EXHIBIT 10.41
INCENTIVE STOCK OPTION
_________________________, Optionee:
ELEXSYS INTERNATIONAL, INC. (the "Company"), pursuant to its 1995 Stock
Option Plan (the "Plan") has granted to you, the optionee named above, an option
to purchase shares of the common stock of the Company ("Common Stock"). This
option is intended to qualify as an "incentive stock option" within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers), directors or consultants. Defined terms not explicitly
defined in this agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total
number of shares of Common Stock subject to this option is ____________________
(__________).
2. VESTING. Subject to the limitations contained herein, 25%
of the shares will vest (become exercisable) on ____________, 19__ and 25% of
the shares will then vest each year thereafter until either (i) you cease to
provide services to the Company for any reason, or (ii) this option becomes
fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) Exercise Price. The exercise price of this option
is ___________ ($___________) per share, being not less than the fair market
value of the Common Stock on the date of grant of this option.
(b) Method of Payment. Payment of the exercise price
per share is due in full upon exercise of all or any part of each installment
which has accrued to you. You may elect, to the extent permitted by applicable
statutes and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in
cash (including check) at the time of exercise; or
(ii) Payment pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board which, prior to
the issuance of Common Stock,
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results in either the receipt of cash (or check) by the Company or the receipt
of irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds;
(iii) Provided that at the time of exercise the
Company's Common Stock is publicly traded and quoted regularly in the Wall
Street Journal, payment by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company's reported
earnings, and owned free and clear of any liens, claims, encumbrances or
security interests, which Common Stock shall be valued at its fair market value
on the date of exercise; or
(iv) Payment by a combination of the methods of
payment permitted by subparagraph 3(b)(i) through 3(b)(iii) above.
4. WHOLE SHARES. This option may not be exercised for any
number of shares which would require the issuance of anything other than whole
shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the
contrary contained herein, this option may not be exercised unless the shares
issuable upon exercise of this option are then registered under the Act or, if
such shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the
Act.
6. TERM. The term of this option commences on __________,
19__, the date of grant, and expires on _____________________ (the "Expiration
Date," which date shall be no more than ten (10) years from the date this option
is granted), unless this option expires sooner as set forth below or in the
Plan. In no event may this option be exercised on or after the Expiration Date.
This option shall terminate prior to the Expiration Date as follows: thirty (30)
days after the termination of your Continuous Status as an Employee, Director or
Consultant with the Company or an Affiliate of the Company (as defined in the
Plan) unless one of the following circumstances exists:
(a) Your termination of Continuous Status as an
Employee, Director or Consultant is due to your permanent and total disability
(within the meaning of Section 422(c)(6) of the Code). This option will then
expire on the earlier of the Expiration Date set forth above or twelve (12)
months following such termination of Continuous Status as an Employee, Director
or Consultant.
(b) Your termination of Continuous Status as an
Employee, Director or Consultant is due to your death or your death occurs
within thirty (30) days following your termination of Continuous Status as an
Employee, Director or Consultant for any other reason. This option will then
expire on the earlier of the Expiration Date set forth above or twelve (12)
months after your death.
2.
(c) If during any part of such thirty (30) day period
you may not exercise your option solely because of the condition set forth in
paragraph 5 above, then your option will not expire until the earlier of the
Expiration Date set forth above or until this option shall have been exercisable
for an aggregate period of thirty (30) days after your termination of Continuous
Status as an Employee, Director or Consultant.
(d) If your exercise of the option within thirty (30)
days after termination of your Continuous Status as an Employee, Director or
Consultant with the Company or with an Affiliate would result in liability under
section 16(b) of the Securities Exchange Act of 1934, then your option will
expire on the earlier of (i) the Expiration Date set forth above, (ii) the tenth
(10th) day after the last date upon which exercise would result in such
liability or (iii) six (6) months and ten (10) days after the termination of
your Continuous Status as an Employee, Director or Consultant with the Company
or an Affiliate.
However, this option may be exercised following termination of
Continuous Status of an Employee, Director or Consultant only as to that number
of shares as to which it was exercisable on the date of termination of
Continuous Status of an Employee, Director or Consultant under the provisions of
paragraph 2 of this option.
In order to obtain the federal income tax advantages associated with an
"incentive stock option," the Code requires that at all times beginning on the
date of grant of the option and ending on the day three (3) months before the
date of the option's exercise, you must be an employee of the Company or an
Affiliate, except in the event of your death or permanent and total disability.
The Company has provided for continued vesting or extended exercisability of
your option under certain circumstances for your benefit, but cannot guarantee
that your option will necessarily be treated as an "incentive stock option" if
you provide services to the Company or an Affiliate as a consultant or exercise
your option more than three (3) months after the date your employment with the
Company and all Affiliates terminates.
7. EXERCISE.
(a) This option may be exercised, to the extent
specified above, by delivering a notice of exercise (in a form designated by the
Company) together with the exercise price to the Secretary of the Company, or to
such other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require pursuant
to subsection 6(f) of the Plan.
(b) By exercising this option you agree that:
(i) as a precondition to the completion of any
exercise of this option, the Company may require you to enter an arrangement
providing for the payment by you to the Company of any tax withholding
obligation of the Company arising by reason of (A) the exercise
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of this option; (B) the lapse of any substantial risk of forfeiture to which the
shares are subject at the time of exercise; or (C) the disposition of shares
acquired upon such exercise;
(ii) you will notify the Company in writing
within fifteen (15) days after the date of any disposition of any of the shares
of the Common Stock issued upon exercise of this option that occurs within two
(2) years after the date of this option grant or within one (1) year after such
shares of Common Stock are transferred upon exercise of this option; and
(iii) the Company (or a representative of the
underwriters) may, in connection with the first underwritten registration of the
offering of any securities of the Company under the Act, require that you not
sell or otherwise transfer or dispose of any shares of Common Stock or other
securities of the Company during such period (not to exceed one hundred eighty
(180) days) following the effective date (the "Effective Date") of the
registration statement of the Company filed under the Act as may be requested by
the Company or the representative of the underwriters. You further agree that
the Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such period.
8. TRANSFERABILITY. This option is not transferable, except by
will or by the laws of descent and distribution, and is exercisable during your
life only by you. Notwithstanding the foregoing, by delivering written notice to
the Company, in a form satisfactory to the Company, you may designate a third
party who, in the event of your death, shall thereafter be entitled to exercise
this option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an
employment contract and nothing in this option shall be deemed to create in any
way whatsoever any obligation on your part to continue in the employ of the
Company, or of the Company to continue your employment with the Company. In
addition, nothing in this option shall obligate the Company or any Affiliate, or
their respective stockholders, Board of Directors, officers or employees to
continue any relationship which you might have as a Director or Consultant for
the Company or Affiliate.
10. NOTICES. Any notices provided for in this option or the
Plan shall be given in writing and shall be deemed effectively given upon
receipt or, in the case of notices delivered by the Company to you, five (5)
days after deposit in the United States mail, postage prepaid, addressed to you
at the address specified below or at such other address as you hereafter
designate by written notice to the Company.
4.
11. GOVERNING PLAN DOCUMENT. This option is subject to all the
provisions of the Plan, a copy of which is attached hereto and its provisions
are hereby made a part of this option, including without limitation the
provisions of Section 6 of the Plan relating to option provisions, and is
further subject to all interpretations, amendments, rules and regulations which
may from time to time be promulgated and adopted pursuant to the Plan. In the
event of any conflict between the provisions of this option and those of the
Plan, the provisions of the Plan shall control.
Dated the ____ day of __________________, 19__.
Very truly yours,
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By
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Duly authorized on behalf of the
Board of Directors
ATTACHMENTS:
Elexsys International, Inc. 1995 Stock Option Plan
Notice of Exercise
5.
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and liabilities
with respect to this option are set forth in the option and the Plan; and
(b) Acknowledges that as of the date of grant of this option,
it sets forth the entire understanding between the undersigned optionee and the
Company and its affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the undersigned
under stock option plans of the Company, and (ii) the following agreements only:
NONE
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(Initial)
OTHER
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OPTIONEE
Address:
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