Exhibit 10.2
Form of 12/31/98 Consultants' Option Agreement
WEBVALLEY, INC.
CONSULTANT NONSTATUTORY OPTION AGREEMENT
Between:
WebValley, Inc. (the "Company") and ______________ (the "Consultant"),
dated December 31, 1998.
The Company hereby grants to the Consultant an option (the "Option") to
purchase _______________ (_____) shares (the "Shares") of the Company's common
stock under the terms and conditions set forth below. The terms and conditions
applicable to the Option are as follows:
1. Nonstatutory Option. The Option shall be a Nonstatutory Option, and
is not intended to qualify as an incentive stock option within the meaning of
ss.422 of the Internal Revenue Code.
2. Exercise Price. The exercise price to purchase shares of the stock
shall be $1.00 per share, which is the approximate Fair Market Value of the
stock on the date of this Agreement.
3. Period of Exercise. The Option will expire at 5:00 p.m. on the date
(the "Expiration Date") five years from the date of this Agreement.
4. Vesting of Options. The Option will vest as follows:
(a) On and after the first anniversary of the effective date
of this Agreement, the Option may be exercised for not in excess of 20%
of the total grant.
(b) On and after the second anniversary of the effective date
of this Agreement, the option may be exercised for not in excess of 40%
of the total grant, including any purchases in prior periods.
(c) On and after the third anniversary of the effective date
of this Agreement, the option may be exercised for not in excess of 60%
of the total grant including any purchases in prior periods.
(d) On and after the fourth anniversary of the effective date
of this Agreement, the option may be exercised for not in excess of 80%
of the total grant, including any purchases in prior periods.
(e) On and after the fifth anniversary of the effective date
of this Agreement, the Option may be exercised at any time and from
time to time within its terms in whole or in part, but it shall not be
exercisable after the Expiration Date.
5. Transferability. This Option is not transferable except by will or
the laws of descent and distribution and may be exercised during the lifetime of
the Consultant only by the Consultant,
or if exercised following the Consultant's death, by the Consultant's legal
representative upon presenting evidence of authority to act on behalf of
Consultant's estate acceptable to the Company.
6. Termination of Engagement. In the event that engagement of the
Consultant with the Company is terminated, the Option may be exercised (to the
extent exercisable at the date of termination) by the Consultant within five
years from the date of this Agreement, but in no event after the Expiration
Date.
7. No Guarantee of Engagement. This Agreement shall in no way restrict
the right of the Company to terminate Consultant's engagement at any time.
8. Method of Exercise. The Option may be exercised, subject to the
terms and conditions of this Agreement, by written notice to the Company. The
notice shall be in the form attached to this Agreement and will be accompanied
by payment (in such form as the Company may specify) of the full purchase price
of the shares to be issued, and in the event of an exercise by the Consultant's
legal representative, appropriate proof of the right to exercise the Option. The
Company will issue and deliver certificates representing the number of shares
purchased under the Option, registered in the name of the Consultant (or the
Consultant's legal representative) as soon as practicable after receipt of the
notice. The Consultant does not have any rights or privileges as a stockholder
with respect to any Shares to be issued upon exercise of the Option until the
date of payment therefor to the Company.
9. Withholding; Taxable Income. In any case where withholding is
required or advisable under federal, state or local law in connection with any
exercise by Consultant hereunder, the Company is authorized to withhold
appropriate amounts from amounts payable to Consultant, or may require
Consultant to remit to the Company an amount equal to such appropriate amounts.
Consultant acknowledges and understands that under the provisions of
the Internal Revenue Code as presently in effect, the Consultant will have
taxable compensation income at the date of exercise of the Option equal to the
difference between the purchase price under the Option and the then fair market
value of the Stock. Consultant specifically agrees that as a condition to
permitting exercise, the Company may require that appropriate arrangements for
withholding be made with the Consultant as provided above.
10. Adjustment in Capitalization. In the event of any change in the
outstanding common stock of the Company by reason of a stock dividend or split,
recapitalization, reclassification, or other similar corporate change, the
aggregate number of Shares subject to the Option will be appropriately adjusted
by the Board of Directors of the Company, whose determination is final and
conclusive, except that fractional shares will be rounded to the nearest whole
share. In any such case, the number and kind of shares that are subject to the
Option and the Option exercise price per share will be proportionately adjusted
without any change in the aggregate Option price to be paid upon exercise of the
Option.
11. Amendment, Modification and Termination of Agreement. The Board of
Directors of the Company may at any time terminate, and from time to time may
amend or modify this
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Agreement; provided, however, that no amendment, modification, or termination of
this Agreement may in any manner adversely affect the Option without the consent
of the Optionee.
12. Securities Regulations.
12.1 Registration. In the event that the Company deems it necessary or
desirable to register or qualify the Option or any Shares with respect to which
the Option has been granted or exercised under the Securities Act of 1933, as
amended, or any other applicable statute or regulation, the Optionee will
cooperate with the Company and take such action as is necessary to permit
registration or qualification of the Option or the Shares. The foregoing
notwithstanding, the Company has no obligation to register the Option or any
Shares.
12.2 Investment Intent. Unless the Company has determined that the
following representation is unnecessary, each person exercising any portion of
the Option will be required, as a condition to the issuance of Shares pursuant
to exercise of the Option, to make a representation in writing (a) that he or
she is acquiring the Shares for his or her own account for investment and not
with a view to, or for sale in connection with, the distribution of any part
thereof, (b) that before any transfer in connection with the resale of the
Shares, he or she will obtain the written opinion of counsel for the Company, or
other counsel acceptable to the Company, that the Shares may be transferred. The
Company may also place a stop transfer order with its transfer agent with
respect to the Shares and require that the certificates representing the Shares
contain legends reflecting the foregoing.
12.3 Restrictions on Issuance of Shares. Notwithstanding the provisions
of Section 8, the Company may delay the issuance of Shares and the delivery of a
certificate for any Shares until one of the following conditions is satisfied:
(a) The Shares with respect to which the Option has been exercised are
at the time of issuance registered under applicable federal and state securities
laws as now in force or hereafter amended;
(b) A no-action letter in respect of the issuance of the Shares has
been obtained by the Company from the Securities and Exchange Commission and any
applicable state securities commissioner; or
(c) Counsel for the Company has given an opinion, which opinion will
not be unreasonably conditioned or withheld, that the Shares are exempt from
registration under applicable federal and state securities laws as now in force
or hereafter amended.
It is intended that all exercises of the Option will be effective, and
the Company will make reasonable efforts to bring about compliance with the
above conditions within a reasonable time, except that the Company is under no
obligation to cause a registration statement or a post-effective amendment to
any registration statement to be prepared at its expense solely for the purpose
of covering the issuance of Shares in respect of which the Option may be
exercised.
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13. Miscellaneous.
13.1 Requirements of Law. The granting of the Option and the issuance
of Shares are subject to all applicable laws, rules, and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
13.2 Choice of Law and Venue. This Agreement is made under and must be
governed by the laws of the State of Minnesota, and each of the parties hereto
consents to venue any suit or action under or with regard to this Agreement in
an appropriate court with jurisdiction in Hennepin County, Minnesota.
13.3 Notices. All notices, requests and other communications from
either party to the other hereunder must be given in writing and will be deemed
to have been duly given if personally delivered, or sent by first class,
certified mail, return receipt requested, postage prepaid, to the party at the
address as provided below, or to such other address as such party may hereafter
designate by written notice to the other party:
(a) If the Company, to the address of its then principal office; and
(b) If to the Optionee, to the address last shown in the records of the
Company, which as of the date of this Agreement is as follows:
________________________________
________________________________
13.4 No Obligation to Exercise. The granting of the Option imposes no
obligation upon the holder thereof to exercise the Option.
13.5 Amendments: Final Agreement. This Agreement contains the complete
and final understanding of the parties with respect to the subject matter hereof
and supersedes all prior understandings and statements, written and oral. This
Agreement may not be amended except in a written instrument signed by the party
against whom enforcement is sought.
13.6 Counterparts. This Agreement may be executed in counterparts, each
of which is an original and one in the same instrument.
13.7 Headings. Headings and captions used in this Agreement are for
convenience and do not affect the meaning hereof.
Executed to be effective as of the date first written above
WebValley, Inc.
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Its: President
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WEBVALLEY, INC.
NOTICE OF EXERCISE OF STOCK OPTION ISSUED
To: President
Profile National Business Directory, Inc.
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I hereby exercise my Option dated _____________, 19__ to purchase
_________ shares of $0.01 par value common stock of the Company at the option
exercise price of $1.00 per share. Enclosed is a certified or cashier's check in
the total amount of $ ______________ or payment in such other form as the
Company has specified. I acknowledge that I may be required to execute a
Subscription and Investment Representation Agreement prior to these shares being
issued, and I further acknowledge that I must agree to be bound by any then
existing Shareholders Agreement covering substantially all of the Company's
Shares.
I request that my shares be issued to me as follows:
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(Print your name in the form in which you wish to have the shares registered)
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(Social Security Number)
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(Street and Number)
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(City) (State) (Zip Code)
Dated: ________________, __________.
Signature: _____________________
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