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EXHIBIT 4.9
FORM OF STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made as of the 21st day of
July, 1999 between LEXON Technologies, Inc., a Delaware corporation ("Company),
and _______________________, ("Optionee").
In consideration of $1.00 in hand paid to Company, it is agreed:
1. OPTION. Company hereby grants Optionee an option to purchase ________
shares of the $.001 par value common stock of Company ("Shares"), on the terms
hereinafter set forth.
2. PURCHASE PRICE. The purchase price payable for the Shares upon
exercise of such option shall be $2.80, representing 100% of the fair market
value per Share as of July 21, 1999.
3. METHOD OF EXERCISING OPTION. The option may be exercised at any time
during the period beginning on July 21, 1999 and continuing to the tenth
anniversary of this Agreement ("Option Period"). The option may be exercised in
whole or in part by giving to the Company notice in writing to that effect
Within thirty (30) days after the receipt by it of notice of exercise of such
option, the Company shall cause certificates for the number of Shares with
respect to which such option is exercised to be issued in the name of Optionee
or his executors, administrators, or other legal representatives, heirs,
legatees, next of kin, or distributees, or to be properly endorsed or
accompanied by separate stock powers duly executed, and to be delivered to
Optionee or his executors, administrators, or other legal representatives,
heirs, legatees, next of kin, or distributees, or to be properly endorsed or
accompanied by separate stock powers duly executed, and to be delivered to
Optionee or his executors, administrators, or other legal representatives,
heirs, legatees, next of kin, or distributees. Payment of the purchase price for
the Shares with respect to which such option is exercised shall be made to the
Company upon the delivery of such Shares. The Company shall give the person or
persons entitled to the same at least five (5) days notice of the time and place
for delivery and for the payment of suet purchase price.
4. CONDITIONS OF OPTION. The option is subject to the following additional
conditions:
a. The option herein granted to Optionee shall not be transferable by
Optionee other than by will or the laws of descent and
distribution, and shall be exercisable, during his lifetime, only
by him.
b. In the event of Optionee's death, the option may be exercised by
his executors, administrators, or other legal representatives,
heirs, legatees, next of kin, or distributees during the Option
Period.
c. The provisions of the option shall become null and void and
inoperative immediately upon any attempted sale, assignment,
transfer, or other disposition by Optionee of such option or any of
his right, title, and interest therein; provided, however, that
nothing herein shall be construed as prohibiting Optionee upon his
death (at any time while he has the right to exercise such option)
from providing for the disposition of such option or his right,
title, and interest in it by will or as prohibiting the transfer of
such option or his right, title, and interest in it by will or as
prohibiting the transfer of such option by the laws of descent and
distribution.
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d. Each Share issued to the Optionee upon any exercise of the option
granted hereunder shall be subject to repurchase by the Company at
a price equal to the price paid for each such Share, upon the
termination of Optionee's service with the Company for any reason
or upon the death of Optionee, if such termination of service or
death occurs on or before December 31, 2001, provided that the
Company's right to repurchase shall terminate as to the following
number of such Shares on each of the following dates: as to 75,300
Shares as of December 31, 1999; as to 131,773 Shares, as of
December 31, 2000; and as to 169,423 Shares as of December 31,
2001.
e. Notwithstanding anything in this Agreement to the contrary, the
option herein granted to Optionee shall in the event be exercisable
after ten (10) years.
5. RESTRICTION ON THE TRANSFER OF SHARES. Optionee hereby agrees,
without the consent of the Company, he will not, directly or indirectly, sell,
assign, transfer, pledge or otherwise dispose of (collectively "Transfer more
than 25% of the Shares within any ninety (90) day period. Notwithstanding the
foregoing, Optionee may Transfer the Shares to (i) the spouse or children of
such Optionee, whether directly or in trust (including pursuant to the uniform
gift to minors provisions) for their sole benefit, provided that the transferee
agrees in writing to be bound by the terms of this Agreement, and provided
further that Optionee may not disclaim beneficial ownership of such Shares for
the purposes of any filing pursuant to any securities law, or (ii) a trust in
which Optionee owns all of the beneficial interest therein, provided further
that Optionee may not disclaim beneficial ownership of such Shares for the
purposes of any filing pursuant to any securities law and (iii) a third party
making a cash tender or exchange offer in compliance with Regulations 14D and
14E under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
following the filing with the Securities and Exchange Commission ('SEC') by the
Company, in compliance with the Exchange Act, a Recommendation Statement on
Schedule 14D-9 pursuant to which the Company affirmatively recommends to the
Company stockholders the acceptance of such cash tender or exchange offer.
6. STOCK ADJUSTMENT. If the Company shall issue any additional shares
of stock by way of a stock dividend on, or split-up, subdivision, or
reclassification of outstanding common shares, then the option shall be deemed
to cover such additional shares to the extent that the same would have been
issued to Optionee had such option been exercised in its entirety at the time of
such issuance of additional shares, and there shall be a corresponding
proportionate adjustment of the option price per share set forth above so that
in the aggregate the option price for all Shares then covered shall be the same
as the aggregate option price for the Shares remaining subject to such option
immediately prior to the issuance of such additional shares.
7. CORPORATE REORGANIZATION. If there shall be any capital
reorganization, or consolidation, or merger of the Company with any other
corporation or corporations, or any sale of all or substantially all of the
Company's property and assets to any other corporation or corporations, the
Company shall take appropriate action to enable Optionee to receive upon any
subsequent exercise of such option, in whole or in part, in lieu of any Shares
of the Company the share or shares, securities, or other assets as were issuable
or payable upon such reorganization, consolidation, merger, or sale in respect
of or in exchange for such Shares.
8. OPTIONEE'S REPRESENTATIONS. Optionee represents and/or acknowledges
the following:
a. That the Shares are being purchased for investment and not for
distribution or resale to others. Optionee agrees that he will not
sell or otherwise transfer the Shares unless they are registered
under the Securities Act of 1933 or unless an exemption from such
registration is available.
b. The Shares have not been registered under the Securities Act of 1933
or the Illinois Securities Act of 1953 as amended, or any other
applicable state securities laws; the economic risk of the
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investment must be borne indefinitely by Optionee, and the Shares
cannot be sold unless subsequently registered under the Securities
Act of 1933 and such state laws or an exemption from such
registration is available. The Company has agreed to register the
shares of Common Stock issuable on exercise of this Option at such
time as the Company is eligible to utilize the form of registration
on S-3 or S-8 under the Securities Act.
c. Optionee is and will be a resident of the State set forth below his
signature as of the date of his execution of this Agreement, and
that the personal information provided on the Signature page is true
and accurate as of the date hereof.
d. Optionee confirms that he is aware of the present operational and
financial condition of the Company, and has previously been advised
that all documents, records and books pertaining to Company finances
and operations were at all times available for inspection at the
offices of Company, and that all documents, records and books
pertaining to Company and Shares requested by Optionee have been
made available to him.
e. Optionee has had an opportunity to ask questions of, and receive
answers from Company, its officers, directors, employees and agents
concerning the terms and conditions of this Agreement, the
transactions contemplated thereby, the operations of Company and
related matters.
f. Optionee, understands that no assurance is given that the actual
result of operations will correspond with the past results as set
forth in any tax or financial statements or other documents provided
to Optionee and no reliance should be placed upon results of such
past operations in determining whether an investment in Shares is
advisable.
9. COMPANY'S REPRESENTATIONS. The Company represents the following:
a. It has the Tight to issue the Shares to Optionee.
b. Optionee shall receive good and marketable title to the Shares,
free of all encumbrances.
10. BINDING EFFECT. This Agreement shall be binding upon the parties,
their heirs, legal representatives, successors, and assigns.
11. ENTIRE AGREEMENT. This Agreement supersedes all agreements
previously made between the parties relating to its subject matter. There are no
other understandings or agreements between them.
12. NON-WAIVER. No delay or failure by either party to exercise any
right under this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Illinois as to all matters including, but not limited to, matters of
validity, construction, effect, performance and remedies, and as partial
consideration for the other party's execution and performance hereunder, each
party hereby consents to the jurisdiction of any state or federal court located
within Cook County, Illinois and waives personal service of any and all process
upon it, to the extent permitted by law, and consents that all such service of
process be made upon such party at the address and in the manner set forth in
this Agreement, and service so made shall be deemed to be completed upon the
earlier of actual receipt or three (3) days after the same shall have been
posted to such party's address. Each party hereby waives trial by jury, and
waives any objection which it may have based on improper venue or forum non
conveniens, to the conduct of any proceeding instituted hereunder, and consents
to the granting of such legal or equitable relief as is deemed appropriate by
the court.
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IN WITNESS WHEREOF, the parties have signed this Agreement.
LEXON Technologies, Inc.
By:
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John B. McLean,
Assistant Secretary
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Optionee
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SCHEDULE TO EXHIBIT 4.9 - FORM OF STOCK OPTION AGREEMENT
On July 21, 1999, the Company entered into Stock Option Agreements with
certain employees of the Company. The Stock Option Agreements, which are
substantially similar, provide for immediate exercisability of the options
subject to certain forfeiture restrictions relating to the shares, which
forfeiture restrictions expire on the terms set forth below.
Number of Shares
Issuable Upon Exercise Shares Subject to Forfeiture/
Optionee of the Option Date Forfeiture Expires
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Steven J. Peskaitis 376,496 75,300/ December 31, 1999
131,773/ December 31, 2000
169,423/ December 31, 2001
Kenneth Eaken 627,500 125,500/ December 31, 1999
219,625/ December 31, 2000
282,375/ December 31, 2001
Paris Karahalios 627,500 125,500/ December 31, 1999
219,625/ December 31, 2000
282,375/ December 31, 2001
John McLean 627,500 125,500/ December 31, 1999
219,625/ December 31, 2000
282,375/ December 31, 2001
Stanley Peskaitis 275,000 100,000/ December 31, 1999
100,000/ December 31, 2000
75,000/ December 31, 2001
Dave Schulz 285,000 95,000/ December 31, 1999
95,000/ December 31, 2000
95,000/ December 31, 2001
Dave Leonard 12,500 12,500/ December 31, 1999
Jim Rooney 12,550 12,550/ December 31, 1999
Thomas Riek 12,550 12,550/ December 31, 1999