NON-QUALIFIED STOCK OPTION AGREEMENT UNDER OF GABRIEL TECHNOLOGIES CORPORATION
EXHIBIT
10.18
UNDER
2006
EQUITY INCENTIVE PLAN
OF
▇▇▇▇▇▇▇
TECHNOLOGIES CORPORATION
STOCK
OPTION AGREEMENT
(this
“Agreement”) entered into this 19th
day of
January, 2006, between ▇▇▇▇▇▇▇
TECHNOLOGIES CORPORATION,
a
Delaware corporation (the “Corporation”), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
an
Eligible Person (as that term is defined by the Corporation’s 2006 Equity
Incentive Plan (the “Plan”)) (the “Optionee,” which term as used herein shall be
deemed to include any successor to the Optionee by will or by the laws of
descent and distribution, unless the context shall otherwise require, as
provided in the Plan).
Pursuant
to the Plan, the Administering Body approved the issuance to the Optionee,
effective as of the date set forth above, of a Non-qualified Stock Option to
purchase up to an aggregate of 500,000 shares of common stock of the Corporation
(the “Common Stock”), at the price of $1.00 per share (the “Option Price”), upon
the terms and conditions hereinafter set forth. (Capitalized terms used herein
but not defined herein shall have the meaning ascribed to them in the
Plan).
NOW,
THEREFORE,
in
consideration of the mutual premises and undertakings hereinafter set forth,
the
parties hereto agree as follows:
1. Option;
Option Price.
On
behalf of the Corporation, the Administering Body hereby grants as of the date
of this Agreement to the Optionee the option (the “Option”) to purchase, subject
to the terms and conditions of this Agreement and the provisions of the Plan
(which is incorporated by reference herein and which in all cases shall control
in the event of any conflict with the terms, definitions and provisions of
this
Agreement), 500,000 shares of Common Stock of the Corporation at an exercise
price per share equal to the Option Price. A copy of the Plan as in effect
on
the date hereof has been supplied to the Optionee, and the Optionee by executing
this Agreement hereby acknowledges receipt thereof.
2. Term.
The
term (the “Option Term”) of the Option shall commence on the date of this
Agreement and shall terminate on the fifth (5th) anniversary of the date of
this
Agreement, unless such Option shall theretofore have been terminated in
accordance with the terms hereof or the provisions of the Plan.
3. Vesting;
Restrictions on Exercise.
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(a) Subject
to the provisions of Sections 5 and 8 hereof, and unless accelerated, as set
forth in the Plan or as provided herein, the Option granted hereunder shall
vest
and become exercisable as on
April
1, 2007, if the audited financial statements of Resilent LLC (“Resilent”) report
at least $1,000,000 in pre-tax income (the “Performance Target”) for the twelve
month period ending March 31, 2007 (the “Performance Period”). If the
Performance Target is not met before the end of the Performance Period, then
the
Option shall vest and become exercisable on April 1, 2007, with respect to
a
number of shares of Common Stock equal to 500,000 multiplied by a fraction,
the
numerator of which is the pre-tax income of Resilent during the Performance
Period (as reported in its audited financial statements) and the denominator
of
which is $1,000.000.
(b) If
the
Corporation shall consummate any Reorganization not involving a Change in
Control in which holders of shares of Common Stock are entitled to receive
in
respect of such shares any securities, cash or other consideration (including,
without limitation, a different number of shares of Common Stock), the Option
shall thereafter be exercisable, in accordance with the Plan and this Agreement,
only for the kind and amount of securities, cash and/or other consideration
receivable upon such Reorganization by a holder of the same number of shares
of
Common Stock as are subject to the Option immediately prior to such
Reorganization, and any adjustments will be made to the terms of the Option
in
the sole discretion of the Administering Body as it may deem appropriate to
give
effect to the Reorganization. If the Corporation shall consummate any
Reorganization or other corporate transaction which involves a Change of
Control, the rights of Optionee as to any adjustments or other matters resulting
therefrom shall be as set forth in the Plan.
(c) Subject
to the provisions of Sections 5 and 8, shares as to which the Option becomes
exercisable pursuant to the foregoing provisions may be purchased at any time
thereafter prior to the expiration or termination of the Option.
4. Termination
of Option.
The
unexercised portion of the Option shall automatically and without notice
terminate and become null and void at the time of the expiration date of the
term of the Option.
5. Procedure
for Exercise.
(a) Subject
to the requirements of Section 8, the Option may be exercised, from time to
time, in whole or in part (but for the purchase of a whole number of shares
only), by delivery of a written notice, a form of which has been attached as
Annex A
hereto
(the “Notice”), from the Optionee to the Chief Financial Officer of the
Corporation, which Notice shall:
(i) state
that the Optionee elects to exercise the Option;
(ii) state
the
number of vested shares with respect to which the Option is being exercised
(the
“Optioned Shares”);
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(iii) state
the
date upon which the Optionee desires to consummate the purchase of the Optioned
Shares (which date must be prior to the termination of such Option and no later
than 30 days after the date of receipt of such Notice);
(iv) include
any representations of the Optionee required under Section 8(c);
and
(v) if
the
Option shall be exercised pursuant to Section 9 by any person other than the
Optionee, include evidence to the satisfaction of the Administering Body of
the
right of such person to exercise the Option.
(b) Payment
of the Option Price for the Optioned Shares shall be made in U.S. dollars by
personal check, bank draft or money order payable to the order of the
Corporation or by wire transfer.
(c) The
Corporation shall issue a stock certificate in the name of the Optionee (or
such
other person exercising the Option in accordance with the provisions of Section
9) for the Optioned Shares as soon as practicable after receipt of the Notice
and payment of the aggregate Option Price for such shares.
6. No
Rights as a Stockholder.
The
Optionee shall have no rights as a stockholder of the Corporation with respect
to any Optioned Shares until the date the Optionee or his nominee (which, for
purposes of this Agreement, shall include any third party agent selected by
the
Administering Body to hold such Optioned Shares on behalf of the Optionee),
guardian or legal representative is the holder of record of such Optioned
Shares.
7. Adjustments.
(a) If
at any
time while the Option is outstanding, (1) there shall be any increase or
decrease in the number of issued and outstanding shares of Common Stock through
the declaration of a stock dividend, stock split, combination of shares or
through any recapitalization resulting in a stock split-up, spin-off,
combination or exchange of shares of Common Stock or (2) the value of the
outstanding shares of Common Stock is reduced by reason of an extraordinary
cash
dividend, then,
and in
each such event, appropriate adjustment shall be made in the number of shares
and the exercise price per share covered by the Option, so that the same
proportion of the Corporation’s issued and outstanding shares of Common Stock
shall remain subject to purchase at the same aggregate exercise
price.
(b) Except
as
otherwise expressly provided herein, the issuance by the Corporation of shares
of its capital stock of any class, or securities convertible into shares of
capital stock of any class, either in connection with a direct sale or upon
the
exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be
made
with respect to, the number of or exercise price of shares of Common Stock
covered by the Option.
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(c) Without
limiting the generality of the foregoing, the existence of the Option shall
not
affect in any manner the right or power of the Corporation to make, authorize
or
consummate (i) any or all adjustments, recapitalizations, reorganizations or
other changes in the Corporation’s capital structure or its business; (ii) any
merger or consolidation of the Corporation; (iii) any issue by the Corporation
of debt securities, or preferred or preference stock that would rank above
the
shares of Common Stock covered by the Option; (iv) the dissolution or
liquidation of the Corporation; (v) any sale, transfer or assignment of all
or
any part of the assets or business of the Corporation; or (vi) any other
corporate act or proceeding, whether of a similar character or
otherwise.
8. Additional
Provisions Related to Exercise.
(a) The
Option shall be exercisable only in accordance with this Agreement and the
terms
of the Plan, including the provisions regarding the period when the Option
may
be exercised and the number of shares of Common Stock that may be acquired
upon
exercise.
(b) The
Option may not be exercised as to less than 100 shares of Common Stock at any
one time unless less than 100 shares of Common Stock remain to be purchased
upon
the exercise of the Option.
(c) To
exercise the Option, the Optionee shall follow the provisions of Section 5.
Upon
the exercise of the Option at a time when there is not in effect a registration
statement under the Securities Act of 1933, as amended (the “Securities Act”)
relating to the shares of Common Stock issuable upon exercise of the Option,
the
Administering Body in its discretion may, as a condition to the exercise of
the
Option, require the Optionee (i) to represent in writing that the shares of
Common Stock received upon exercise of the Option are being acquired for
investment and not with a view to distribution and (ii) to make such other
representations and warranties as are deemed appropriate by counsel to the
Corporation. No Option may be exercised and no shares of Common Stock shall
be
issued and delivered upon the exercise of the Option unless and until the
Corporation and/or the Optionee shall have complied with all applicable federal
or state registration, listing and/or qualification requirements and all other
requirements of law or of any regulatory agencies having
jurisdiction.
(d) Stock
certificates representing shares of Common Stock acquired upon the exercise
of
the Option that have not been registered under the Securities Act shall, if
required by the Administering Body, bear an appropriate legend which may, at
the
discretion of the Administering Body, take the following form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH
REGISTRATION IS NOT REQUIRED.”
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(e) The
exercise of each Option and the issuance of shares in connection with the
exercise of an Option shall, in all cases, be subject to each of the following
conditions: (i) compliance with the terms of the Plan and this Agreement, (ii)
the satisfaction of withholding tax or other withholding liabilities, (iii)
as
necessary, the listing, registration or qualification of any to-be-issued shares
upon any securities exchange, The Nasdaq Stock Market or other trading or
quotation system or under any federal or state law and (iv) the consent or
approval of any regulatory body. The Administering Body shall in its sole
discretion determine whether one or more of these conditions is necessary or
desirable to be satisfied in connection with the exercise of an Option and
prior
to the delivery or purchase of shares pursuant to the exercise of an Option.
The
exercise of an Option shall not be effective unless and until such condition(s)
shall have been satisfied or the Administering Body shall have waived such
conditions, in its sole discretion.
9. Restriction
on Transfer.
The
Option may not be assigned or transferred except by will or by the laws of
descent and distribution or pursuant to a qualified domestic relations order
as
defined in the IRC, and may be exercised during the lifetime of the Optionee
only by the Optionee or the Optionee’s guardian or legal representative or
assignee pursuant to a qualified domestic relations order. The Option shall
not
be subject to execution, attachment or similar process. Any attempted assignment
or transfer of the Option contrary to the provisions hereof, and the levy of
any
execution, attachment or similar process upon the Option, shall be null and
void
and without effect.
10. Notices.
All
notices or other communications which are required or permitted hereunder shall
be in writing and sufficient if (i) personally delivered, (ii) sent by
nationally-recognized overnight courier or (iii) sent by registered or certified
mail, postage prepaid, return receipt requested, addressed as
follows:
if
to the
Optionee, to the address set forth on the signature page hereto;
and
if
to the
Corporation, to:
▇▇▇▇▇▇▇
Technologies Corporation
▇▇▇▇
▇.
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇
▇▇▇▇▇
Attention:
President
or
to
such other address as the party to whom notice is to be given may have furnished
to each other party in writing in accordance herewith. Any such communication
shall be deemed to have been given (i) when delivered, if personally delivered,
(ii) on the first Business Day (as hereinafter defined) after dispatch, if
sent
by nationally-recognized overnight courier and (iii) on the third Business
Day
following the date on which the piece of mail containing such communication
is
posted, if sent by mail. As used herein, “Business Day” means a day that is not
a Saturday, Sunday or a day on which banking institutions in the city to which
the notice or communication is to be sent are not required to be
open.
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11. No
Waiver.
No
waiver of any breach or condition of this Agreement shall be deemed to be a
waiver of any other or subsequent breach or condition, whether of like or
different nature.
12. Optionee
Undertaking.
The
Optionee hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation or its counsel may in their reasonable
judgment deem necessary or advisable in order to carry out or effect one or
more
of the obligations or restrictions imposed on the Optionee pursuant to the
express provisions of this Agreement or the Plan.
13. Modification
of Rights.
The
rights of the Optionee are subject to modification and termination in certain
events as provided in this Agreement and the Plan.
14. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware applicable to contracts made and to be wholly performed
therein.
15. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
16. Entire
Agreement.
This
Agreement and the Plan constitute the entire agreement between the parties
with
respect to the subject matter hereof, and supersede all previously written
or
oral negotiations, commitments, representations and agreements with respect
thereto.
▇▇▇▇▇▇▇
Technologies Corporation
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Chairman & CEO
OPTIONEE:
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
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Annexes
Annex
A - Form
of
Exercise Notice
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ANNEX
A
EXERCISE
NOTICE
Ladies/Gentlemen:
I
hereby
exercise my Stock Option to purchase _________ shares of Common Stock of ▇▇▇▇▇▇▇
TECHNOLOGIES CORPORATION at the option price of $____ per share as provided
in
the Non-qualified Stock Option Agreement dated the ___ day of
________________.
I
acknowledge that I previously received a copy of the 2006 Equity Incentive
Plan
of Internet Venture Group, Inc. and executed a Stock Option Agreement, and
I
have carefully reviewed both documents.
I
have
considered the tax implications of my option and the exercise thereof. I hereby
tender my personal check, bank draft or money order payable to ▇▇▇▇▇▇▇
TECHNOLOGIES CORPORATION in the amount of $____________ or, I have wire
transferred $_______________ to ▇▇▇▇▇▇▇ TECHNOLOGIES CORPORATION, which transfer
shall be subject to the confirmation of receipt of funds by the Corporation.
[If
payment is to be made by wire transfer, the Optionee should contact the
Corporation’s Chief Financial Officer or Controller in advance to obtain wiring
instructions.]
____________________________________________
Optionee
______________________________________
Date
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