EXHIBIT 4.2
[Form of Agreement - Option Grants to Employees]
TUXIS CORPORATION
STOCK OPTION AWARD AGREEMENT
THIS STOCK OPTION AWARD AGREEMENT (the "Agreement") is made and
entered into as of __________, _____, between Tuxis Corporation, a Maryland
corporation (the "Company"), and ______________ (the "Participant") pursuant to
the terms and conditions of the Company's 2006 Incentive Compensation Plan (the
"Plan"). In the event of any conflict between the Agreement and the Plan, the
terms of the Plan will govern. Unless otherwise provided, capitalized terms not
defined in the Agreement shall have the meanings set forth in the Plan. The
Options (as defined below) will lapse and be of no effect if a copy of the
Agreement, properly signed by the Participant, is not received by the Secretary
of the Company on or before the thirtieth (30th) day after the date hereof,
unless the Company (in its sole discretion) elects in writing to extend that
date.
1. Award of Options. Pursuant to the Plan, the Company hereby awards to the
Participant options (the "Options") to purchase the number of shares of
common stock, par value $.01 per share, of the Company (the "Stock") set
forth in Exhibit A hereto. The exercise price per share (the "Exercise
Price") of the Stock subject to the Options shall be as is set forth in
Exhibit A. The Options include [Incentive Stock Options] [and non-qualified
stock Options, as applicable,] as set forth on Exhibit A hereto; provided,
however, that to the extent, but only to the extent, that the provisions of
the Agreement or the nature of any actions taken by the Participant are
inconsistent with the treatment of the Options as Incentive Stock Options,
the Options shall be deemed to be non-qualified stock Options. A copy of
the Plan and the Plan Prospectus has been delivered to the Participant. By
signing below, the Participant agrees to be bound by all the provisions of
the Agreement and the Plan.
2. Vesting Schedule. Subject to the terms of the Plan and Section 6 hereof,
the Options shall vest and become exercisable as set forth in Exhibit A
hereto.
3. Expiration Date. Subject to the terms of the Plan and Section 6 hereof, the
Options shall expire five (5) years from the date hereof (the "Expiration
Date").
4. Exercise Procedures.
a. Exercise Notice. To exercise all or any part of the Options,
the Participant (or after the Participant's death, the
Participant's estate or any person who has acquired the
Options by bequest or inheritance) must first obtain
authorization from the Secretary of the Company by
submitting a Notice of Exercise in the form attached as
Exhibit B hereto to the Secretary of the Company or by other
means acceptable to the Secretary of the Company.
(1)
b. Payment of Exercise Price and Delivery of Shares. The
Exercise Price of the shares as to which Options are
exercised may be paid to the Company at the time of exercise
(i) in cash, (ii) by delivery to the Company of shares of
Stock, (iii) in any combination of cash and shares of Stock,
or (iv) by delivery of such other consideration as the
Committee deems appropriate and in compliance with
applicable law (including payment in accordance with a
cashless exercise program under which, if so instructed by
the Participant, shares of Stock may be issued directly to
the Participant's broker or dealer upon receipt of the
Exercise Price in cash from the broker or dealer). In the
event that any shares of Stock shall be transferred to the
Company to satisfy all or any part of the Exercise Price,
the part of the Exercise Price deemed to have been satisfied
by such transfer of shares of Stock shall be equal to the
product derived by multiplying the Fair Market Value per
share of Stock as of the date of exercise times the number
of shares of Stock transferred to the Company. The
Participant may not transfer to the Company in satisfaction
of the Exercise Price any fraction of a share of Stock, and
any portion of the Exercise Price that would represent less
than a full share of Stock must be paid in cash by the
Participant. Certificates for the purchased shares of Stock
will be issued and delivered to the Participant as soon as
practicable after the receipt of such payment of the
Exercise Price; provided, however, that delivery of any such
shares of Stock shall be deemed effective for all purposes
when a stock transfer agent of the Company shall have
deposited such certificates in the United States mail,
addressed to the Participant, at the address set forth in
Exhibit A hereto or to such other address as the Participant
may from time to time designate in a written notice to the
Company.
5. Non-transferability. Except to the extent otherwise determined by the
Committee, the Options granted hereunder shall not be assignable or
otherwise transferable other than by will or the laws of descent and
distribution or to a Beneficiary upon the death of the Participant. Unless
otherwise provided by the Committee, during the Participant's lifetime the
Options shall be exercisable and elections with respect to the Options may
be made only by the Participant or the Participant's guardian or legal
representative.
6. Termination of Employment.
a. Upon the Participant's termination of employment other than
by reason of death or Disability, the Participant may,
within three months from the date of such termination of
employment, exercise all or any part of the Options as were
exercisable at the date of termination of employment but
only if (x) the Participant resigns or retires and the
Committee consents to such resignation or retirement or (y)
if the Company initiates such termination, such termination
of employment is not for Cause. If such termination of
employment is for Cause or the Committee does not so
consent, the right of the Participant to exercise the
Options shall terminate at the date of termination of
employment. In no event, however, may any Option be
exercised after the time when it would otherwise expire.
(2)
b. Disability. Upon a Participant's Disability Date, the
Participant may, within one year after the Disability Date,
exercise all or a part of the Options that were exercisable
upon such Disability Date. In no event, however, may any
Option be exercised after the time when it would otherwise
expire.
c. Death. In the event of the death of the Participant while
employed by the Company, or prior to the expiration of the
Options as provided in Section 6.b above, to the extent all
or any part of the Options were exercisable as of the date
of the Participant's death, the right of the Participant's
Beneficiary to exercise the Options shall expire upon the
expiration of one year from the date of the Participant's
death (but in no event more than one year from the
Participant's Disability Date) or on the Expiration Date,
whichever is earlier. In all other cases of death following
the Participant's termination of employment, the
Participant's Beneficiary may exercise the Options within
the remaining time, if any, provided in Section 6.a above.
In the event of the Participant's death, the Committee may,
in its sole discretion, accelerate the right to exercise all
or any part of the Options that would not otherwise be
exercisable.
7. Withholding Tax. The Company shall be entitled to withhold (or secure
payment from the Participant in lieu of withholding) the amount of any
withholding or other tax required by law to be withheld or paid by the
Company with respect to any shares of Stock issuable under the Agreement,
or upon a disqualifying disposition of shares of Stock received pursuant to
the exercise of Incentive Stock Options, and the Company may defer issuance
of shares of Stock upon exercise of the Options unless the Company is
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the
Committee or its delegate and shall be payable by the Participant at such
time as the Committee determines. The Participant may satisfy his or her
tax withholding obligation by the payment of cash to the Company and/or by
the withholding from the Options, at the appropriate time, of a number of
shares of Stock sufficient, based upon the Fair Market Value of such shares
of Stock, to satisfy such tax withholding requirements. The Committee shall
be authorized, in its sole discretion, to establish such rules and
procedures relating to any such withholding methods as it deems necessary
or appropriate, including, without limitation, rules and procedures related
to elections to have shares of Stock withheld upon exercise of the Options
to meet such withholding obligations.
8. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by the laws of the State of
Maryland, without regard to conflict of law principles.
(3)
IN WITNESS WHEREOF, the parties hereto have executed the Agreement
as of the day and year first above written.
TUXIS CORPORATION
By: _____________________
Name:
Title:
[NAME OF PARTICIPANT]
___________________________
(4)
EXHIBIT A
TERMS OF STOCK OPTION AWARD
NUMBER OF SHARES OF STOCK EXERCISE PRICE
DATE OF GRANT TYPE OF GRANT SUBJECT TO THE OPTIONS PER SHARE OF STOCK(1)
------------- ------------- ---------------------- ---------------------
[ ] [ ] [ ] $[ ]
CUMULATIVE NUMBER OF SHARES OF STOCK IN
RESPECT OF
VESTING SCHEDULE(2) WHICH OPTIONS ARE EXERCISABLE
[ ] [ ] shares of Stock
[ ] [ ] shares of Stock
[ ] [ ] shares of Stock
Notice Addresses:
If to the Company: If to the Participant:
Tuxis Corporation [ ]
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o Tuxis Corporation
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Secretary ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
______________________________
1. The Exercise Price of the Stock will be the Fair Market Value per share of
Stock on the date of grant of the Options, except for Incentive Stock
Options granted to more than 10% holders where the Exercise Price of the
Stock will be 110% of the Fair Market Value per share of Stock on the Date
of grant of the Options.
2. NOTE: Under the Plan, unless otherwise provided in the Agreement, the
Options will become exercisable at the end of a period commencing on the
date of grant and ending on a date which is the sooner of three years from
the date grant or three years from commencement of services to the Company,
and if the Participant has more than three years of service on the date of
grant, the grant will vest immediately, subject to the Participant's
continued employment with the Company.
(5)
EXHIBIT B
NOTICE OF EXERCISE FORM
To: Tuxis Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
1. OPTIONS EXERCISED: Subject to the terms and conditions of the Stock
Option Award Agreement dated [ ] with Tuxis Corporation ("Tuxis"), I hereby
exercise the following Options:
Date of Grant Number of Shares Exercise Price Total Purchase Price
$ $
------------------------ ------------------------ ------------------------ -------------------------
$ $
------------------------ ------------------------ ------------------------ -------------------------
$ $
------------------------ ------------------------ ------------------------ -------------------------
$ $
------------------------ ------------------------ ------------------------ -------------------------
2. PAYMENT: The following must be received by Tuxis within [three (3)]
business days following the date of exercise:
o A check payable to Tuxis or a wire transfer to Tuxis in the amount of the
Total Purchase Price of the above-itemized Options; or
o A number of shares of Stock surrendered or sold to pay the Total Purchase
Price of the above-itemized Options; or
o A combination of (i) check payable to Tuxis or a wire transfer to Tuxis and
(ii) a number of shares of Stock surrendered or sold, which together amount
to the Total Purchase Price of the above-itemized Options.
If full payment of the Total Purchase Price of the Options listed in Item 1 is
not delivered within [three (3)] business days after the exercise date, Tuxis is
authorized forthwith to set off the balance due against any amounts due or which
may become due me to satisfy my obligation to pay the Total Purchase Price.
This Stock Option Exercise may not be revoked or changed after delivery of this
form, properly completed, dated and signed, to Tuxis whether or not payment
accompanies this form and whether this form is dated before, on or after the
date of such receipt.
_______________________________
(Signature)
Printed Name:
-----------------------------------
Dated:
--------------------------------------------
(6)
[Form of Agreement - Non-Qualified Option Grants to Non-Employee Directors]
TUXIS CORPORATION
STOCK OPTION AWARD AGREEMENT
THIS STOCK OPTION AWARD AGREEMENT (the "Agreement") is made and
entered into as of __________, _____, between Tuxis Corporation, a Maryland
corporation (the "Company"), and ______________ (the "Participant") pursuant to
the terms and conditions of the Company's 2006 Incentive Compensation Plan (the
"Plan"). In the event of any conflict between the Agreement and the Plan, the
terms of the Plan will govern. Unless otherwise provided, capitalized terms not
defined in the Agreement shall have the meanings set forth in the Plan. The
Options (as defined below) will lapse and be of no effect if a copy of the
Agreement, properly signed by the Participant, is not received by the Secretary
of the Company on or before the thirtieth (30th) day after the date hereof,
unless the Company (in its sole discretion) elects in writing to extend that
date.
1. Award of Options. Pursuant to the Plan, the Company hereby awards to the
Participant options (the "Options") to purchase the number of shares of
common stock, par value $.01 per share, of the Company (the "Stock") set
forth in Exhibit A hereto. The exercise price per share (the "Exercise
Price") of the Stock subject to the Options shall be as is set forth in
Exhibit A, such price being the Fair Market Value per share of Stock on the
date of grant of the Options. The Options are non-qualified stock Options.
A copy of the Plan and the Plan Prospectus has been delivered to the
Participant. By signing below, the Participant agrees to be bound by all
the provisions of the Agreement and the Plan.
2. Vesting Schedule. Subject to the terms of the Plan and Section 3 hereof,
the Options shall vest and become exercisable as set forth in Exhibit A
hereto.
3. Expiration Date. Subject to the terms of the Plan, the Options shall expire
at the earlier of (a) five (5) years from the date hereof or (b) three
months after the date the Participant ceases to serve as a director of the
Company for any reason (the "Expiration Date").
4. Exercise Procedures.
a. Exercise Notice. To exercise all or any part of the Options,
the Participant (or after the Participant's death, the Participant's
estate or any person who has acquired the Options by bequest or
inheritance) must first obtain authorization from the Secretary of the
Company by submitting a Notice of Exercise in the form attached as
Exhibit B hereto to the Secretary of the Company or by other means
acceptable to the Secretary of the Company.
(1)
b. Payment of Exercise Price and Delivery of Shares. The Exercise
Price of the shares as to which Options are exercised may be paid to
the Company at the time of exercise (i) in cash, (ii) by delivery to
the Company of shares of Stock, (iii) in any combination of cash and
shares of Stock, or (iv) by delivery of such other consideration as
the Committee deems appropriate and in compliance with applicable law
(including payment in accordance with a cashless exercise program
under which, if so instructed by the Participant, shares of Stock may
be issued directly to the Participant's broker or dealer upon receipt
of the Exercise Price in cash from the broker or dealer). In the event
that any shares of Stock shall be transferred to the Company to
satisfy all or any part of the Exercise Price, the part of the
Exercise Price deemed to have been satisfied by such transfer of
shares of Stock shall be equal to the product derived by multiplying
the Fair Market Value per share of Stock as of the date of exercise
times the number of shares of Stock transferred to the Company. The
Participant may not transfer to the Company in satisfaction of the
Exercise Price any fraction of a share of Stock, and any portion of
the Exercise Price that would represent less than a full share of
Stock must be paid in cash by the Participant. Certificates for the
purchased shares of Stock will be issued and delivered to the
Participant as soon as practicable after the receipt of such payment
of the Exercise Price; provided, however, that delivery of any such
shares of Stock shall be deemed effective for all purposes when a
stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the Participant,
at the address set forth in Exhibit A hereto or to such other address
as the Participant may from time to time designate in a written notice
to the Company.
5. Non-transferability. Except to the extent otherwise determined by the
Committee, the Options granted hereunder shall not be assignable or
otherwise transferable other than by will or the laws of descent and
distribution or to a Beneficiary upon the death of the Participant. Unless
otherwise provided by the Committee, during the Participant's lifetime the
Options shall be exercisable and elections with respect to the Options may
be made only by the Participant or the Participant's guardian or legal
representative.
6. Withholding Tax. The Company shall be entitled to withhold (or secure
payment from the Participant in lieu of withholding) the amount of any
withholding or other tax required by law to be withheld or paid by the
Company with respect to any shares of Stock issuable under the Agreement
and the Company may defer issuance of shares of Stock upon exercise of the
Options unless the Company is indemnified to its satisfaction against any
liability for any such tax. The amount of such withholding or tax payment
shall be determined by the Committee or its delegate and shall be payable
by the Participant at such time as the Committee determines. The
Participant may satisfy his or her tax withholding obligation by the
payment of cash to the Company and/or by the withholding from the Options,
at the appropriate time, of a number of shares of Stock sufficient, based
upon the Fair Market Value of such shares of Stock, to satisfy such tax
withholding requirements. The Committee shall be authorized, in its sole
discretion, to establish such rules and procedures relating to any such
withholding methods as it deems necessary or appropriate, including,
without limitation, rules and procedures related to elections to have
shares of Stock withheld upon exercise of the Options to meet such
withholding obligations.
7. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8. Governing Law. This Agreement shall be governed by the laws of the State of
Maryland, without regard to conflict of law principles.
(2)
IN WITNESS WHEREOF, the parties hereto have executed the Agreement
as of the day and year first above written.
TUXIS CORPORATION
By: ________________
Name:
Title:
[NAME OF PARTICIPANT]
_____________________
(3)
EXHIBIT A
TERMS OF STOCK OPTION AWARD
Date of Grant: [ ]
Number of shares of Stock subject to the Options: [ ]
Exercise Price per share of Stock: $[ ]
CUMULATIVE NUMBER OF SHARES OF STOCK IN
RESPECT OF
VESTING SCHEDULE(3) WHICH OPTIONS ARE EXERCISABLE
[ ] [ ] shares of Stock
[ ] [ ] shares of Stock
[ ] [ ] shares of Stock Notice Addresses:
If to the Company: If to the Participant:
Tuxis Corporation [ ]
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o Tuxis Corporation
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
_____________________________________
3. NOTE: Under the Plan, unless otherwise provided in the Agreement, the
Options will become exercisable a the end of a period commencing on the
date of grant and ending on a date which is sooner of three years from the
date of grant or three years from commencement of services to the Company,
and if the Participant has more than three years of service on the date of
grant, the grant will vest immediately, subject to the Participant's
continued employment with the Company.
(4)
EXHIBIT B
NOTICE OF EXERCISE FORM
To: Tuxis Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
1. OPTIONS EXERCISED: Subject to the terms and conditions of the Stock
Option Award Agreement dated [ ] with Tuxis Corporation ("Tuxis"), I hereby
exercise the following Options:
Date of Grant Number of Shares Exercise Price Total Purchase Price
$ $
------------------------ ------------------------ ------------------------ ------------------------
$ $
------------------------ ------------------------ ------------------------ ------------------------
$ $
------------------------ ------------------------ ------------------------ ------------------------
$ $
------------------------ ------------------------ ------------------------ ------------------------
2. PAYMENT: The following must be received by Tuxis within [three (3)]
business days following the date of exercise:
o A check payable to Tuxis or a wire transfer to Tuxis in the amount of the
Total Purchase Price of the above-itemized Options; or
o A number of shares of Stock surrendered or sold to pay the Total Purchase
Price of the above-itemized Options; or
o A combination of (i) check payable to Tuxis or a wire transfer to Tuxis and
(ii) a number of shares of Stock surrendered or sold, which together amount
to the Total Purchase Price of the above-itemized Options.
If full payment of the Total Purchase Price of the Options listed in Item 1 is
not delivered within [three (3)] business days after the exercise date, Tuxis is
authorized forthwith to set off the balance due against any amounts due or which
may become due me to satisfy my obligation to pay the Total Purchase Price.
This Stock Option Exercise may not be revoked or changed after delivery of this
form, properly completed, dated and signed, to Tuxis whether or not payment
accompanies this form and whether this form is dated before, on or after the
date of such receipt.
(Signature)
Printed Name:
-----------------------------------
Dated:
--------------------------------------------
(5)