agreement. The
determination of the Board as to any such matter of interpretation or
construction shall be final, binding and conclusive.
26. Acceptance. Optionee
hereby acknowledges receipt of a copy of the Plan and this Option
Agreement. Optionee has read and understands the terms and provision
thereof, and accepts the Option subject to all the terms and conditions of the
Plan and this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Option
Agreement on the day and year first above written.
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By
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Name
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Title
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The
Optionee
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16
EXHIBIT
A
NOTICE
OF EXERCISE
______________,
____
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: Secretary
On April
30, 2009, I was granted an option (an "Option") by Diverse Networks,
Inc. (the "Company") under the Company's 2007 Omnibus Stock Incentive Plan (the
"Plan") and a stock option agreement, between myself and the Company, dated as
of [____________] (the "Agreement"). This
letter is to notify you that I wish to purchase Option Shares under the
Agreement as set forth below.
Exercise of
Option
1. I
wish to purchase Option Shares
at the current exercise price of $0.10 per share for a total cost of
$_________.
2. I
am paying for these Option Shares as follows:
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___
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By
enclosing cash and/or a certified or cashier's check payable to the
Company in the amount of $______.
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3. I
am paying the local, state and federal withholding taxes and/or all other taxes
that the Company has advised me are due as follows:
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___
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By
enclosing cash and/or a certified or cashier's check payable to the
Company in the amount of $______.
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___
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By
authorizing the Company to withhold from the number of Option Shares I
would otherwise receive that number of Shares having a fair market value
equal to the minimum tax withholding
due.
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4. In
exercising my Option I hereby warrant and represent to the Company
that:
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A.
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I
have no contract, undertaking, agreement, or arrangement with any person
to sell or transfer to such person or to any third person any of the
Option Shares (other than any pledge or similar agreement entered into to
facilitate the exercise of the Option) and, I am acquiring such Option
Shares for investment only and not with a view toward
distribution.
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B.
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I
acknowledge that the Company has no obligation to issue a certificate
evidencing any Option Shares purchasable by me until the purchase price of
such Option Shares is fully paid as set forth in the Option
Agreement.
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| Very truly yours, | |
| Optionee | |
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Name
and Address (please print)
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Telephone
Number
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(
)
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Social
Security Number
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