EXHIBIT 10.8
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), is made and effective as
of the 31st day of December, 1996, by and between Advanced Electronic Support
Products, Inc., a Florida corporation with its principal place of business at
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and
_________________________________________________,_____________________________
________________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Optionee is willing to assist the Company in the further
development of its business;
WHEREAS, the Company is desirous of increasing the incentive of the
Optionee to exert Optionee's utmost efforts to improve the business and increase
the assets of the Company; and
WHEREAS, the Company is desirous of granting the Optionee certain
options (the "Options"), to purchase shares of Common Stock of the Company from
the Company upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. GRANT OF OPTION.
Subject to the terms and conditions of this Agreement, the Company
hereby grants to the Optionee, the option to purchase, at any time prior to 5:00
p.m. on January 1, 2007 (ten (10) years from the date hereof), an aggregate
100,000 shares of Common Stock of the Company (the "Option Shares"). The Options
shall expire pursuant to their terms on January 1, 2007 (ten (10) years from the
date hereof), unless sooner exercised by the Optionee as provided hereunder.
2. EXERCISE PRICE.
The Options shall be exercisable at $___ per share, which is the initial
public offering price of the Common Stock (the "Exercise Price"). The Optionee
shall pay all transfer taxes, if any, upon the exercise of the Options and all
other fees and expenses, if any, necessarily incurred by the Company in
connection therewith. The Exercise Price of the Options shall be subject to
adjustment in the event of changes in the capitalization of the Company, as set
forth in SECTION 5 hereto.
3. EXERCISABILITY OF OPTIONS.
(a) TIME AND AMOUNT OF EXERCISE. The Options may be exercised in whole
or in part at any time commencing as of the date hereof, but in no case may an
Option (i) be exercised as to less than one hundred (100) shares of Common Stock
at any one time, or the remaining shares of Common Stock covered by the Option
if less than one hundred (100), and (ii) be exercised more than ten years from
the date of its grant.
(b) MANNER OF EXERCISE. An Option granted hereunder shall be exercised
by the delivery by the holder thereof to the Company at its principal office (to
the attention of the Secretary of the Company) of written notice of the number
of full shares of Common Stock with respect to which the Option is being
exercised, accompanied by payment in full of the price for such shares of Common
Stock, (i) in cash or by certified or bank check payable to the order of the
Company,(ii) by delivery of shares of Common Stock already owned by the Optionee
and having a fair market value equal to the Exercise Price, or (iii) by a
combination of cash and Common Stock. The consideration for the Option may also
be paid in full by a broker-dealer to whom the optionee has submitted an
exercise notice consisting of a fully endorsed Option, or through any other
medium of payment as the Company, in its sole and absolute discretion, may
authorize in writing.
(c) TRANSFER OF OPTIONS. All Options granted hereunder shall not be
transferable and any Option granted hereunder may be exercised during the
lifetime of the holder thereof only by the holder. No Option granted hereunder
shall be subject to execution, attachment or other
process.
4. THE OPTIONEE'S INVESTMENT REPRESENTATIONS.
The Optionee hereby agrees, acknowledges, represents and warrants to the
Company the following:
(a) The Optionee is acquiring the Options hereunder for investment
purposes only and without the intent toward the further sale and/or distribution
thereof. In addition, the Optionee hereby agrees, acknowledges, represents and
warrants, that in the event of the exercise of any of the Options hereunder,
said Option Shares shall be acquired for investment purposes only and without
the intent toward the further sale and/or distribution thereof.
(b) Unless the Option Shares are registered in compliance with the
registration requirements of the Securities Act of 1933, as amended, and with
other applicable securities laws, the certificates evidencing the Option Shares
will bear a restrictive legend with respect to the sale or transfer thereof. Any
subsequent sale, transfer, assignment or disposition of the Option Shares, if
then otherwise permitted in accordance with any contractual commitment or
obligation entered into by the Optionee, must be made in compliance with the
registration requirements of the Securities Act of 1933, as amended, and with
other applicable securities laws or pursuant to an opinion of counsel,
reasonably satisfactory to the Company, that such registration is not required.
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(c) The Optionee is familiar with the business and financial condition
of the Company, and the Optionee has been afforded the opportunity to ask all
relevant questions of the Company's management with respect to the business and
financial condition of the Company. The Optionee further agrees to re-assert any
of said representations and warranties and to make any other representations and
warranties, as reasonably requested by the Company, as of the date of exercise
of any of said Options.
(d) The Optionee hereby further acknowledges, agrees, represents and
warrants that the issuance of the Option Shares upon the exercise of the Options
is conditioned, in part, upon the compliance with applicable securities laws.
The Optionee agrees to deliver to the Company any reasonable documentation
requested with respect thereto and further acknowledges and agrees that any said
exercise of the Options and the issuance of the Option Shares may only be
effectuated provided said exercise is in compliance with applicable laws and
regulations. In addition, the Optionee further acknowledges that the Company is
relying upon the representations and warranties of the Optionee hereunder with
respect to compliance by the Company with applicable securities laws and
regulations.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) In the event of a merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, or other change in corporate
structure affecting the shares of Common Stock of the Company, such adjustment
shall be made in the number of Option Shares, and the Exercise Price shall be
correspondingly adjusted to equitably reflect such change.
(b) Any adjustment in the number of Option Shares shall apply
proportionately to only the unexercised portion of the Options granted
hereunder. If fractions of an Option Share would result from any such
adjustment, the adjustment shall be revised to the next lower whole number of
Option Shares.
6. NO RIGHTS AS THE OPTIONEE.
The Optionee shall have no rights as a shareholder of the Company with
respect to the Option Shares issuable upon the exercise of Options granted
hereunder that have not been exercised and for which payment in full of the
applicable Exercise Price has not been made as provided herein. The delivery of
notice hereunder above of the Optionee's desire to exercise Options shall not
create any rights in the Optionee as a shareholder of the Company. The Optionee
shall have rights as a shareholder of the Company with respect to any Option
Shares only upon the tendering in full of the applicable Exercise Price to the
Company as provided herein.
7. PIGGY-BACK REGISTRATION.
(a) Within twelve (12) years from the date of this Agreement, whenever
the Company proposes to file a Registration Statement (as defined below), it
will, prior to such filing, give written
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notice to the Optionee of its intention to do so and, upon the written request
of the Optionee given within 5 days after the Company provides such notice
(which request shall state the intended method of disposition of the Registrable
Shares (defined below)), the Company shall use its best efforts to cause all
such shares of Common Stock underlying the Options (the "Registrable Shares")
which the Company has been requested by the Optionee to register to be
registered under the Securities Act of 1933, as amended, to the extent necessary
to permit their sale or other disposition in accordance with the intended
methods of distribution specified in the request of the Optionee; PROVIDED,
HOWEVER, that the Company shall have the right postpone or withdraw any
registration effected pursuant to this SECTION 7 without any obligation to the
Optionee whatsoever.
(b) In connection with any registration under this SECTION 7 involving
an underwritten offering, the Company shall not be required to include any
Registrable Shares in such registration unless the holder thereof accepts the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company. If, in the opinion of the managing
underwriter, it is appropriate because of marketing factors to limit the number
of Registrable Shares to be included in the offering, then the Company shall be
required to include in the registration only that number of Registrable Shares,
if any, which the managing underwriter believes should be included therein, and
shall be entitled to include before such Registrable Shares up to the number of
shares of Common Stock to be issued by the Company in the offering; PROVIDED,
HOWEVER, that no persons or entities other than the Company and the Optionee
shall be permitted to include securities in the offering. If the number of
Registrable Shares to be included in the offering in accordance with the
foregoing is less than the total number of shares which the holder of
Registrable Shares has requested to be included, then the holder of Registrable
Shares who has requested registration and other holders of securities entitled
to be included in such registration shall participate in the registration pro
rata based upon their total ownership of shares of Common Stock subject to the
managing underwriter's discretion.
(c) For the purposes of this SECTION 7 the term "Registration Statement"
means a registration statement filed by the Company with the Securities and
Exchange Commission for a public offering and sale of Common Stock (other than a
Registration Statement on Form S-4, or its successors, or any other form for a
similar limited purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
8. FURTHER CONDITIONS OF EXERCISE.
(a) DELIVERY OF SHARES BY COMPANY. The Company shall not be obligated to
deliver any shares of Common Stock until they have been listed on each
securities exchange on which the shares of Common Stock may then be listed or
until there has been qualification under or compliance with such state or
federal laws, rules or regulations as the Company may deem applicable. The
Company shall use reasonable efforts to obtain such listing, qualification and
compliance.
(b) WITHHOLDINGS. The Company may make such provisions and take such
steps as it may deem necessary or appropriate for the withholding of any taxes
that the Company is required
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by any law or regulation of any governmental authority, whether federal, state
or local, domestic or foreign, to withhold in connection with the exercise of
any Option, including, but not limited to, (i) the withholding of delivery of
shares of Common Stock upon exercise of Options until the holder reimburses the
Company for the amount the Company is required to withhold with respect to such
taxes, (ii) the canceling of any number of shares of Common Stock issuable upon
exercise of such Options in an amount sufficient to reimburse the Company for
the amount it is required to so withhold, or (iii) withholding the amount due
from any such person's wages or compensation due such person.
9. MISCELLANEOUS.
(a) INDULGENCES, ETC. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(b) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Florida, without
application to the principles of conflict of laws.
(c) NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when personally
delivered, one day following the day when deposited with an overnight courier
service for overnight priority service, such as Federal Express, for delivery to
the intended addressee or three days following the day when deposited in the
United States mails, first class postage prepaid, certified or registered mail,
and addressed as set forth in the first paragraph of this Agreement. Any person
may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this
Section for the giving of notice.
(d) BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns, except that no party
may assign or transfer its rights under this Agreement without the prior written
consent of the other parties hereto.
(e) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable
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by virtue of the fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part.
(f) SECTION HEADINGS. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
(g) NUMBER OF DAYS. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and holidays;
PROVIDED, HOWEVER that if the final day of any time period falls on a Saturday,
Sunday or holiday on which federal banks are or may elect to be closed, then the
final day shall be deemed to be the next day which is not a Saturday, Sunday or
such holiday.
(h) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their respective
successors and permitted assigns.
(i) ENTIRE AGREEMENT; AMENDMENTS. This Agreement (including the
documents and exhibits referred to herein) constitutes the entire agreement
among the parties and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, that may have related
in any way to the subject matter hereof. This Agreement may not be amended,
supplemented or modified in whole or in part except by an instrument in writing
signed by the party or parties against whom enforcement of any such amendment,
supplement or modification is sought.
(j) CONSTRUCTION. The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent, and
thereof strict construction shall be applied against any party. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to the rules and regulations promulgated thereunder, unless the context
requires otherwise. The parties intend that each representation, warranty, and
covenant contained herein shall have independent significance. If any party has
breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative levels of
specificity) which the party has not breached shall not detract from or mitigate
the fact that the party is in breach of the first representation, warranty or
covenant. This Agreement shall be neither construed against nor in favor of any
of the parties hereto, but rather in accordance with the fair meaning of its
content.
(k) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ADVANCED ELECTRONIC SUPPORT
PRODUCTS, INC.
By: ______________________________________
Name: _______________________________
Title:_______________________________
OPTIONEE:
__________________________________________
Print Name: ______________________________
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