EXHIBIT 10.1
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FORM OF NON-STATUTORY STOCK OPTION AGREEMENT
THIS NON-STATUTORY STOCK OPTION AGREEMENT ("Agreement") is
entered into as of this ___ day of _____, 1998, by and between
Telecomm Industries Corp., a Delaware corporation (the "Company"), and
Xxxx Xxxxxxx (the "Optionee").
WHEREAS, the Company has adopted the Telecomm Industries Corp.
1997 Stock Option and Award Plan (as amended from time to time, the
"Plan");
WHEREAS, capitalized terms used herein without definition have
the meanings assigned to them in the Plan;
WHEREAS,these options are not issued pursuant to the Plan, but
rather this Agreement;
WHEREAS, the Optionee is an Officer of the Company;
WHEREAS, the Optionee has assumed more duties in relation with
her promotion to the position as Vice President of Sales;
WHEREAS, the Company through its Board of Directors has approved
the grant to Optionee of Non-Statutory Stock Options to purchase
160,000 shares of Common Stock, par value $0.01 per share, of the
Company ("Common Stock"), which grant has, upon the Committee's
recommendation, been approved by the Board;
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF OPTIONS. The Company hereby grants Non-Statutory
Options to purchase up to 160,000 shares of Common Stock
(collectively, the "Option Shares") to the Optionee, subject to all of
the terms and conditions contained in this Agreement and the Plan.
The Non-Statutory Options are not "incentive stock options" within the
meaning of Section 422 of the Code.
2. TIMING OF EXERCISE. The Non-Statutory Stock Options are
immediately exercisable in full.
3. EXERCISE PRICE. The exercise price for the Non-Statutory
Options shall be $1.06 per Option Share (the "Exercise Price"), and
shall be due and payable, in cash, by certified or official bank
check, by money order, in shares of Common Stock or, in the sole
discretion of the Committee, by personal check in full or partial
payment of any Option Shares. The Optionee shall remit the
withholding tax, if any, owed by the Optionee under Section 10 below
with respect to the exercise of the Non-Statutory Options to the
Company along with the Exercise Price.
4. PROCEDURE FOR EXERCISE. In order to exercise the Non-
Statutory Options, the Optionee shall deliver to the Chairman of the
Board or Secretary of the Company or such agent as such officers may
delegate in their stead, the following: (i) the aggregate Exercise
Price and any withholding tax required under Section 10 below; (ii) a
completed and executed Exercise of Stock Option in the form attached
hereto as Exhibit A; and (iii) if required, the written representation
and/or other information described in Section 6 below. The Company
shall cause certificates for Option Shares purchased hereunder to be
delivered to the Optionee as soon as reasonably practicable
thereafter.
5. EXPIRATION OF OPTIONS. The unexercised portion, if any, of
the Non-Statutory Options shall automatically and without notice
terminate and become null and void on the earlier of June 5, 2008 or
the date determined in accordance with Section 10 of the Plan.
6. REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. The
Optionee represents and warrants that:
(a) The Optionee is aware that no federal or state agency has
made any finding or determination as to the fairness for public or
private investment in, nor any recommendation or endorsement of, the
Options or the Option Shares.
(b) The Optionee is aware that the Option Shares are not
registered under the Securities Act of 1933, as amended (the "Act"),
or the securities or "blue sky" laws of any state or jurisdiction,
including any non U.S. jurisdiction (the "Blue Sky Laws"), as of the
date of this Agreement, and the Company is under no obligation to
cause the Option Shares to be registered under the Act or the Blue Sky
Laws; and that in the event that the Option Shares are not registered
under the Act or the Blue Sky Laws for any reason at a time when the
Optionee desires to exercise all or any part of the Non-Statutory
Options, then, in addition to the other terms and conditions of this
Agreement, such exercise shall be conditioned upon determination by
the Committee that the Option Shares may be issued to the Optionee
without registration under the Act or the Blue Sky Laws. The
Committee may require the Optionee to deliver to the Company an
agreement or undertaking setting forth any factual information that
the Committee deems necessary to determine whether the Option Shares
may be issued to the Optionee without registration under the Act or
the Blue Sky Laws, including, without limitation, a representation and
warranty that the Optionee is acquiring the Option Shares for
investment and not with a view to, or for sale in connection with, the
distribution of any the Option Shares.
7. NON-REGISTRATION AND LEGEND. Nothing contained in this
Agreement shall require the Company to register the Option Shares
under the Act or the Blue Sky Laws or to continue any such
registration which may be in effect on or after the date of this
Agreement. If any such Option Shares are not so registered when
issued hereunder, then the certificate(s) for the Option Shares shall
bear a legend, in a form satisfactory to the Committee, restricting
the transfer of the Option Shares unless such transfer is registered
or exempt from registration under the Act or the Blue Sky Laws, and
the Option Shares shall not be transferred except in accordance with
such legend.
8. TRANSFERABILITY. The Optionee or any beneficiary thereof
shall have the power or right to sell, exchange, pledge, transfer,
assign or otherwise encumber or dispose of the Optionee's or such
beneficiary's Non-Statutory Stock Options only as follows: (i) to the
spouse or any children or grandchildren of such person that receives
Non-Statutory Stock Options under the Plan; (ii) as a charitable
contribution or gift to or for the use of any person or entity
described in Section 170(c) of the Code; (iii) to any Controlled Entity; or
(iv) by will or the laws of intestate succession.
9. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall not
have any rights as a stockholder with respect to any Option Shares
subject to the Non-Statutory Options prior to the date on which the
Optionee is recorded as the holder of such Option Shares on the
records of the Company; provided that the foregoing shall not diminish
or affect any rights the Optionee has under the Plan.
10. TAXES. The Company may make such provisions and take such
steps as it may deem necessary or appropriate for the withholding of
all federal, state, local and other taxes required by law to be
withheld with respect to the Non-Statutory Options including, but not
limited to: (i) reducing the number of Option Shares otherwise
deliverable, based upon their fair market value on the date of
exercise, to permit deduction of the amount of any such withholding
taxes from the amount otherwise payable under this Agreement; (ii)
deducting the amount of any such withholding taxes from any other
amount then or thereafter payable to the Optionee; or (iii) requiring
the Optionee, beneficiary or legal representative to pay to the
Company the amount required to be withheld or to execute such
documents as the Company deems necessary or desirable to enable it to
satisfy its withholding obligations as a condition of releasing the
Option Shares.
11. GENERAL PROVISIONS.
(a) The Company shall at all time during the term of the Non-
Statutory Options reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement in respect of vested Option Shares, shall pay all fees and
expenses necessarily incurred by the Company in connection therewith,
and shall use its best efforts to comply with all laws and regulations
that, in the reasonable opinion of counsel for the Company, are
applicable thereto.
(b) Any notice to be given hereunder by either party to the
other shall be in writing and shall be given either by personal
delivery, telecopied with confirmed receipt, or sent by certified,
registered or express mail, postage pre-paid, or sent by a national
next-day delivery service, postage pre-paid, return receipt requested,
addressed to the Company, at its headquarters, attention Chief
Executive Officer, or the Optionee, at such address as the Company has
on record, or such address as the Optionee provides to the Company in
writing, and shall be deemed given when so delivered personally, or
telecopied, or if mailed, two (2) days after the date of mailing, or
if by national next-day delivery service, on the date after delivery.
(c) The headings and other captions in this Agreement are for
convenience of reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
(d) THE PROVISIONS OF THIS AGREEMENT RELATE SOLELY TO GRANTING
OF THE NON-STATUTORY STOCK OPTIONS TO THE OPTIONEE PURSUANT TO THE
PLAN AS OF THE DATE HEREOF AND DO NOT ADDRESS OR RELATE TO ANY
CONDITIONS OF THE OPTIONEE'S EMPLOYMENT WITH THE COMPANY. NOTHING IN
THIS AGREEMENT OR THE PLAN SHALL CONFER UPON THE OPTIONEE ANY RIGHT OR
ENTITLEMENT WITH RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY
NOR INTERFERE IN ANY WAY WITH THE RIGHT OR POWER OF THE COMPANY TO
TERMINATE THE OPTIONEE'S EMPLOYMENT AT ANY TIME, WITH OR WITHOUT
CAUSE.
(e) No change or modification of this Agreement shall be valid
unless the same is in writing and signed by the Company and the
Optionee.
(f) No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought
to be enforced. The failure of any party at any time to insist upon
strict performance of any condition, promise, agreement or
understanding set forth herein shall not be construed as a waiver or
relinquishment of the right to insist upon strict performance of the
same or other condition, promise, agreement or understanding at a
future time.
(g) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the parties
hereto. Nothing in this Agreement is intended, and it shall not be
construed, to give any person or entity other than the parties hereto
any right, remedy or claim under or in respect of this Agreement or
any provisions hereof.
(h) This Agreement and all rights hereunder shall be governed
by, and construed and interpreted in accordance with, the laws of the
State of Illinois applicable to contracts made and to be performed
entirely within that State. In the event of any conflict between this
Agreement and the Plan, the provisions of the Plan shall govern,
unless the contrary is specifically stated herein.
(i) This Agreement, the Non-Competition Agreement and the Plan
set forth all of the agreements, warranties and representations among
the parties hereto and thereto with respect to the Non-Statutory
Options and the Option Shares, and there are no other promises,
agreements, conditions, understandings, representations or warranties,
oral or written, express or implied, among them with respect to the
Non-Statutory Options or the Option Shares other than as set forth
herein and therein. Any and all prior agreements with respect to the
Non-Statutory Options or the Option Shares are hereby revoked.
(j) This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall be deemed to be one and the
same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Optionee has executed
this Agreement, all as of the date first written above.
TELECOMM INDUSTRIES CORP.
____________________________________________
By: Xxxxx X. Xxxxxx
Its: Chairman and Chief Executive Officer
The undersigned Optionee hereby acknowledges receipt of an
executed original of this Stock Option Agreement and accepts the
option granted thereunder.
_______________________________________
Xxxx Xxxxxxx
EXHIBIT A
FORM OF EXERCISE OF NON-STATUTORY STOCK OPTION
Telecomm Industries Corp.
0000 X. Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xx. 00000
Attention: Chief Executive Officer
Gentlemen:
The undersigned Optionee hereby exercises all or a portion of the
Non-Statutory Options granted to him pursuant to the Non-Statutory
Stock Option Agreement dated as of __________, _____, between Telecomm
Industries, Corp. (the "Company") and the Optionee with respect to
__________ shares of Common Stock, par value $0.01 per share, of the
Company covered by said Non-Statutory Options, and tenders herewith at
the price of $__________ per share, of which $__________ represents
payment of the exercise price thereof and $__________ represents
payment of any withholding tax due.
The registered address on the share certificate to be issued to
the Optionee should be:_____________________________________________.
The Optionee's social security number is: _________________________.
Optionee:
___________________________________________
Signature
___________________________________________
Typed or Printed Name
___________________________________________
Date of Exercise
