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Exhibit: 10.9FD
FUNDEX GAMES, LTD.
INCENTIVE STOCK OPTION AGREEMENT
Fundex Games, Ltd., a Nevada corporation (the "Company"), hereby grants
to _______________________________ (the "Optionee") an option to purchase a
total of ________ shares of Common Stock (the "Shares") of the Company, at the
price set forth herein, and in all respects subject to the terms and provisions
of the Company's 1996 Stock Option Plan (the "Plan") applicable to incentive
stock options which terms and provisions are hereby incorporated by reference
herein. Unless otherwise defined or the context herein otherwise requires, the
capitalized terms used herein shall have the same meanings ascribed to them in
the Plan.
1. NATURE OF THE OPTION. This Option is intended to be an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
2. DATE OF GRANT; TERM OF OPTION. This Option is granted as of
____________________, and it may not be exercised later than __________________.
3. OPTION EXERCISE PRICE. The Option exercise price is $___________ per
Share, which price is not less than the fair market value thereof on the date
this Option was granted.
4. EXERCISE OF OPTION. This Option shall be exercisable during its term
only in accordance with the terms and provisions of the Plan and this Option as
follows:
(a) RIGHT TO EXERCISE. This Option shall vest and be
exercisable, cumulatively (Specify vesting schedule, e.g., in five annual
installments commencing on the first anniversary of the date of grant and
continuing to vest as to one additional installment on every annual anniversary
thereafter as long as the Optionee remains an Employee.)
(b) METHOD OF EXERCISE. This Option shall be exercisable by
written notice which shall state the election to exercise this Option, the
number of Shares in respect to which this Option is being exercised, such other
representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company hereunder or pursuant
to the provisions of the Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Secretary
of the Company or such other person as may be designated by the Company. The
written notice shall be accompanied by payment of the exercise price and by an
executed Stock Purchase Agreement if required by the Company. Payment of the
exercise price shall be by cash or by check or by such other method of payment
as is authorized by the Board in accordance with the Plan. The certificate or
certificates for the Shares as to which the Option shall be exercised shall be
registered in the name of the Optionee and shall be legended as set forth in the
Plan, the Stock Purchase Agreement and/or as required under applicable law. This
Option may not be exercised for a fraction of a share.
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(c) RESTRICTIONS ON EXERCISE. This Option may not be exercised
if the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of this Option, the Company may require the Optionee
to make such representations and warranties to the Company as may be required by
any applicable law or regulation.
(d) NO SHAREHOLDER RIGHTS BEFORE EXERCISE AND ISSUANCE. No
rights as a shareholder shall exist with respect to the Shares subject to the
Option as a result of the grant of the Option. Such rights shall exist only
after issuance of a stock certificate in accordance with Section 8 (d) (i) of
the Plan following the exercise of the Option as provided in this Agreement and
the Plan.
5. INVESTMENT REPRESENTATIONS. In connection with the acquisition of
this Option, the Optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise
of this Option, he will be acquiring the Shares for investment for his own
account, not is a nominee or agent, and not with a view to, or for resale in
connection with, any distribution thereof.
(b) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or controlling
persons and by reason of his business or financial experience, has, and could be
reasonably assumed to have, the capacity to evaluate the merits and risks of
purchasing Common Stock of the Company and to make an informed investment
decision with respect thereto and to protect Optionee's interests in connection
with the acquisition of this Option and the Shares.
6. TERMINATION OF STATUS AS AN EMPLOYEE.
(a) If the Optionee's Continuous Employment terminates for any
reason other than death or Disability, the Optionee shall have the right to
exercise the Option at any time within 30 days after the date of such
termination to the extent that the Optionee was entitled to exercise the Option
at the date of such termination (subject to any earlier termination of the
Option as provided by its terms).
(b) If the Optionee's Continuous Employment terminates due to
the death or Disability of the Optionee, the Option may be exercised at any time
within 180 days after the date of such termination, in the case of death, by the
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, or, in the case of Disability, by the Optionee
(subject to any earlier termination of the Option as provided by its terms).
(c) Notwithstanding the foregoing regarding the exercise of
the Option after the termination of Continuous Employment, the Option shall not
be exercisable after the expiration of its term, as set forth in Section 2
herein, the Option may be exercised only to the extent the Optionee was entitled
to exercise it on the date Optionee's Continuous Employment with the Company
terminated. To the extent that the Optionee was not entitled to exercise the
Option at the date of termination, or to the extent the Option is not exercised
within the time specified herein, the Option shall terminate.
7. WITHHOLDING. The Company reserves the right to withhold, in
accordance with any applicable laws, from any compensation or other
consideration payable to the
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Optionee, any taxes required to be withheld by federal, state or local law as a
result of the grant or exercise of this Option or the sale or other disposition
of the Shares issued upon exercise of this Option; and, if such compensation or
consideration is insufficient, the Company may require Optionee to pay to the
Company an amount sufficient to cover such withholding tax liability.
8. NONTRANSFERABILITY OF OPTION. This Option may not be sold, pledged,
assigned, hypothecated, gifted, transferred or disposed of in any manner, either
voluntarily or involuntarily by operation of law or otherwise, other than by
will or by the laws of descent or distribution or a transfer between spouses
incident to a "divorce" within the meaning of Section 1041 (a) of the Code, and
may be exercised during the lifetime of the Optionee only by such Optionee or
his or her legal guardian. Subject to the foregoing and the terms of the Plan,
the terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
9. CONTINUATION OF EMPLOYMENT. Neither the Plan, this Option, nor any
Option granted thereunder shall (a) confer upon the Optionee any right
whatsoever to continue in the employment of the Company or any of its
subsidiaries or (b) limit or restrict in any respect the rights of the Company,
which rights are hereby expressly reserved, to terminate the Optionee's
employment and compensation at any time for any reason whatsoever, with or
without cause, in the Company's sole discretion and with or without notice.
10. THE PLAN. This Option is subject to, and the Company and the
Optionee agree to be bound by, all the terms and conditions of the Company's
Plan as such Plan may be amended from time to time in accordance with the terms
thereof, provided that no such amendment shall deprive the Optionee, without his
consent, of this Option or any rights hereunder. Pursuant to the Plan, the Board
is authorized to adopt rules and regulations not inconsistent with the Plan as
it shall deem appropriate and proper. A copy of the Plan in its present form is
available for inspection at the Company's principal office during business hours
by the Optionee or the persons entitled to exercise this Option.
11. ENTIRE AGREEMENT. The terms of this Agreement and the Plan
constitute the entire agreement between the Company and the Optionee with
respect to the subject matter hereof and supersede any and all previous
agreements between the Company and the Optionee.
FUNDEX GAMES, LTD., Inc.,
a Nevada corporation
Date: By:
Title:
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The Optionee hereby acknowledges receipt of a copy of the Plan, a copy of which
is attached hereto, and represents that he has read and is familiar with the
terms and provisions thereof and of this Agreement, and hereby accepts this
Option subject to all of the terms and provisions thereof and of this Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Board upon any questions arising under the Plan.
Date: Signature of Optionee
Address
City State Zip Code
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON EXECUTION OF
THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE, TRANSFER OR
DISTRIBUTION THEREOF. NO SUCH SALE, TRANSFER OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES WHICH MAY BE PURCHASED UPON EXERCISE OF THIS OPTION ARE
SUBJECT TO A RIGHT OF FIRST REFUSAL AND MAY BE TRANSFERRED ONLY IN ACCORDANCE
WITH THE TERMS OF A STOCK PURCHASE AGREEMENT TO BE ENTERED INTO BETWEEN THE
HOLDER OF THIS OPTION AND THE COMPANY UPON EXERCISE OF THIS OPTION, A COPY OF
WHICH AGREEMENT IS ON FILE WITH THE SECRETARY OF THE COMPANY.
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