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EXHIBIT 10.2
STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), effective as of _______, 199__, is made
and entered into by and between Citadel Technology, Inc., a Delaware corporation
(the "Company"), and ________________ (the "Optionee").
WHEREAS, the Company has awarded the stock option described in this
Agreement (the "Option") to the Optionee;
WHEREAS, the parties hereto desire to evidence in writing the terms and
conditions of the Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, and as an inducement to the Optionee
to continue as an employee of the Company or its subsidiaries and to promote the
success of the business of the Company and its subsidiaries, the parties hereby
agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, upon the
terms and subject to the conditions, limitations and restrictions set forth in
this Agreement, the Option to acquire _______ shares of Common Stock, at an
exercise price per share of $.___, effective as of the date of this Agreement
(the "Date of Grant"). The Optionee hereby accepts the Option from the Company.
2. Vesting. The shares of Common Stock subject to the Option shall vest in
two increments, with options to purchase _______ shares vested immediately and
options to purchase _______ shares vesting on each of the first ___
anniversaries of the date hereof.
3. Exercise. In order to exercise the Option with respect to any vested
portion, the Optionee shall provide written notice to the Company at its
principal executive office. At the time of exercise, the Optionee shall pay to
the Company the exercise price per share set forth in Section 1 times the number
of vested shares as to which the Option is being exercised. The Optionee shall
make such payment in cash, check or at the Company's option, by the delivery of
shares of Common Stock having a fair market value on the date immediately
preceding the exercise date equal to the aggregate exercise price. If the Option
is exercised in full, the Optionee shall surrender this Agreement to the Company
for cancellation. If the Option is exercised in part, the Optionee shall
surrender this Agreement to the Company so that the Company may make appropriate
notation hereon or cancel this Agreement and issue a new agreement representing
the unexercised portion of the Option.
4. Who May Exercise. The Option shall be exercisable only by the Optionee
except in the case of death or disability (determined by the Company). To the
extent exercisable after the Optionee's death or disability, the Option shall be
exercised only by the Optionee's representatives, executors, successors or
beneficiaries.
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5. Expiration of Option. The Option shall expire, and shall not be
exercisable with respect to any vested portion as to which the Option has not
been exercised, on the first to occur of: (a) the _____ anniversary of the Date
of Grant; (b) thirty days after the date of termination of the Optionee's
employment with the Company for any reason other than death or disability; or
(c) one year after any termination of the Optionee's employment with the Company
if such termination is due to the death or disability of the Optionee. The
Option shall expire, and shall not be exercisable, with respect to any unvested
portion, immediately upon the termination of the Optionee's employment with the
Company for any reason, including death or disability. The right of the Optionee
to receive any benefits from the Company after termination of employment with
the Company by reason of employment contract, severance arrangement or otherwise
shall not affect the determination that the Optionee's employment has been
terminated with the Company for purposes of this Agreement.
6. Tax Withholding. Any provision of this Agreement to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign, to withhold in connection with any of the shares of Common Stock
subject hereto.
7. Transfer of Option. The Optionee shall not, directly or indirectly,
sell, transfer, pledge, encumber or hypothecate ("Transfer") any unvested
portion of the Option or the rights and privileges pertaining thereto. In
addition, the Optionee shall not, directly or indirectly, Transfer any vested
portion of the Option other than by will or the laws of descent and
distribution. Any permitted transferee to whom the Optionee shall Transfer the
Option shall agree to be bound by this Agreement. Neither the Option nor the
underlying shares of Common Stock is liable for or subject to, in whole or in
part, the debts, contracts, liabilities or torts of the Optionee, nor shall they
be subject to garnishment, attachment, execution, levy or other legal or
equitable process.
8. Certain Legal Restrictions. The Company shall not be obligated to sell
or issue any shares of Common Stock upon the exercise of the Option or otherwise
unless the issuance and delivery of such shares shall comply with all relevant
provisions of law and other legal requirements including, without limitation,
any applicable federal or state securities laws and the requirements of any
stock exchange upon which shares of the Common Stock may then be listed. As a
condition to the exercise of the Option or the sale by the Company of any
additional shares of Common Stock to the Optionee, the Company may require the
Optionee to make such representations and warranties as may be necessary to
assure the availability of an exemption from the registration requirements of
applicable federal or state securities laws. The Company shall not be liable for
refusing to sell or issue any shares if the Company cannot obtain authority from
the appropriate regulatory bodies deemed by the Company to be necessary to
lawfully sell or issue such shares. In addition, the Company shall have no
obligation to the Optionee, express or implied, to list, register or otherwise
qualify any of the Optionee's shares of Common Stock. The shares of Common Stock
issued upon the exercise of the Option may not be transferred except in
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accordance with applicable federal or state securities laws. At the Company's
option, the certificate evidencing shares of Common Stock issued to the Optionee
may be legended as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED OR PLEDGED EXCEPT IN COMPLIANCE
WITH THE REQUIREMENTS OF SUCH ACT AND THE APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
Any Common Stock issued pursuant to the exercise of Options granted
pursuant to this Agreement to a person who would be deemed an officer or
director of the Company under Rule 16b-3 shall not be transferred until at least
six months have elapsed from the date of grant of such Option to the date of
disposition of the Common Stock underlying such Option.
9. Miscellaneous.
(a) The granting of the Option shall impose no obligation
upon the Optionee to exercise the Option or any part thereof. Nothing
contained in this Agreement shall affect the right of the Company to
terminate the Optionee at any time, with or without cause, or shall be
deemed to create any rights to employment on the part of the Optionee.
(b) The rights and obligations arising under this Agreement
are not intended to and do not affect the employment relationship that
otherwise exists between the Company and the Optionee, whether such
employment relationship is at will or defined by an employment
contract. Moreover, this Agreement is not intended to and does not
amend any existing employment contract between the Company and the
Optionee.
(c) Neither the Optionee nor any person claiming under or
through the Optionee shall be or shall have any of the rights or
privileges of a shareholder of the Company in respect of any of the
shares issuable upon the exercise of the Option herein unless and until
certificates representing such shares shall have been issued and
delivered to the Optionee or such Optionee's agent.
(d) Any notice to be given to the Company under the terms of
this Agreement or any delivery of the Option to the Company shall be
addressed to the Company at its principal executive offices, and any
notice to be given to the Optionee shall be addressed to the Optionee
at the address set forth in the Company's records, or at such other
address for a party as such party may hereafter
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designate in writing to the other. Any such notice shall be deemed to
have been duly given if mailed, postage prepaid, addressed as
aforesaid.
(e) Subject to the limitations in this Agreement on the
transferability by the Optionee of the Option and any shares of Common
Stock, this Agreement shall be binding upon and inure to the benefit of
the representatives, executors, successors or beneficiaries of the
parties hereto.
(f) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE
UNITED STATES, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
(g) If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, in whole or in part, then the
parties shall be relieved of all obligations arising under such
provision, but only to the extent that it is illegal, unenforceable or
void, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its
intent or, if that is not possible, by substituting therefor another
provision that is legal and enforceable and achieves the same
objectives.
(h) All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no
way shall define, limit, extend or describe the scope or intent of any
provisions of this Agreement.
(i) The parties shall execute all documents, provide all
information, and take or refrain from taking all actions as may be
necessary or appropriate to achieve the purposes of this Agreement.
(j) This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes
all prior agreements and understandings pertaining thereto.
(k) No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach
thereof shall constitute waiver of any such breach or any other
covenant, duty, agreement or condition.
(l) This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all the
parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart.
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(m) At any time and from time to time the Company may execute
an instrument providing for modification, extension, or renewal of any
outstanding option, provided that no such modification, extension or
renewal shall impair the Option in any respect without the consent of
the holder of the Option. Except as provided in the preceding sentence,
no supplement, modification or amendment of this Agreement or waiver of
any provision of this Agreement shall be binding unless executed in
writing by all parties to this Agreement. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision of this Agreement (regardless of whether
similar), nor shall any such waiver constitute a continuing waiver
unless otherwise expressly provided.
(n) In addition to all other rights or remedies available at
law or in equity, the Company shall be entitled to injunctive and other
equitable relief to prevent or enjoin any violation of the provisions
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
Citadel Technology, Inc.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
OPTIONEE:
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