Incentive Stock Option Agreement - BeFirst.com
BEFIRST.COM
INCENTIVE STOCK OPTION
AGREEMENT
AGREEMENT made as of the ____ day of ____, 1999 (the "Grant Date") by and
between BEFIRST.COM, a New York corporation, having its office and principal
place of business located at 121 West 27th Street, Suite 903, New York, New York
10001 (the "Corporation") and __________ residing at ______________________ (the
"Holder").
W I T N E S S E T H:
WHEREAS, on Grant Date, the Corporation authorized the grant to the Holder
of an option to purchase an aggregate of ________ shares of the authorized but
unissued Common Stock of the Corporation, $.001 par value (the "Stock"),
pursuant to the Corporation's 1999 Stock Option Plan (the "Plan"), conditioned
upon the Holder's acceptance thereof upon the terms and conditions set forth in
this Agreement; and
WHEREAS, the Holder desires to acquire said option on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions of the Plan, a copy of which is
annexed hereto, made a part hereof and the receipt thereof acknowledged by the
Holder, the Corporation hereby grants to the Holder as a matter of separate
agreement and not in lieu of salary, or any other compensation for services, the
right and
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option (hereinafter called the "Option"), to purchase all or any part of an
aggregate of _________ shares of Stock on the terms and conditions herein set
forth.
2. This Option shall be deemed to be an incentive stock option.
3. The purchase price of each share of Stock subject to this Option shall
be $______.
4. This Option shall be exercisable in whole or in part at any time or from
time to time for a period terminating at the close of business five (5) years
from the Date of Grant.
5. The purchase price of the shares of Stock as to which the Option is
exercised shall be paid in full at the time of exercise by (a) cash or check or
(b) in shares of Common Stock of the Corporation already owned by the Holder as
provided in Paragraph 5(b)(iv) of the Plan. The Holder shall not have any of the
rights of a stockholder with respect to the Stock covered by the Option until
the date of the issuance of a stock certificate to him for such shares of Stock.
6. (a) The Option shall be exercisable during the five (5) year period
commencing from the Date of Grant and terminating on the close of business on
June 16, 2004 (the "Exercise Period").
(b) The Holder is an employee of the Corporation and must remain in the
continuous employ of the Corporation for one year from the Date of Grant in
order to exercise any part of the Option.
(c) Except as provided in Paragraph 6(e) below, this Option and the rights
and privileges conferred hereby may not be
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transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this Option or any right or privilege conferred hereby,
contrary to the provisions hereof, or upon the levy of any attachment or similar
process on the rights and privileges conferred hereby, this Option and the
rights and privileges conferred hereby shall immediately become null and void.
(d) In the event the Holder's employment by the Corporation or any of its
subsidiaries is terminated (for any reason other than death, disability or
discharge for cause, as defined in the Plan) any Option granted to him or
unexercised portion thereof which was otherwise exercisable on the date of
termination of employment shall terminate unless, such Option, to the extent
exercisable at termination, is exercised within the earlier of six (6) months
after the Holder ceases to be an employee or the date of expiration of the
Option. If the Holder's employment is terminated for cause, as defined in the
Plan, any Option or unexercised portion thereof granted to him shall terminate
and be of no further force and effect from the date of discharge.
(e) Upon the death of the Holder, any Option granted to him or the
unexercised portion thereof, which was otherwise exercisable on his date of
death, shall terminate unless such Option to the extent exercisable at death is
exercised by the executor or administrator of his estate, within the earlier of
one
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(1) year following the Holder's death or the date of the expiration of the
Option.
(f) In the event the Holder's employment by the Corporation or any of its
subsidiaries is terminated due to disability of the Holder (as defined in the
Plan), any Option granted to him or unexercised portion thereof which was
otherwise exercisable on the date of termination of employment shall terminate
unless, such option, to the extent exercisable at termination, is exercised
within the earlier of three (3) years after the Holder ceases to be an employee
on the date of expiration of the Option.
(g) The Corporation shall be obligated to sell and issue Stock pursuant to
this Option and the Plan and in accordance with the terms thereof but not before
the Stock with respect to which the Option is being exercised is effectively
registered or the sale thereof is exempt from registration under the Securities
Act of 1933, as amended (the "Act"), in the opinion of counsel for the
Corporation.
(h) The Board of Directors of the Corporation or the Corporation's Stock
Option Committee, as the case may be, may require, as a condition to the sale of
Stock on the exercise of any Option, that the person exercising such Option give
to the Corporation such documents including such appropriate investment
representations as may be required by counsel for the Corporation and such
additional agreements and documents as the Board of Directors or the Committee,
as the case may be, shall determine to be in the best interests of the
Corporation.
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7. (a) If the outstanding shares of Stock of the Corporation are increased,
decreased, changed into or exchanged for a different number or kind of stock or
securities of the Corporation or stock of a different par value or without par
value, through reorganization, recapitalization, reclassification, stock
dividend, stock split, amendment to the Corporation's Certificate of
Incorporation or reverse stock split, an appropriate and proportionate
adjustment shall be made in the maximum number and/or kind of securities
allocated to this Option, without change in the aggregate purchase price
applicable to the unexercised portion of the outstanding Options, but with a
corresponding adjustment in the price for each share of Stock or other unit of
any security covered by this Option.
(b) Upon the effective date of the dissolution or liquidation of the
Corporation, or of a reorganization, merger or consolidation of the Corporation
with one or more corporations in which the Corporation will not survive as an
independent, publicly owned corporation, or of a transfer of substantially all
the property or more than eighty percent (80%) of the then outstanding shares of
Stock of the Corporation to another corporation, any Option granted hereunder
shall terminate unless provision be made in writing in connection with such
transaction for the continuance of the Plan and for the assumption of the Option
granted, or the substitution for the Options of new options covering the shares
of a successor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to number and kind of stock and prices, in which event the Plan
and the Option theretofore granted or the
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new options substituted therefor, shall continue in the manner and under the
terms so provided. In the event of such dissolution, liquidation,
reorganization, merger, consolidation, transfer of assets or transfer of Stock,
and if provision is not made in such transaction for the continuance of the Plan
and for the assumption of this Option theretofore granted or the substitution
for each Option of new options covering the shares of a successor corporation or
a parent or subsidiary thereof, then the Holder shall be entitled, prior to the
effective date of any such transaction, to purchase the full number of shares of
Stock under the Option which he would otherwise have been entitled to purchase
during the remaining term of such Option. Upon the first purchase of shares of
Stock pursuant to a tender offer or exchange offer, other than by the
Corporation, for all or any part of the Stock, the Holder shall be entitled,
prior to the termination date of any such tender offer, to purchase the full
number of shares of Stock under this Option which he otherwise would have been
entitled to purchase during the remaining term of such Option.
(c) Adjustments under this paragraph shall be made by the Board of
Directors, whose determination as to what adjustments shall be made, and the
extent thereof, shall be final binding and conclusive. No fractional shares of
Stock shall be issued under the Plan or any such adjustment.
8. Anything in this Agreement to the contrary notwithstanding, the Holder
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Stock acquired by him upon exercise of the Option hereunder without
registration
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under the Act, or in the event that they are not so registered, unless (a) an
exemption from the Act is available thereunder and (b) the Holder has furnished
the Corporation with notice of such proposed transfer, and the Corporation's
legal counsel, in its reasonable opinion, shall deem such proposed transfer to
be so exempt, or the Holder has furnished the Corporation with notice of such
proposed transfer, together with an opinion of counsel reasonably satisfactory
to the Corporation's legal counsel, that in such counsel's opinion such proposed
transfer shall be so exempt.
9. (a) The Corporation may place stop transfer orders with its transfer
agent against the transfer of the shares of Stock issuable under the Option as
prohibited by Paragraph 8 hereof in the absence of registration under the Act or
an exemption therefrom provided herein.
(b) The certificates evidencing shares of Stock to be issued upon the
exercise of the Option may bear the following legends:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933, as
amended. The shares may not be sold or transferred
in the absence of such registration or an
exemption therefrom under said Act."
"The shares represented by this certificate have
been acquired pursuant to an option agreement
dated as of June 17, 1999, a copy of which is on
file with the Corporation, and may not be
transferred, pledged or disposed of except in
accordance with the terms and conditions thereof."
10. Subject to the terms and conditions of this Agreement, the Option may
be exercised with respect to all or any portion of
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the Stock subject hereto at any time and from time to time to the extent
determined under Section 6 hereof, by the delivery to the Corporation, at its
principal place of business of (a) the written Notice of Exercise in the form
attached hereto as Exhibit A, which is incorporated herein by reference,
specifying the number of shares of Stock with respect to which the Option is
being exercised and signed by the person exercising the Option as provided
herein, and (b) payment of the purchase price. Subject to the provisions of the
Plan, the Corporation shall issue and deliver a certificate or certificates
representing said Stock as soon as practicable after the notice and payment is
so received. The certificate or certificates for the Stock as to which the
Option shall have been so exercised shall be registered in the name of the
person or persons so exercising the Option, and shall be delivered as aforesaid
to or upon written order of the person or persons exercising the Option. In the
event the Option is being exercised pursuant to the Plan by any person or
persons other than the Holder, the notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise the Option.
11. In the event of a conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of the Plan shall in all respects
be controlling.
12. All offers, acceptances, notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid to the
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parties at their respective addresses set forth herein, or to such other address
as either shall have specified by notice in writing to the other. Same shall be
deemed given hereunder when so delivered or received, as the case may be.
13. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
14. This Agreement constitutes the entire Agreement between the parties
with respect to the subject matter hereof.
15. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors and assigns and representatives. Nothing in this Agreement, expressed
or implied, is intended to confer on any person other than the parties hereto
and as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
day and year first above written.
BEFIRST.COM
By:__________________________
Name:
Title:
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, Holder
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EXHIBIT A
NOTICE OF EXERCISE OF
BEFIRST.COM INCENTIVE STOCK OPTION
TO PURCHASE COMMON STOCK OF
BEFIRST.COM
Name __________________________
Address _______________________
_______________________________
Date __________________________
BeFirst.com
121 West 27th Street, Suite 903
New York, NY 10001
Attention: President
Re: Exercise of BeFirst.com
Stock Option
Gentlemen:
Subject to acceptance hereof in writing by BeFirst.com (the "Company")
pursuant to the provisions of the BeFirst.com 1999 Stock Option Plan, I hereby
elect to exercise options granted to me to purchase ________ shares of $.001 par
value Common Stock of the Company under the BeFirst.com Incentive Stock Option
Agreement dated as of _______________ (the "Agreement"), at $____ per share
(subject to adjustment as provided in the Agreement).
Enclosed is either (i) a certified check (or bank cashier's check) for
$_________ for the full purchase price payable to the order of Suprema
Specialties, Inc. or (ii) certificates representing _________ shares of Common
Stock of the Company.
As soon as the Stock Certificate is registered in my name, please deliver
it to me at the above address.
I hereby represent, warrant, covenant and agree with the Company as
follows:
The shares of the Common Stock being acquired by me will be acquired
for my own account without the participation of any other person, with the
intent of holding the Common Stock for investment and without the intent of
participating, directly or indirectly, in a distribution of the Common
Stock and not with a view to, or for resale in connection with, any
distribution of the Common Stock, nor am I aware of the existence of any
distribution of the Common Stock;
I am not acquiring the Common Stock based upon any representation,
oral or written, by any person with respect to
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the future value of, or income from, the Common Stock but rather upon an
independent examination and judgment as to the prospects of the Company;
The Common Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
I am able to bear the economic risks of the investment in the Common
Stock, including the risk of a complete loss of my investment therein;
I understand and agree that the Common Stock will be issued and sold
to me without registration under any state law relating to the registration
of securities for sale, and will be issued and sold in reliance on the
exemptions from registration under the Securities Act of 1933, as amended
(the "1933 Act"), provided by Sections 3(b) and/or 4(2) thereof and the
rules and regulations promulgated thereunder;
The Common Stock cannot be offered for sale, sold or transferred by me
other than pursuant to an effective registration under the 1933 Act or in a
transaction otherwise in compliance with the 1933 Act and evidence
satisfactory to the Company of compliance with the applicable securities
laws of other jurisdictions. The Company shall be entitled to rely upon an
opinion of counsel satisfactory to it with respect to compliance with the
above laws;
The Company will be under no obligation to register the Common Stock
or to comply with any exemption available for sale of the Common Stock
without registration, and the information or conditions necessary to permit
routine sales of securities of the Company under Rule 144 of the 1933 Act
may not be available with respect to any proposed sale of the Common Stock.
The Company is under no obligation to act in any manner so as to make Rule
144 available with respect to the Common Stock;
I have and have had complete access to and the opportunity to review
and make copies of all material documents related to the business of the
Company. I have examined such of these documents as I wished and am
familiar with the business and affairs of the Company. I realize that the
purchase of the Common Stock is a speculative investment and that any
possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive answers
from the Company and any person acting on its behalf and to obtain all
material information reasonably available with respect to the Company and
its affairs. I have received all information and data with respect to the
Company which I have requested and which I have deemed relevant in
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connection with the evaluation of the merits and risks of my investment in
the Company;
I have such knowledge and experience in financial and business matters
that I am capable of evaluating the merits and risks of the purchase of the
Shares hereunder and I am able to bear the economic risks of such purchase;
and
The agreements, representations, warranties and covenants made by me
herein extend to and apply to all of the Common Stock of the Company issued
to me pursuant to this Option. Acceptance by me of the certificate
representing such Common Stock shall constitute a confirmation by the
undersigned Optionee that all such agreements, representations, warranties
and covenants made herein shall be true and correct at such time.
I understand that the certificates representing such shares of Common
Stock being purchased by me in accordance with this notice shall bear a
legend referring to the foregoing covenants, representations and warranties
and restrictions on transfer, and I agree that a legend to that effect may
be placed on any certificate which may be issued to me as a substitute for
the certificates being acquired by me in accordance with this notice.
Very truly yours,
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AGREED TO AND ACCEPTED:
BEFIRST.COM
By: _______________________________
Title: ____________________________
Number of Shares
Exercised: ________________________
Number of Shares
Remaining: ________________________ Date: __________________
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