Incentive Stock Option Agreement - SunnComm Inc. and Peter H. Jacobs
SUNNCOMM, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement") made this 28th day
of November, 2000 between SUNNCOMM, INC., a Nevada corporation, having a
principal place of business at 668 N. 44th Street, Suite 220, Phoenix, AZ 85008
(the "Corporation"), and Peter H. Jacobs (the "Participant").
R E C I T A L S:
A. The Corporation desires to grant to the Participant an Option to
purchase shares of its common capital stock (the "Shares") under and for the
purposes of the Corporation's Share Option Plan (the "Plan"); and
B. The Corporation and the Participant understand and agree that any
terms used herein have the same meanings as in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree
as follows:
1. GRANT OF OPTION
The Corporation hereby grants to the Participant the right and Option to
purchase all or any part of an aggregate of 2,000,000 Shares on the terms and
conditions and subject to and with the benefit of all the limitations set forth
herein and in the Plan, which is incorporated herein by reference.
2. PURCHASE PRICE
The purchase price per share of the Shares shall be $0.20.
3. EXERCISE OF OPTION
After 34 days following the dated hereof, the Option granted hereby shall
be exercisable at any time during the term of the Option. Notwithstanding the
above, in the event of the sale of all or substantially all of the assets or
common stock of the Corporation or the merger or consolidation of the
Corporation into or with another entity, then any of the Options shall be
exercisable on the date immediately preceding the consummation of such
transaction.
4. TERM OF OPTION
(a) Termination of Employment. The Option shall terminate ten (10) years
from the date of this Agreement, but shall be subject to earlier termination as
provided herein or in the Plan.
(b) Death. In the event such Participant's death, his Option shall
terminate on the date of death, provided that all or a portion of the Option to
the extent that the right is exercisable by not exercised on the date of death
may be exercised by Participant's Survivors. Such Option must be exercised by
the Survivors, if at all, within six (6) months after the date of death of
Participant or, if earlier, within the originally prescribed term of the
Option, notwithstanding that the decedent might have been able to exercise the
Option as to some or all of the shares on a later date if the Participant were
alive and had continued to be a Participant of the Corporation or of an
Affiliate.
5. EXERCISE OF OPTION AND ISSUE OF STOCK
The Option may be exercised in whole or in part by giving written notice
to the Corporation. Such written notice shall be signed by the person
exercising the Option, shall state the number of Shares with respect to which
the Option is being exercised and shall specify a date (other than a Saturday,
Sunday or legal holiday) not less than five (5) nor more than ten (10) days
after the date of such written notice, as the date on which the Shares will be
taken up and payment made therefore, at the principal office of the Corporation
during ordinary business hours, or at such other hour and place agreed upon by
the Corporation and the person or persons exercising the Option and shall
otherwise comply with the terms and conditions of this Agreement and the Plan.
On the date specified in such written notice (which date may be extended by the
Corporation if any law or regulation requires the Corporation to take any
action with respect to the Option Shares prior to the issuance thereof), the
Corporation shall accept payment for the Option Shares and shall deliver an
appropriate certificate or certificates for the Shares as to which the Option
was exercised to the Participant.
The Option price of any shares shall be payable at the time of exercise
either:
(i) in cash or by check or certified or bank check;
(ii) in whole Shares of the Corporation's common stock, owned by the
person exercising the option for six months or more, with a fair market value
equal to the option price as agreed by the parties; provided, however, that if
such shares were acquired pursuant to an incentive stock option plan, as
defined in Code Section 422 or prior Code Section 422A of the Corporation or an
Affiliate, including this Plan or a qualified stock option plan as defined in
Code Section 422, that the applicable holding period requirements of said prior
Sections 422 and 422A have been met with respect to such Shares; or
(iii) any combination of (i) and (ii) above.
The Corporation shall pay all original issue taxes with respect to the
issue of Shares pursuant hereto and all other fees and expenses necessarily
incurred by the Corporation in connection therewith. The holder of this Option
shall have the rights of a shareholder only with respect to those Shares
covered by the Option that have been registered in the holder's name in the
share register of the Corporation upon the die exercise of the Option.
It is understood that any such shares acquired under this option agreement
will not be sold prior to January 1, 2001.
6. NON-ASSIGNABILITY
This Option shall not be transferable by the Participant and shall be
exercisable only by the Participant.
7. NOTICES
All notices, demands, instructions and other communications required or
permitted to be given to or made upon either Party hereto or any other person
shall be in writing and shall be personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, or by a reputable
courier delivery service, or by telegram (with messenger delivery), or by
telecopy (confirmed by mail), and shall be deemed to be given for purposes of
this Agreement on the day that such writing is delivered or sent to the
intended recipient thereof in accordance with the provisions of this Section.
Unless otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section, notices, demands, instructions and other
communications in writing shall be given to or made upon the respective Parties
hereto at the following address:
To the Corporation: SunnComm, Inc.
668 N. 44th Street
Suite 220
Phoenix, Arizona 85008
With a Copy to: William O'Neal
Gammage & Burnham
Two North Central Ave
Eighteenth Floor
Phoenix, AZ 85004
To the Participant: Peter H. Jacobs
4850 Gastman Way
Fair Oaks, CA 95628
8. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the
internal laws (and not the laws of conflict) of the State of Arizona.
9. BINDING AGREEMENT
This Agreement shall (subject to the provisions of Section 6 hereof) be
binding upon the heirs, executors, administrators, successors and assigns of
the parties hereto.
IN WITNESS WHEREOF, the Corporation has caused these presents to be
executed on its behalf and the Participant has hereunto set his hand, all on
the day and year first above written.
SUNNCOMM, INC.
By: ________________________________
Stephen F. Burg Secretary Date
PARTICIPANT:
By: ________________________________
Peter H. Jacobs Date
Social Security #___________________