EXHIBIT 10.56
BIGMAR, INC.
STOCK OPTION AGREEMENT
UNDER 1997 STOCK OPTION PLAN
INCENTIVE STOCK OPTION
December , 1997
AGREEMENT entered into by and between Bigmar, Inc., a Delaware corporation
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ (the "Company"), and the undersigned employee of the Company (the
"Optionee").
A. The Company desires to grant the Optionee a stock option under the
Company's 1997 Stock Option Plan (the "Plan") to acquire shares of the Company's
Common Stock, $.001 par value per share (the "Shares").
B. Options granted pursuant to the Plan may be designated as either
incentive stock options meeting the requirements of section 422 of the Internal
Revenue Code of 1986 (the "Code") or non-qualified stock options which are not
intended to meet the requirements of Section 422 of the Code.
ACCORDINGLY, in consideration of the premises and of the mutual covenants
and agreements contained herein, the Company and the Optionee hereby agree as
follows:
1. GRANT OF OPTION.
The Company hereby grants to the Optionee a incentive stock option (the
"Option") to purchase all or any part of an aggregate of the number of Shares
shown at the end of this Agreement on the terms and conditions hereinafter set
forth. This option is intended to be treated as an incentive stock option which
meets the requirements of an incentive stock option under section 422 of the
Code.
2. PURCHASE PRICE.
The purchase price ("Purchase Price") for the Shares covered by the Option
shall be $5 3/32 ($5.09375) per Share.
3. TIME OF EXERCISE OF OPTION.
The Option shall vest in three equal installments, the first installment
vesting on the date shareholder approval is obtained for the Plan and the second
and third installments vesting on the first and second anniversary dates of this
Agreement. To the extent the Option is not exercised by the Optionee when it
becomes exercisable,
it shall not expire, but shall be carried forward and shall be exercisable for a
period of five (5) years following the date of vesting, provided, however, that
no partial exercise of an Option shall be for less than one hundred (100) full
Shares.
Notwithstanding the contingency of shareholder approval contained in the
preceding paragraph, Options which were previously granted under the 1996 Stock
Option Plan and which are re-granted under modified terms of the 1997 Stock
Option Plan, shall vest in accordance with the provisions of the 1996 Stock
Option Plan.
4. TERM OF OPTION; EXERCISABILITY.
(a) TERM OF OPTION.
(i) Each Option shall expire five (5) years from the date of
vesting, except (a) as otherwise provided pursuant to the
provisions of Section 6(b) of the Plan, and (b) for earlier
termination as herein provided.
(ii) Except as otherwise provided in this Section 4, an Option
granted to any grantee whose employment, by the Company or
any of its subsidiaries, is terminated, shall terminate on
the earlier of (i) ninety (90) days after the date such
grantee's employment, for the Company or any such
subsidiary, is terminated, or (ii) the date on which the
option expires by its terms.
(iii) If the employment of a grantee is terminated by the Company
or any of its subsidiaries for cause or because the grantee
is in breach of any employment agreement or because the
grantee voluntarily terminates such employment, such Option
will terminate on the date the grantee's employment is
terminated by the Company or any such subsidiary, unless the
Board determines, at the time of such option, to extend such
option for a specified period (but not beyond the period
described in Section 4(a)(ii) hereof).
(iv) If the employment of a grantee is terminated by the Company
or any of its subsidiaries because the grantee has become
permanently disabled (within the meaning of Section 22(e)(3)
of the Code), such Option shall terminate on the earlier of
(i) one (1) year after the date such grantee's employment,
by the Company or any such subsidiary, is terminated, or
(ii) the date on which the Option expires by its terms.
(v) In the event of the death of any grantee, any Option granted
to
such grantee shall terminate one (1) year after the date of
death, or on the date on which the Option expires by its
terms, whichever occurs first.
(b) EXERCISABILITY.
(i) An Option granted to a grantee whose employment, by the
Company or any of its subsidiaries, is terminated, for
whatever reason, including, without limitation, death or
disability, shall be exercisable only to the extent that
such Option has accrued and vested, and is in effect on the
date such grantee's employment, by the Company or any such
subsidiary, is terminated.
5. MANNER OF EXERCISE OF OPTION.
(a) Pursuant to Section 9(b) of the Plan, to the extent that the right to
purchase Shares under an Option has accrued and is in effect, Options may be
exercised in full at one time or in part from time to time, by giving written
notice, signed by the person or persons exercising the Option, to the Company,
stating the number of Shares with respect to which the Option is being
exercised, accompanied by payment in full for such Shares as provided in Section
9(a) of the Plan. Upon such exercise, delivery of a certificate for paid-up
non-assessable Shares shall be made at the principal office of the Company to
the person or persons exercising the Option at such time, during ordinary
business hours, after thirty (30) days but not more than ninety (90) days from
the date of receipt of the notice by the Company, as shall be designated in such
notice, or at such time, place and manner as may be agreed upon by the Company
and the person or persons exercising the Option except as otherwise required by
Section 17 of the Plan.
(b) The Company shall at all times during the term of the Option reserve
and keep available such number of Shares as will be sufficient to satisfy the
requirements of the Option.
6. NON-TRANSFERABILITY.
The right of any Optionee to exercise any Option granted to him or her
shall not be assignable or transferable by such grantee other than by will or
the laws of descent and distribution, or the rules thereunder, and any such
Option shall be exercisable during the lifetime of such grantee only by him or
her. Any Option granted under the Plan shall be null and void and without effect
upon the bankruptcy of the grantee to whom the Option is granted, or upon any
attempted assignment or transfer, except as herein provided, including without
limitation, any purported assignment, whether voluntary or by operation of law,
pledge, hypothecation or other disposition, attachment, trustee process or
similar process, whether legal or equitable, upon such Option.
7. REPRESENTATION LETTER AND INVESTMENT LEGEND.
(a) In the event that for any reason the Shares to be issued upon
exercise of the Option shall not be effectively registered under the Securities
Act of 1933, as amended (the " 1933 Act") upon any date on which the Option is
exercised in whole or in part, the person exercising the option shall give a
written representation to the Company in the form attached hereto as Exhibit 1
and the Company shall place an "investment legend", so-called, as described in
Exhibit 1, upon any certificate for the Shares issued by reason of such
exercise.
(b) The Company shall be under no obligation to qualify the Shares or to
cause a registration statement or a post-effective amendment to any registration
statement to be prepared for the purposes of covering the issue of the Shares.
8. ADJUSTMENTS ON CHANGES IN CAPITALIZATION.
Adjustments on changes in capitalization and the like shall be made in
accordance with the Plan, as in effect on the date of this Agreement.
9. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or this Agreement shall be construed or
deemed by any person under any circumstances to bind the Company to continue the
employment of the Optionee for the period within which this Option may be
exercised. However, during the period of the Optionee's employment, the Optionee
shall render diligently and faithfully the services which are assigned to the
Optionee from time to time by the Board or by the executive officers of the
Company and shall at no time take any action which directly or indirectly would
be inconsistent with the best interests of the Company.
10. RIGHTS AS A STOCKHOLDER.
The Optionee shall have no rights as a stockholder with respect to any
Shares which may be purchased by exercise of this Option unless and until a
certificate or certificates representing such Shares are duly issued and
delivered to the Optionee.
11. WITHHOLDING TAXES.
Whenever Shares are to be issued upon exercise of this Option, the Company
shall have the right to require the Optionee to remit to the Company an amount
sufficient to satisfy all Federal, state and local withholding tax requirements
prior to the delivery of any certificate or certificates for such Shares. The
Company may agree to permit the Optionee to withhold Shares purchased upon
exercise of this Option to satisfy the above-mentioned withholding requirement;
provided, however, no such agreement may be made by an Optionee who is an
officer or director within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, except pursuant to a standing election to so
withhold Shares purchased upon exercise of an Option, such election to be made
in the form set forth in Exhibit 2 hereto and to be made not less than six (6)
months prior to the date of such exercise. Such election may be revoked by the
Optionee only upon six (6) months prior written notice to the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed,
and the Optionee has hereunto set his or her hand, all as of the day and year
first above written.
BIGMAR, INC.
By:
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Title:
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OPTIONEE:
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Name:
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Address
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Social Security Number
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Number of Shares
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Purchase Price Per Share
See Section 4(a)(i)
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Expiration Date
