Exhibit 10.1
OPTION AGREEMENT
This Option Agreement (the "Agreement") is entered into as of October
3, 2006 (the "Grant Date") between Island Pacific, Inc., a Delaware corporation
(the "Company") and _______________ (the "Optionee") as follows:
1. RECITALS
1.1 The Company by this Agreement is granting to Optionee an option to
purchase shares of its Common Stock.
2. DEFINITIONS
In addition to those words and phrases defined above and unless
otherwise required by the context in which they appear, words and phrases having
their initial letters capitalized shall have the following meanings:
"Affiliate" means as to Optionee a person or entity controlled by,
controlling or under common control with Optionee.
"Agreement" means this Option Agreement (including any schedules,
attachments, documents incorporated by reference or modifications agreed to in
writing by the Company and Optionee) which sets forth the parties' rights and
obligations with respect to the Option.
"Common Stock" means the common stock of the Company.
"Expiration Date" means three (3) years from the date of this option.
"Option" means the right of Optionee to purchase ___________
(_________) shares of Common Stock in accordance with the terms and conditions
of this Agreement.
"Option Price" means $______ per share of Common Stock to be paid by
the Optionee upon exercise of the Option.
"Option Stock" means the shares of Common Stock Optionee shall be
entitled to purchase pursuant to this Agreement.
"Term" means the period commencing on the Grant Date and continuing
until the Expiration Date.
3. OPTION
3.1 GRANT. Company hereby grants to Optionee the Option to purchase all
or any part of the Option Stock on the terms and conditions set forth in this
Agreement.
3.2 PURCHASE PRICE. The purchase price per share of Option Stock to be
paid upon the exercise of this Option shall be the Option Price.
3.3 RESTRICTIONS ON TRANSFER. This Option shall not be transferable by
Optionee other than Optionee's heirs or legatees, to a revocable trust
established by Optionee for estate planning purposes, or an Affiliate of
Optionee. Any permitted transferee shall also be referred to as Optionee. Upon
any attempt to sell, assign, encumber or otherwise transfer this Option in
violation of this Agreement, or upon the levy of any attachment or similar
process upon this Option, this Option shall immediately become null and void.
3.4 CHANGES IN EQUITY STRUCTURE; RECAPITALIZATION. If any change is
made in the Common Stock (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or otherwise), the Option will be appropriately adjusted
in the number of shares and price per share of Common Stock.
4. EXERCISE
4.1 EXERCISE OF OPTION. Optionee shall be entitled to exercise all or
any part of the Option at any time during the Term.
4.2 EXPIRATION OF EXERCISE RIGHTS. In no event shall this Option be
exercisable after the Expiration Date.
4.3 METHOD OF EXERCISE. Subject to the terms and conditions of this
Option, Optionee may exercise the purchase rights represented by this Option in
whole or in part, at any time or from time to time, on or after the date hereof
and before the Expiration Date, by surrendering this Option at the principal
offices of the Company, with the subscription form attached hereto duly executed
by the Optionee, and arranging for payment of the Option Price (i) by making
payment to the Company of an amount equal to the product obtained by multiplying
(x) the number of shares of Option Stock so purchased by (y) the Option Price,
as specified in Section 2, (ii) by delivery of shares of Common Stock already
owned by Optionee, which shares are free of all liens, claims and encumbrances
of every kind and have an aggregate fair market value (determined as of the date
of exercise) equal to the total Option Price for the number of shares of Option
Stock purchased, or (iii) through a broker-assisted cashless exercise
arrangement that complies with applicable law and is satisfactory to the
Company's Board of Directors.
4.4 FORM OF PAYMENT. Should Optionee choose to exercise this Option
pursuant to clause (i) of Section 4.3 above, then payment of the Option Price
may be made by (i) a check payable to the Company's order, (ii) wire transfer of
funds to the Company, (iii) cancellation of indebtedness of the Company to the
Optionee, or (iv) any combination of the foregoing.
4.5 PARTIAL EXERCISE. Upon a partial exercise of this Option, this
Option shall be surrendered by the Optionee and replaced with a new Option or
Options of like tenor for the balance of the shares of Option Stock purchasable
under the Option. The Option or Options will be delivered to the Optionee
thereof within a reasonable time.
4.6 NO FRACTIONAL SHARES. No fractional shares may be issued upon any
exercise of this Option. If upon any exercise of this Option a fraction of a
share results, such fraction shall be rounded upwards or downwards to the
nearest whole number.
4.7 ISSUANCE OF STOCK. This Option shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Option Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As soon as practicable, the Company shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates for
the number of whole shares of Option Stock issuable upon such exercise.
5. INVESTMENT INTENT
This Option is granted on the condition that Optionee's purchase of
Option Stock shall be for investment purposes and not with a view to resale or
distribution.
6. NOTICES
6.1 IN WRITING. All notices, demands, requests, or other communications
permitted or required under this Agreement or applicable law shall be in
writing.
6.2 DELIVERY. All such communications may be served personally or may
be sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to either Optionee or the Company at the addresses
appearing beneath the respective party's signature to this Agreement, or at such
other address as either party shall have communicated to the other pursuant to
this Section. All such communications shall be deemed effectively delivered upon
personal service or three (3) days after deposit in the United States Mail.
7. MISCELLANEOUS
7.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall inure to the benefit of only the Company, Optionee and their
respective successors or assigns.
7.2 SEVERABILITY. If any provision or provisions of this Agreement are
adjudged to be for any reason unenforceable, illegal or void, the remainder of
its provisions shall remain in full force and effect.
7.3 INTEGRATION. This Agreement constitutes the entire understanding of
the parties concerning the Option granted hereby. Except as otherwise provided,
any changes, modifications, or variations to this Agreement or the Option are
invalid unless stated in writing and executed by the Company and Optionee.
7.4 GOVERNING LAW. This Agreement and the Option granted hereby shall
be governed by the laws of the State of California. Any action to enforce or
interpret this Agreement shall be brought in the federal or state courts
situated in San Diego County, State of California.
7.5 ATTORNEYS FEES. If either party brings an action or seeks to
enforce or interpret any of the terms or provisions of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs in addition to any other remedy it may be awarded.
7.6 COUNTERPARTS. This Agreement may be executed in counterparts which
shall constitute the whole instrument.
7.7 TITLES FOR CONVENIENCE; GENDER AND PLURALS. Titles of articles and
paragraph headings are for convenience only and shall not affect the
construction or interpretation of this Agreement, or any portion thereof.
Whenever required by the context hereof, the singular shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter, and
vice versa.
Executed to be effective as of the Grant Date.
Number of Shares of Company Stock OPTIONEE:
for which the Company Options are
exercisable: _____________
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[Insert Name]
COMPANY:
ISLAND PACIFIC, INC.
a Delaware corporation
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By:________________________________
Its:_______________________________
NOTICE OF EXERCISE
This constitutes notice under the appended Option Agreement that I elect to
purchase the number of shares for the price set forth below.
Number of shares as
to which option is
exercised: ___________________
Certificates to be
issued in name of: ___________________
Total exercise price paid (or number of shares owned by the
undersigned and delivered to the Company pursuant to Section
4.3 of the
Option Agreement). $___________________
I hereby make the following certifications and representations with
respect to the number of shares of Common Stock of the Company listed above (the
"Shares"), which are being acquired by me for my own account upon exercise of
the Option as set forth above:
I warrant and represent that I have no present intention of
distributing or selling the Shares, except as permitted under the Securities Act
of 1933 and any applicable state securities laws.
I further acknowledge that all certificates representing any of the
Shares subject to the provisions of the Option shall have endorsed thereon
appropriate legends reflecting the foregoing limitations, as well as any legends
reflecting restrictions pursuant to the Company's Certificate of Incorporation,
Bylaws and/or applicable securities laws.
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(Name)
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(Date)
