EXHIBIT 10.4
STOCK OPTION AGREEMENT
KEY EMPLOYEE OPTION
(Non-qualified)
Dated as of: ___________________
To: ________________________
Pursuant to the 2004 Stock Option Plan ("2004 Plan") of Tarpon Industries,
Inc. (the "Company") and with the approval of the Company's Board of Directors,
in accordance with the 2004 Plan, the Company hereby grants to you an option
(the "Option") to purchase ____________ (____) Common Shares of the Company (the
"Shares") at $____________ per Share, upon the terms and conditions contained in
this Stock Option Agreement and in the 2004 Plan, a copy of which is attached
to, and made a part of, this Stock Option Agreement.
1. The Option is intended to be a Nonqualified Option, as defined in
the 2004 Plan.
2. The Option herein granted may not be transferred by you otherwise
than by will or by the laws of descent and distribution, and during your
lifetime the Option is exercisable only by you.
3. (a) Subject to the other terms of this Option and the 2004 Plan,
you may exercise the Option in accordance with the following schedule:
(i) Between the date of this Option and [_________], none of the Shares
may be purchased.
(ii) Commencing [______________], one-third (1/3) of the Shares may be
purchased.
(iii) Commencing [______________], an additional one-third (1/3) of the
Shares may be purchased.
(iv) Commencing [______________], the final one-third (1/3) of the shares
may be purchased.
Notwithstanding anything in this Option to the contrary, the Option shall be
exercisable to purchase all of the Shares immediately to the extent not already
purchased, (i) ten (10) business days before the consummation of a "Transaction"
as defined in Paragraph 16 of the 2004 Plan, and (ii) upon the acquisition by
any person, entity or group (as defined pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended) of 51% or more of the Company's
outstanding voting securities.
(b) The Option shall expire (to the extent not previously
exercised), and all rights to exercise any unexercised portion of the Option
shall cease, on the earliest of (1) the 10th anniversary of the date of this
Option, (2) the date you cease to cease to hold any of the positions of an
employee, director, consultant or advisor of the Company or a subsidiary because
of termination or removal for cause, (3) only with respect to the portion of
this Option, if any, that
is exercisable as of the date of your termination or removal as an employee,
director, consultant or advisor of the Company or a subsidiary as a result of
your death or permanent disability, one year after the date of such termination
or removal, (4) only with respect to the portion of this Option, if any, that is
exercisable as of the date of your termination or removal as an employee,
director, consultant or advisor of the Company or a subsidiary not because of
termination or removal for cause, 90 days after the date of such termination or
removal, or (5) only with respect to the portion of this Option, if any, that is
not exercisable at the date of termination or removal, the date of such
termination or removal. Notwithstanding any other term or provision of this
Option to the contrary, the portion of this Option, if any, which is exercisable
at the date of termination of your employment, consultation or other service by
or to the Company or a subsidiary may be exercised until the expiration date set
forth in the preceding sentence.
4. The Option shall be exercised by giving a written notice of exercise
to the Treasurer of the Company. Such notice shall specify the number of Shares
to be purchased and shall be accompanied by payment in full of the aggregate
option price for the number of Shares purchased and by representation required
by paragraph 14 of the 2004 Plan if the Shares to be issued under the 2004 Plan
have not been registered under the Securities Act of 1933. Such exercise shall
be effective only upon the actual receipt of such written notice and no rights
or privileges of a shareholder of the Company in respect of any of the Shares
issuable upon the exercise of any part of the Option shall inure to you, or any
other person entitled to exercise the Option, unless and until certificates
representing such Shares shall have been issued. If at the time of exercise, the
Board of Directors allows for payment of all or any part of the exercise price
to be made by promissory note, the interest rate for the promissory note will be
a market rate.
5. It is understood and agreed that nothing contained in the 2004 Plan
or in this Agreement, nor any action taken by the Committee, shall confer upon
you any right with respect to the continuation of your employment by, or other
service to, the Company or any subsidiary, nor interfere in any way with the
right of the Company or a subsidiary to terminate your employment, or services,
at any time.
Very truly yours,
By: _____________________________
Its: _____________________________
The above is agreed to and accepted.
____________________________________
Dated: _____________________________
2
STOCK OPTION AGREEMENT
DIRECTOR AND CONSULTANT OPTION
Dated as of: __________________
To: _________________________
Pursuant to the 2004 Stock Option Plan ("2004 Plan") of Tarpon Industries,
Inc. (the "Company") and with the approval of the Company's Board of Directors,
in accordance with the 2004 Plan, the Company hereby grants to you an option
(the "Option") to purchase _______________ (______) Common Shares of the Company
(the "Shares") at $__________ per Share, upon the terms and conditions contained
in this Stock Option Agreement and in the 2004 Plan, a copy of which is attached
to, and made a part of, this Stock Option Agreement.
1. The Option is intended to be a Nonqualified Option, as defined in
the 2004 Plan.
2. The Option herein granted may not be transferred by you otherwise
than by will or by the laws of decent and distribution, during your lifetime the
Option is exercisable only by you.
3. (a) Subject to the other terms of this Option and the 2004 Plan,
you may exercise the Option in whole or in part at any time until the expiration
of this Option.
(b) The Option shall expire (to the extent not previously
exercised) on the earlier of (i) ten years after the date of this Option, and
(ii) the date you cease to be a director, employee or consultant of the Company
because of termination for cause.
4. The Option shall be exercised by giving a written notice of exercise
to the Treasurer of the Company. Such notice shall specify the number of Shares
to be purchased and shall be accompanied by payment in full of the aggregate
option price for the number of Shares purchased and by the representation
required by Paragraph 14 of the 2004 Plan if the Shares to be issued under the
2004 Plan have not been registered under the Securities Act of 1933. Such
exercise shall be effective only upon the actual receipt of such written notice
and no rights or privileges of a shareholder of the Company in respect of any
Shares issuable upon the exercise of any part of the Option shall inure to you,
or any other person entitled to exercise the Option, unless and until
certificates representing such Shares shall have been issued. If at the time of
exercise, the Board of Directors allows for payment of all or any part of the
exercise price to be made by promissory note, the interest rate for the
promissory note will be a market rate.
5. It is understood and agreed that nothing contained in the 2004 Plan
or in this Agreement, nor any action taken by the committee, shall confer upon
you any right with respect to the continuation your employment by, or other
service to, the Company or any subsidiary, nor interfere in any way with the
right of the Company or a subsidiary to terminate your employment by, or other
service to, the Company at any time.
Very truly yours,
By __________________________________
Its __________________________________
The above is agreed to and accepted.
___________________________________
Dated: ____________________________