EXHIBIT 10.12
INCENTIVE STOCK OPTION AGREEMENT
SCANNER TECHNOLOGIES CORPORATION
2004 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made effective as of this ____ day of _____________,
20____, by and between Scanner Technologies Corporation, a New Mexico
corporation (the "Company"), and _______________________________
("Participant").
W I T N E S S E T H:
WHEREAS, Participant on the date hereof is a key employee or officer of
the Company or one of its Subsidiaries; and
WHEREAS, the Company wishes to grant an incentive stock option to
Participant to purchase shares of the Company's Common Stock pursuant to the
Company's 2004 Equity Incentive Plan (the "Plan"); and
WHEREAS, the Administrator of the Plan has authorized the grant of an
incentive stock option to Participant and has determined that, as of the
effective date of this Agreement, the Fair Market Value of the Company's Common
Stock is $______ per share;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Participant on
the date set forth above (the "Date of Grant"), the right and option (the
"Option") to purchase all or portions of an aggregate of ______________________
(________) shares of Common Stock at a per share price of $______ on the terms
and conditions set forth herein, and subject to adjustment pursuant to Section
13 of the Plan. This Option is intended to be an incentive stock option within
the meaning of Section 422, or any successor provision, of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations thereunder, to the
extent permitted under Code Section 422(d).
2. DURATION AND EXERCISABILITY.
a. GENERAL. The term during which this Option may be
exercised shall terminate on the close of business on _________________, ______,
except as otherwise provided in Paragraphs 2(b) through 2(d) below. This Option
shall become exercisable according to the following schedule:
Vesting Date Number of Shares
------------ ----------------
Notwithstanding the foregoing, in the event of an acquisition
of the Company through the sale of substantially all of its assets or through a
merger, consolidation, exchange, reorganization, reclassification, extraordinary
dividend, reorganization, divestiture (including a spin-off) or liquidation of
the Company (collectively referred to as a "change of control transaction"),
this Option shall immediately become exercisable to the extent of One Hundred
Percent (100%) of the aggregate number of shares specified in Paragraph 1.
Once the Option becomes exercisable to the extent of one
hundred percent (100%) of the aggregate number of shares specified in Paragraph
1, Participant may continue to exercise this Option under the terms and
conditions of this Agreement until the termination of the Option as provided
herein. If Participant does not purchase upon an exercise of this Option the
full number of shares which Participant is then entitled to purchase,
Participant may purchase upon any subsequent exercise prior to this Option's
termination such previously unpurchased shares in addition to those Participant
is otherwise entitled to purchase.
b. TERMINATION OF EMPLOYMENT (OTHER THAN DISABILITY OR
DEATH). If Participant's employment with the Company or any Subsidiary is
terminated for any reason other than disability or death, this Option shall
completely terminate on the earlier of (i) the close of business on the
three-month anniversary date of such termination of employment, and (ii) the
expiration date of this Option stated in Paragraph 2(a) above. In such period
following the termination of Participant's employment, this Option shall be
exercisable only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of employment, but had not previously
been exercised. To the extent this Option was not exercisable upon such
termination of employment, or if Participant does not exercise the Option within
the time specified in this Paragraph 2(b), all rights of Participant under this
Option shall be forfeited.
c. DISABILITY. If Participant's employment terminates
because of disability (as defined in Code Section 22(e), or any successor
provision), this Option shall terminate on the earlier of (i) the close of
business on the twelve-month anniversary date of the such termination of
employment, and (ii) the expiration date of this Option stated in Paragraph 2(a)
above. In such period following the termination of Participant's employment,
this Option shall be exercisable only to the extent the Option was exercisable
on the vesting date immediately preceding such termination of employment, but
had not previously been exercised. To the extent this Option was not exercisable
upon such termination of employment, or if Participant does not exercise the
Option within the time specified in this Paragraph 2(c), all rights of
Participant under this Option shall be forfeited.
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d. DEATH. In the event of Participant's death, this Option
shall terminate on the earlier of (i) the close of business on the twelve-month
anniversary date of the date of Participant's death, and (ii) the expiration
date of this Option stated in Paragraph 2(a) above. In such period following
Participant's death, this Option shall be exercisable by the person or persons
to whom Participant's rights under this Option shall have passed by
Participant's will or by the laws of descent and distribution only to the extent
the Option was exercisable on the vesting date immediately preceding the date of
Participant's death. To the extent this Option was not exercisable upon the date
of Participant's death, or if such person or persons do not exercise this Option
within the time specified in this Paragraph 2(d), all rights under this Option
shall be forfeited.
3. MANNER OF EXERCISE.
a. GENERAL. The Option may be exercised only by Participant
(or other proper party in the event of death or incapacity), subject to the
conditions of the Plan and subject to such other administrative rules as the
Administrator may deem advisable, by delivering within the Option Period written
notice of exercise to the Company at its principal office. The notice shall
state the number of shares as to which the Option is being exercised and shall
be accompanied by payment in full of the Option price for all shares designated
in the notice. The exercise of the Option shall be deemed effective upon receipt
of such notice by the Company and upon payment that complies with the terms of
the Plan and this Agreement. The Option may be exercised with respect to any
number or all of the shares as to which it can then be exercised and, if
partially exercised, may be so exercised as to the unexercised shares any number
of times during the Option period as provided herein.
b. FORM OF PAYMENT. Subject to approval by the
Administrator, payment of the option price by Participant shall be in the form
of cash, personal check, certified check or previously acquired shares of Common
Stock of the Company, or any combination thereof. Any stock so tendered as part
of such payment shall be valued at its Fair Market Value as provided in the
Plan. For purposes of this Agreement, "previously acquired shares of Common
Stock" shall include shares of Common Stock that have been owned by Participant
for at least six (6) months prior to the time of exercise, or for such other
period of time as may be required by generally accepted accounting principles.
c. STOCK TRANSFER RECORDS. As soon as practicable after the
effective exercise of all or any part of the Option, Participant shall be
recorded on the stock transfer books of the Company as the owner of the shares
purchased, and the Company shall deliver to Participant one or more duly issued
stock certificates evidencing such ownership. The Company shall pay all
requisite original issue or transfer documentary stamp taxes.
4. MISCELLANEOUS.
a. EMPLOYMENT; RIGHTS AS SHAREHOLDER. This Agreement shall
not confer on Participant any right with respect to continuance of employment by
the Company or any of its Subsidiaries, nor will it interfere in any way with
the right of the Company to terminate such employment. Participant shall have no
rights as a shareholder with respect to shares subject to this Option until such
shares have been issued to Participant upon exercise of this Option. No
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adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions or other rights for which the
record date is prior to the date such shares are issued, except as provided in
Section 13 of the Plan.
b. SECURITIES LAW COMPLIANCE. The exercise of all or any
parts of this Option shall only be effective at such time as counsel to the
Company shall have determined that the issuance and delivery of Common Stock
pursuant to such exercise will not violate any state or federal securities or
other laws. Participant may be required by the Company, as a condition of the
effectiveness of any exercise of this Option, to agree in writing that all
Common Stock to be acquired pursuant to such exercise shall be held, until such
time that such Common Stock is registered and freely tradable under applicable
state and federal securities laws, for Participant's own account without a view
to any further distribution thereof, that the certificates for such shares shall
bear an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and
federal securities laws.
c. MERGERS, RECAPITALIZATIONS, STOCK SPLITS, ETC. Pursuant
and subject to Section 13 of the Plan, certain changes in the number or
character of the Common Stock of the Company (through sale, merger,
consolidation, exchange, reorganization, divestiture (including a spin-off),
liquidation, recapitalization, stock split, stock dividend or otherwise) shall
result in an adjustment, reduction or enlargement, as appropriate, in
Participant's rights with respect to any unexercised portion of the Option
(i.e., Participant shall have such "anti-dilution" rights under the Option with
respect to such events, but shall not have "preemptive" rights).
d. SHARES RESERVED. The Company shall at all times during
the option period reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of this Agreement.
e. WITHHOLDING TAXES ON DISQUALIFYING DISPOSITION. In the
event of a disqualifying disposition of the shares acquired through the exercise
of this Option, Participant hereby agrees to inform the Company of such
disposition. Upon notice of a disqualifying disposition, the Company may take
such action as it deems appropriate to insure that, if necessary to comply with
all applicable federal or state income tax laws or regulations, all applicable
federal and state payroll, income or other taxes are withheld from any amounts
payable by the Company to Participant. If the Company is unable to withhold such
federal and state taxes, for whatever reason, Participant hereby agrees to pay
to the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal or state law. Participant may, subject to the
approval and discretion of the Administrator or such administrative rules it may
deem advisable, elect to have all or a portion of such tax withholding
obligations satisfied by delivering shares of the Company's Common Stock or by
electing to have the Company withhold shares of Common Stock otherwise issuable
to Participant. Such shares shall have a Fair Market Value equal to the minimum
required tax withholding, based on the minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are applicable to
the supplemental income resulting from the disqualifying disposition of the
shares acquired through the exercise of this Option. In no event may the Company
withhold shares having a Fair Market Value in excess of such statutory minimum
required tax withholding.
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f. NONTRANSFERABILITY. During the lifetime of Participant,
the accrued Option shall be exercisable only by Participant or by the
Participant's guardian or other legal representative, and shall not be
assignable or transferable by Participant, in whole or in part, other than by
will or by the laws of descent and distribution.
g. 2004 EQUITY INCENTIVE PLAN. The Option evidenced by this
Agreement is granted pursuant to the Plan, a copy of which Plan has been made
available to Participant and is hereby incorporated into this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. The Plan governs this Option and, in the event of any questions as
to the construction of this Agreement or in the event of a conflict between the
Plan and this Agreement, the Plan shall govern, except as the Plan otherwise
provides.
h. LOCKUP PERIOD LIMITATION. Participant agrees that in the
event the Company advises Participant that it plans an underwritten public
offering of its Common Stock in compliance with the Securities Act of 1933, as
amended, and that the underwriter(s) seek to impose restrictions under which
certain shareholders may not sell or contract to sell or grant any option to buy
or otherwise dispose of part or all of their stock purchase rights of the
underlying Common Stock, Participant hereby agrees that for a period not to
exceed 180 days from the prospectus, Participant will not sell or contract to
sell or grant an option to buy or otherwise dispose of this option or any of the
underlying shares of Common Stock without the prior written consent of the
underwriter(s) or its representative(s).
i. BLUE SKY LIMITATION. Notwithstanding anything in this
Agreement to the contrary, in the event the Company makes any public offering of
its securities and determines in its sole discretion that it is necessary to
reduce the number of issued but unexercised stock purchase rights so as to
comply with any state securities or Blue Sky law limitations with respect
thereto, the Board of Directors of the Company shall have the right (i) to
accelerate the exercisability of this Option and the date on which this Option
must be exercised, provided that the Company gives Participant 15 days' prior
written notice of such acceleration, and (ii) to cancel any portion of this
Option or any other option granted to Participant pursuant to the Plan which is
not exercised prior to or contemporaneously with such public offering. Notice
shall be deemed given when delivered personally or when deposited in the United
States mail, first class postage prepaid and addressed to Participant at the
address of Participant on file with the Company.
j. ACCOUNTING COMPLIANCE. Participant agrees that, if a
merger, reorganization, liquidation or other "transaction" as defined in Section
13 of the Plan occurs, and Participant is an "affiliate" of the Company or any
Subsidiary (as defined in applicable legal and accounting principles) at the
time of such transaction, Participant will comply with all requirements of Rule
145 of the Securities Act of 1933, as amended, and the requirements of such
other legal or accounting principles, and will execute any documents necessary
to ensure such compliance.
k. STOCK LEGEND. The Administrator may require that the
certificates for any shares of Common Stock purchased by Participant (or, in the
case of death, Participant's successors) shall bear an appropriate legend to
reflect the restrictions of Paragraph 4(b) and Paragraphs 4(h) through 4(j) of
this Agreement.
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l. SCOPE OF AGREEMENT. This Agreement shall bind and inure
to the benefit of the Company and its successors and assigns and Participant and
any successor or successors of Participant permitted by Paragraph 2 or Paragraph
4(f) above.
m. ARBITRATION. Any dispute arising out of or relating to
this Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of any
such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney
who has practiced securities or business litigation for at least 10 years. If
the parties cannot agree on an arbitrator within 20 days, any party may request
that the chief judge of the District Court for Hennepin County, Minnesota,
select an arbitrator. Arbitration will be conducted pursuant to the provisions
of this Agreement, and the commercial arbitration rules of the American
Arbitration Association, unless such rules are inconsistent with the provisions
of this Agreement. Limited civil discovery shall be permitted for the production
of documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs and
fees, including the arbitrator's fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys' fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
SCANNER TECHNOLOGIES CORPORATION
By:
----------------------------------------
Its:
-----------------------------------
--------------------------------------------
Participant
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NONQUALIFIED STOCK OPTION AGREEMENT
SCANNER TECHNOLOGIES CORPORATION
2004 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made effective as of this ____ day of _____________,
20____, by and between Scanner Technologies Corporation, a New Mexico
corporation (the "Company"), and _______________________________
("Participant").
W I T N E S S E T H:
WHEREAS, Participant on the date hereof is a key employee, officer or
director of or consultant or advisor to the Company or one of its Subsidiaries;
and
WHEREAS, the Company wishes to grant a nonqualified stock option to
Participant to purchase shares of the Company's Common Stock pursuant to the
Company's 2004 Equity Incentive Plan (the "Plan"); and
WHEREAS, the Administrator of the Plan has authorized the grant of a
nonqualified stock option to Participant and has determined that, as of the
effective date of this Agreement, the Fair Market Value of the Company's Common
Stock is $______ per share;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Participant on
the date set forth above (the "Date of Grant"), the right and option (the
"Option") to purchase all or portions of an aggregate of ______________________
(_________ ) shares of Common Stock at a per share price of $_______ on the
terms and conditions set forth herein, and subject to adjustment pursuant to
Section 13 of the Plan. This Option is not intended to be an incentive stock
option within the meaning of Section 422, or any successor provision, of the
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder.
2. DURATION AND EXERCISABILITY.
a. GENERAL. The term during which this Option may be
exercised shall terminate on the close of business on ________________, _____,
except as otherwise provided in Paragraphs 2(b) through 2(d) below. This Option
shall become exercisable according to the following schedule:
Vesting Date Number of Shares
------------ ----------------
Notwithstanding the foregoing, in the event of an acquisition
of the Company through the sale of substantially all of its assets or through a
merger, consolidation, exchange, reorganization, reclassification, extraordinary
dividend, reorganization, divestiture (including a spin-off) or liquidation of
the Company (collectively referred to as a "change of control transaction"),
this Option shall immediately become exercisable to the extent of One Hundred
Percent (100%) of the aggregate number of shares specified in Paragraph 1.
Once the Option becomes exercisable to the extent of one
hundred percent (100%) of the aggregate number of shares specified in Paragraph
1, Participant may continue to exercise this Option under the terms and
conditions of this Agreement until the termination of the Option as provided
herein. If Participant does not purchase upon an exercise of this Option the
full number of shares which Participant is then entitled to purchase,
Participant may purchase upon any subsequent exercise prior to this Option's
termination such previously unpurchased shares in addition to those Participant
is otherwise entitled to purchase.
b. TERMINATION OF RELATIONSHIP (OTHER THAN DISABILITY OR
DEATH). If Participant's relationship with the Company or any Subsidiary is
terminated for any reason other than disability or death, this Option shall
completely terminate on the earlier of (i) the close of business on the
three-month anniversary date of such termination of relationship, and (ii) the
expiration date of this Option stated in Paragraph 2(a) above. In such period
following the termination of Participant's relationship, this Option shall be
exercisable only to the extent the Option was exercisable on the vesting date
immediately preceding such termination of relationship, but had not previously
been exercised. To the extent this Option was not exercisable upon such
termination of relationship, or if Participant does not exercise the Option
within the time specified in this Paragraph 2(b), all rights of Participant
under this Option shall be forfeited.
c. DISABILITY. If Participant's relationship with the
Company or any Subsidiary terminates because of disability (as defined in Code
Section 22(e), or any successor provision), this Option shall terminate on the
earlier of (i) the close of business on the twelve-month anniversary date of the
such termination of relationship, and (ii) the expiration date of this Option
stated in Paragraph 2(a) above. In such period following the termination of
Participant's relationship, this Option shall be exercisable only to the extent
the Option was exercisable on the vesting date immediately preceding such
termination of relationship, but had not previously been exercised. To the
extent this Option was not exercisable upon such termination of relationship, or
if Participant does not exercise the Option within the time specified in this
Paragraph 2(c), all rights of Participant under this Option shall be forfeited.
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d. DEATH. In the event of Participant's death, this Option
shall terminate on the earlier of (i) the close of business on the twelve-month
anniversary date of the date of Participant's death, and (ii) the expiration
date of this Option stated in Paragraph 2(a) above. In such period following
Participant's death, this Option shall be exercisable by the person or persons
to whom Participant's rights under this Option shall have passed by
Participant's will or by the laws of descent and distribution only to the extent
the Option was exercisable on the vesting date immediately preceding the date of
Participant's death. To the extent this Option was not exercisable upon the date
of Participant's death, or if such person or persons do not exercise this Option
within the time specified in this Paragraph 2(d), all rights under this Option
shall be forfeited.
3. MANNER OF EXERCISE.
a. GENERAL. The Option may be exercised only by Participant
(or other proper party in the event of death or incapacity), subject to the
conditions of the Plan and subject to such other administrative rules as the
Administrator may deem advisable, by delivering within the Option Period written
notice of exercise to the Company at its principal office. The notice shall
state the number of shares as to which the Option is being exercised and shall
be accompanied by payment in full of the Option price for all shares designated
in the notice. The exercise of the Option shall be deemed effective upon receipt
of such notice by the Company and upon payment that complies with the terms of
the Plan and this Agreement. The Option may be exercised with respect to any
number or all of the shares as to which it can then be exercised and, if
partially exercised, may be so exercised as to the unexercised shares any number
of times during the Option period as provided herein.
b. FORM OF PAYMENT. Subject to approval by the
Administrator, payment of the option price by Participant shall be in the form
of cash, personal check, certified check or previously acquired shares of Common
Stock of the Company, or any combination thereof. Any stock so tendered as part
of such payment shall be valued at its Fair Market Value as provided in the
Plan. For purposes of this Agreement, "previously acquired shares of Common
Stock" shall include shares of Common Stock that have been owned by Participant
for at least six (6) months prior to the time of exercise, or for such other
period of time as may be required by generally accepted accounting principles.
c. STOCK TRANSFER RECORDS. As soon as practicable after the
effective exercise of all or any part of the Option, Participant shall be
recorded on the stock transfer books of the Company as the owner of the shares
purchased, and the Company shall deliver to Participant one or more duly issued
stock certificates evidencing such ownership. All requisite original issue or
transfer documentary stamp taxes shall be paid by the Company.
4. MISCELLANEOUS.
a. EMPLOYMENT; RIGHTS AS SHAREHOLDER. This Agreement shall
not confer on Participant any right with respect to continuance of employment by
or other relationship with the Company or any of its Subsidiaries, nor will it
interfere in any way with the right of the Company to terminate such employment
or other relationship. Participant shall have no rights as a shareholder with
respect to shares subject to this Option until such shares have been issued to
Participant upon
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exercise of this Option. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property), distributions or
other rights for which the record date is prior to the date such shares are
issued, except as provided in Section 13 of the Plan.
b. SECURITIES LAW COMPLIANCE. The exercise of all or any
parts of this Option shall only be effective at such time as counsel to the
Company shall have determined that the issuance and delivery of Common Stock
pursuant to such exercise will not violate any state or federal securities or
other laws. Participant may be required by the Company, as a condition of the
effectiveness of any exercise of this Option, to agree in writing that all
Common Stock to be acquired pursuant to such exercise shall be held, until such
time that such Common Stock is registered and freely tradable under applicable
state and federal securities laws, for Participant's own account without a view
to any further distribution thereof, that the certificates for such shares shall
bear an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and
federal securities laws.
c. MERGERS, RECAPITALIZATIONS, STOCK SPLITS, ETC. Pursuant
and subject to Section 13 of the Plan, certain changes in the number or
character of the Common Stock of the Company (through sale, merger,
consolidation, exchange, reorganization, divestiture (including a spin-off),
liquidation, recapitalization, stock split, stock dividend or otherwise) shall
result in an adjustment, reduction or enlargement, as appropriate, in
Participant's rights with respect to any unexercised portion of the Option
(i.e., Participant shall have such "anti-dilution" rights under the Option with
respect to such events, but shall not have "preemptive" rights).
d. SHARES RESERVED. The Company shall at all times during
the option period reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of this Agreement.
e. WITHHOLDING TAXES. In order to permit the Company to
comply with all applicable federal or state income tax laws or regulations, the
Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal or state payroll, income or other taxes are
withheld from any amounts payable by the Company to Participant. If the Company
is unable to withhold such federal and state taxes, for whatever reason,
Participant hereby agrees to pay to the Company an amount equal to the amount
the Company would otherwise be required to withhold under federal or state law.
Participant may, subject to the approval and discretion of the Administrator or
such administrative rules it may deem advisable, elect to have all or a portion
of such tax withholding obligations satisfied by delivering shares of the
Company's Common Stock or by electing to have the Company withhold shares of
Common Stock otherwise issuable to Participant. Such shares shall have a Fair
Market Value equal to the minimum required tax withholding, based on the minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to the supplemental income resulting from the
exercise of this Option. In no event may the Company withhold shares having a
Fair Market Value in excess of such statutory minimum required tax withholding.
f. NONTRANSFERABILITY. During the lifetime of Participant,
the accrued Option shall be exercisable only by Participant or by the
Participant's guardian or other legal representative,
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and shall not be assignable or transferable by Participant, in whole or in part,
other than by will or by the laws of descent and distribution.
g. 2004 EQUITY INCENTIVE PLAN. The Option evidenced by this
Agreement is granted pursuant to the Plan, a copy of which Plan has been made
available to Participant and is hereby incorporated into this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. The Plan governs this Option and, in the event of any questions as
to the construction of this Agreement or in the event of a conflict between the
Plan and this Agreement, the Plan shall govern, except as the Plan otherwise
provides.
h. LOCKUP PERIOD LIMITATION. Participant agrees that in the
event the Company advises Participant that it plans an underwritten public
offering of its Common Stock in compliance with the Securities Act of 1933, as
amended, and that the underwriter(s) seek to impose restrictions under which
certain shareholders may not sell or contract to sell or grant any option to buy
or otherwise dispose of part or all of their stock purchase rights of the
underlying Common Stock, Participant hereby agrees that for a period not to
exceed 180 days from the prospectus, Participant will not sell or contract to
sell or grant an option to buy or otherwise dispose of this option or any of the
underlying shares of Common Stock without the prior written consent of the
underwriter(s) or its representative(s).
i. BLUE SKY LIMITATION. Notwithstanding anything in this
Agreement to the contrary, in the event the Company makes any public offering of
its securities and determines in its sole discretion that it is necessary to
reduce the number of issued but unexercised stock purchase rights so as to
comply with any state securities or Blue Sky law limitations with respect
thereto, the Board of Directors of the Company shall have the right (i) to
accelerate the exercisability of this Option and the date on which this Option
must be exercised, provided that the Company gives Participant 15 days' prior
written notice of such acceleration, and (ii) to cancel any portion of this
Option or any other option granted to Participant pursuant to the Plan which is
not exercised prior to or contemporaneously with such public offering. Notice
shall be deemed given when delivered personally or when deposited in the United
States mail, first class postage prepaid and addressed to Participant at the
address of Participant on file with the Company.
j. ACCOUNTING COMPLIANCE. Participant agrees that, if a
merger, reorganization, liquidation or other "transaction" as defined in Section
13 of the Plan occurs, and Participant is an "affiliate" of the Company or any
Subsidiary (as defined in applicable legal and accounting principles) at the
time of such transaction, Participant will comply with all requirements of Rule
145 of the Securities Act of 1933, as amended, and the requirements of such
other legal or accounting principles, and will execute any documents necessary
to ensure such compliance.
k. STOCK LEGEND. The Administrator may require that the
certificates for any shares of Common Stock purchased by Participant (or, in the
case of death, Participant's successors) shall bear an appropriate legend to
reflect the restrictions of Paragraph 4(b) and Paragraphs 4(h) through 4(j) of
this Agreement.
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l. SCOPE OF AGREEMENT. This Agreement shall bind and inure
to the benefit of the Company and its successors and assigns and Participant and
any successor or successors of Participant permitted by Paragraph 2 or Paragraph
4(f) above.
m. ARBITRATION. Any dispute arising out of or relating to
this Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of any
such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney
who has practiced securities or business litigation for at least 10 years. If
the parties cannot agree on an arbitrator within 20 days, any party may request
that the chief judge of the District Court for Hennepin County, Minnesota,
select an arbitrator. Arbitration will be conducted pursuant to the provisions
of this Agreement, and the commercial arbitration rules of the American
Arbitration Association, unless such rules are inconsistent with the provisions
of this Agreement. Limited civil discovery shall be permitted for the production
of documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs and
fees, including the arbitrator's fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys' fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
SCANNER TECHNOLOGIES CORPORATION
By:
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Its:
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Participant
6
