EXHIBIT 10.3
FORM OF STOCK OPTION AGREEMENT ISSUED ON SEPTEMBER 17, 1998
FORM OF STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 17th day of September, 1998 (the "Grant
Date") is made and entered into by and between Computer Marketplace, Inc., a
Delaware corporation with its principal offices located at 0000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX (the "Company") and ____________________________________________
whose address is:_____________________________________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the
granting to the Optionee of stock options to purchase certain shares of the
Company's common stock, par value $.0001 per share ("Common Stock"), as
compensation for services rendered to the Company; and
WHEREAS, the Optionee desires to accept the grant of such options,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
1. GRANT OF OPTION. Subject to the provisions of this Agreement, the
Company hereby grants to the Optionee an option (the "Option") to purchase from
the Company __________________________ shares of Common Stock (the "Option
Shares") at an exercise price of $1.00 per share (the "Exercise Price").
2. TERM. This Option is exercisable for the period commencing on the
Grant Date and terminates on December 31, 2001 (the "Termination Date"), subject
to the provisions for termination and acceleration herein.
3. TERMINATION PROVISIONS. The right to exercise this Option is subject
to the following additional restrictions and limitations:
(a) TERMINATION OF EMPLOYMENT. If the Optionee is an employee of
the Company and employment by the Company or any of its subsidiaries of the
Optionee is terminated for any reason other than death, the Option may be
exercised for a period of one year after the later of (i) the date of such
termination or (ii) the effective date of a registration statement covering the
issuance and resale of the Option Shares; provided however, in no event shall
this option terminate after the Termination Date.
(b) DEATH OF OPTIONEE. If the Optionee shall die while this Option
remains exercisable, the Optionee's legal representative or representatives or
the persons entitled to do so under the Optionee's last will and testament or
under applicable intestate laws shall have the right to exercise this Option,
and such right shall expire and this Option shall terminate one year after the
date of the Optionee's death or on the expiration date of this Option, whichever
date is earlier. In all other respects, this Option shall terminate upon such
death.
4. ADJUSTMENTS AND CORPORATE REORGANIZATIONS. If the outstanding shares
of stock of the class then subject to this Option are changed into or exchanged
for a different number or kind of shares or securities or other forms of
property (including cash) or rights, as a result of one or more reorganizations,
recapitalizations, spin-offs, stock splits, reverse stock splits, stock
dividends or the like, appropriate adjustments shall be made in the number
and/or kind of shares or securities or other forms of property (including cash)
or rights for which this Option may thereafter be exercised, all without any
change in the aggregate exercise price applicable to the unexercised portions of
this Option, but with a corresponding adjustment in the exercise price per share
or other unit. No fractional share of stock shall be issued under this Option or
in connection with any such adjustment. Such adjustments shall be made by or
under authority of the Company's board of directors whose determinations as to
what adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to this Option are changed into
or exchanged for property (including cash), rights or securities not of the
Company's issue, or any combination thereof, or upon a sale of substantially all
the property of the Company to, this Option shall terminate, unless provisions
be made in writing in connection with such transaction for the assumption of
this Option, or the substitution for this Option of an option covering the stock
of a successor employer corporation, or a parent or a subsidiary thereof, with
appropriate adjustments in accordance with the provisions hereinabove in this
Section 4 as to the number and kind of shares optioned and their exercise
prices, in which event this Option shall continue in the manner and under the
terms so provided.
If this Option shall terminate pursuant to the next preceding
paragraph, the Optionee or other person then entitled to exercise this Option
shall have the right, at such time prior to the consummation of the transaction
causing such termination as the Company shall designate, to exercise the
unexercised portions of this Option, including the portions thereof which would,
but for this Section 4 not yet be exercisable.
5. EXERCISE, PAYMENT FOR AND DELIVERY OF STOCK. This Option may be
exercised by the Optionee or other person then entitled to exercise it by giving
four business days' written notice of exercise to the Company specifying the
number of shares to be purchased and the total purchase price, accompanied by a
check to the order of the Company in payment of such price. If the Company is
required to withhold on account of any federal, state or local tax imposed as a
result of such exercise, the notice of exercise shall also be accompanied by a
check to the order of the Company in payment of the amount thus required to be
withheld.
6. CASHLESS EXERCISE. The Optionee may exercise part or all of the
Option by tender to the Company of a written notice of exercise together with
advice of the delivery of an order to a broker to sell part or all of the Option
Shares, subject to such exercise notice and an irrevocable order to such broker
to deliver to the Company (or its transfer agent) sufficient proceeds from the
sale of such Option Shares to pay the exercise price and any withholding taxes.
All documentation and procedures to be followed in connection with such a
"cashless exercise", including the delivery of Option Shares having a fair
market value (after deduction of the applicable exercise price) equal to the
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exercise price,shall be approved in advance by the Company, which approval shall
be expeditiously provided and not unreasonably withheld.
7. RIGHTS IN STOCK BEFORE ISSUANCE AND DELIVERY. No person shall be
entitled to the privileges of stock ownership in respect of any shares issuable
upon exercise of this Option, unless and until such shares have been issued to
such person as fully paid shares.
8. REGISTRATION OF OPTION SHARES. The Company shall use reasonable
efforts to register the Option Shares for sale to the public and to maintain the
effectiveness of such registration.
9. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, which shall be addressed to each
party's respective address, as set forth in the first paragraph of this
Agreement, or to such other address as such party shall give to the other party
hereto by a notice given in accordance with this Section and, except as
otherwise provided in this Agreement, shall be effective when deposited in the
United States mail properly addressed and postage prepaid. If such notice is
sent other than by the United States mail, such notice shall be effective when
actually received by the party being noticed.
(b) ASSIGNMENT. This Agreement and the rights granted
hereunder may not be assigned in whole or in part by Optionee except by will or
the laws of descent and distribution, and the Option is exercisable during
Optionee's lifetime only by the Optionee.
(c) FURTHER ASSURANCES. Both parties hereto shall execute and
deliver such other instruments and do such other acts as may be reasonably
necessary to carry out the intent and purposes of this Agreement.
(d) GENDER. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms
and the singular form of nouns and pronouns shall include the plural and vice
versa.
(e) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(f) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminate,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
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(g) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition.
(h) SEVERABILITY. The invalidity or enforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase, or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(i) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
(j) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and upon the successors and assigns of the
Company.
(k) LITIGATION-ATTORNEYS' FEES. In connection with any
litigation arising out of the enforcement of this Agreement or for its
interpretation, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees, at the trial and all appellate levels from
the other party hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the Company has granted this Option on the date of
grant specified above.
COMPUTER MARKETPLACE, INC.
By: /s/L.XXXXX XXxXX
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L. Xxxxx Xxxxx
President
By:
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Optionee
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