EXHIBIT 10.1
ENHERENT CORP.
2005 STOCK INCENTIVE PLAN
1. PURPOSE.
The purpose of the enherent Corp. 2005 Stock Incentive Plan (the "Plan") is to
align the interests of directors, officers, other employees and consultants of
enherent Corp., a Delaware corporation, (the "Company") and its subsidiaries
with those of the stockholders of the Company; to attract, motivate and retain
the best available executive personnel and key employees of the Company and its
subsidiaries by permitting them to acquire or increase their proprietary
interest in the Company; and to reward the performance of individual officers
and other employees in fulfilling their personal responsibilities for long-range
achievements.
2. DEFINITIONS.
The following terms, as used herein, shall have the following meanings:
(a) "Award" shall mean an Option or Restricted Stock granted pursuant to the
Plan.
(b) "Award Agreement" shall mean any written agreement, contract or other
instrument or document between the Company and a Participant evidencing an
Award.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Cause" shall mean (i) the engaging by the Participant in willful misconduct
that is materially injurious to the Company, (ii) the embezzlement or
misappropriation of funds or property of the Company by the Participant or the
conviction of the Participant of a felony or the entrance of a plea of guilty or
nolo contendere by the Participant to a felony, or (iii) the willful failure or
refusal by the Participant to substantially perform his duties or
responsibilities that continues after being brought to the attention of the
Participant (other than any such failure resulting from the Participant's
incapacity due to disability). For purposes of this paragraph, no act, or
failure to act, on the Participant's part shall be considered willful unless
done, or omitted to be done, by him not in good faith and without reasonable
belief that his action or omission was in the best interest of the Company.
Determination of Cause shall be made by the Committee in its sole discretion.
Any such determination shall be final and binding on a Participant.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
(f) "Committee" shall mean the committee of the Board appointed to administer
the Plan which shall be comprised of at least three members who shall qualify as
"non-employee directors" within the meaning of Rule 16b-3 issued under the
Exchange Act and, to the extent determined advisable by the Board, as "outside
directors" within the meaning of Section 162(m) of the Code.
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(g) "Common Stock" shall mean the common stock, par value $0.001 per share, of
the Company.
(h) "Company" shall have the meaning set forth in Section 0 hereof.
(i) "Effective Date" shall have the meaning set forth in Section 0 hereof.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
(k) "Fair Market Value" of a share of Common Stock on any date shall be (A) if
the Common Stock is admitted to trading on a national securities exchange, Fair
Market Value on any date shall be the last sale price reported for the Common
Stock on such exchange on such date or, if none, the next earlier date on which
a sale was reported, (B) if the Common Stock is admitted to quotation on the
Nasdaq National Market or other comparable quotation system, Fair Market Value
on any date shall be the last sale price reported for the Common Stock on such
system on such date or, if none, the next earlier date on which a sale was
reported, or (C) if the Common Stock is admitted to quotation on the Nasdaq
Stock Market, Fair Market Value on any date shall be the average of the highest
bid and lowest asked prices of the Common Stock on such system on such date or,
if none, the next earlier date on which a sale was reported. If none of the
foregoing apply, the Fair Market Value of a share of Common Stock shall be
determined by the Committee in its sole discretion pursuant to such policies as
to valuation as may be adopted be the Board.
(l) "Incentive Stock Option" shall mean an Option that meets the requirements of
Section 422 of the Code, or any successor provision, and is designated by the
Committee as an Incentive Stock Option.
(m) "Non-Employee Director" shall mean a member of the Board who is not also an
employee of the Company or a subsidiary.
(n) "Nonqualified Stock Option" shall mean an Option other than an Incentive
Stock Option.
(o) "Option" shall mean the right, granted pursuant to the Plan, to purchase
shares of Common Stock.
(p) "Partial Disability" shall mean that the Committee has determined, in its
sole discretion, that a Participant is partially disabled.
(q) "Participant" shall mean an officer, other employee or consultant of the
Company who is selected by the Committee to participate in the Plan and a
Non-Employee Directors eligible to participate in the Plan pursuant to Section 0
hereof.
(r) "Permanent Disability" means, unless otherwise determined by the Committee,
that the Participant has been determined to be disabled under the terms of a
long-term disability plan maintained by the Company or subsidiaries. If the
Participant is a Non-Employee Director, or is not covered by such a long-term
disability plan, then permanent disability shall be determined by the Committee
in its sole discretion.
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(s) "Plan" shall have the meaning set forth in Section 0 hereof.
(t) "Plan Year" shall mean the Company's fiscal year.
(u) "Restricted Period" shall mean the period beginning on the date of grant of
Restricted Stock and ending on the date of vesting of such stock
(v) "Restricted Stock" shall mean shares of Common Stock transferred to the
Participant which are subject to forfeiture or other restrictions established by
the Committee.
(w) "Retirement" shall mean the Participant's termination of employment or
termination of service on the Board, as applicable, by reason of retirement, as
determined by the Committee in its sole discretion.
(x) "Securities Act" shall mean the Securities Act of 1933, as amended from time
to time, and as now or hereafter construed, interpreted and applied by
regulations, rulings and cases.
(y) "Ten Percent Stockholder" shall mean a Participant who, at the time an
Incentive Stock Option is to be granted to such Participant, owns (within the
meaning of Section 422(b)(6) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
within the meaning of Sections 422(e) and 422(f), respectively, of the Code.
3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee shall have the
authority, in its sole discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
powers and authorities either specifically granted to it under the Plan or
necessary or advisable in connection with the administration of the Plan,
including, without limitation, the authority to grant Awards; to determine the
persons to whom and the time or times at which Awards shall be granted; to
determine the type and number of Awards to be granted, the number of shares of
Common Stock to which an Award may relate and the terms, conditions,
restrictions and performance criteria relating to any Award; to determine
whether, to what extent, and under what circumstances an Award may be settled,
cancelled, adjusted, forfeited, exchanged, or surrendered or accelerated; to
construe and interpret the Plan and any Award; to prescribe, amend and rescind
rules and regulations relating to the Plan; to determine the terms and
provisions of Award Agreements, consistent with the terms and provisions of the
Plan; and to make all other determinations deemed necessary or advisable for the
administration of the Plan, consistent with the terms and provisions of the
Plan.
4. ELIGIBILITY.
Awards may be granted to officers, other employees and consultants of the
Company in the sole discretion of the Committee. In determining the persons to
whom Awards shall be granted and the type of Award, the Committee shall take
into account such factors as the Committee shall deem relevant in connection
with accomplishing the purposes of the Plan. In addition, Non-Employee Directors
of the Company will be granted Options solely as set forth in Section 7.
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5. STOCK SUBJECT TO THE PLAN.
(a) Number of Shares. The maximum number of shares of Common Stock reserved for
issuance pursuant to the Plan shall be 4,000,000, subject to equitable
adjustment as provided in Section 5(b) below. Such shares may, in whole or in
part, be authorized but unissued shares or shares that shall have been or may be
reacquired by the Company in the open market, in private transactions or
otherwise. If any shares subject to an Award are forfeited, cancelled, exchanged
or surrendered or if an Award otherwise terminates or expires without a
distribution of shares to the Participant, the shares of Common Stock with
respect to such Award shall, to the extent of any such forfeiture, cancellation,
exchange, surrender, termination or expiration, again be available for Awards
under the Plan.
(b) Equitable Adjustment. In the event that an extraordinary transaction or
other event or circumstance affecting the Common Stock shall occur, including,
but not limited to, any dividend or other distribution (whether in the form of
cash, stock or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, spin-off, combination, repurchase,
share exchange, sale of assets or other similar transaction or event, and the
Committee determines that a change or adjustment in the terms of any Award is
appropriate, then the Committee may, in its sole discretion, make such equitable
changes or adjustments or take any other actions that it deems necessary or
appropriate (which shall be effective at such time as the Committee in its sole
discretion determines), including, but not limited to (A) causing changes or
adjustments to any or all of (i) the number and kind of shares of stock or other
securities or property which may thereafter be issued under the Plan in
connection with Awards (including Awards to Non-Employee Directors pursuant to
Section 0 hereof), (ii) the number and kind of shares of stock or other
securities or property issued or issuable in respect of outstanding Awards,
(iii) the exercise price relating to any Award, and (iv) the limitation on
Option and Restricted Stock grants pursuant to Section 0 and Section 8(d)hereof,
respectively, and (B) cancelling outstanding Awards in exchange for replacement
awards or cash, it being understood that the Committee shall have the authority
to cause different changes or adjustments to be made to any Awards held by
Participants even if such Awards are identical and such Participants are
similarly situated; further, provided, however, that with respect to Options
which are intended by the Committee to remain Incentive Stock Options subsequent
to any such adjustment, such adjustment shall be made in accordance with Section
424 of the Code.
6. STOCK OPTIONS.
Each Option granted pursuant to this Section 0 shall be evidenced by an Award
Agreement, in such form and containing such terms and conditions as the
Committee shall from time to time approve, which Award Agreement shall comply
with and be subject to the following terms and conditions, as applicable.
(a) Stock Options
(1) Number of Shares. Each Award Agreement shall state the number of shares of
Common Stock to which the Option relates.
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(2) Type of Option. Each Award Agreement shall state that the Option constitutes
an Incentive Stock Option or a Nonqualified Stock Option. Any Option which is
intended to be an Incentive Stock Option that does not satisfy the requirements
of Code Section 422 shall be deemed to be a Nonqualified Stock Option.
(3) Option Exercise Price. Each Award Agreement shall state the Option exercise
price, which, except as provided in Section 0 below, shall not be less than one
hundred percent (100%) of the Fair Market Value of the shares of Common Stock
covered by the Option on the date of grant. The Option exercise price shall be
subject to equitable adjustment as provided in Section 0 hereof. Unless
otherwise expressly stated in the Committee resolution granting an Option, the
date as of which the Committee adopts the resolution granting an Option shall be
considered the day on which such Option is granted.
(4) Method and Time of Payment. The Option exercise price shall be paid in full,
at the time of exercise, in cash, in shares of Common Stock having a Fair Market
Value equal to such Option exercise price, in a combination of cash and Common
Stock (or other consideration deemed acceptable by the Committee) or, in the
sole discretion of the Committee, through a cashless exercise procedure.
(5) Term and Exercisability of Options. Each Award Agreement shall provide that
each Option shall become exercisable over a period determined by the Committee
in its discretion; provided, that the Committee shall have the authority to
accelerate the exercisability of any outstanding Option at such time and under
such circumstances as it, in its sole discretion, deems appropriate. The
exercise period shall be not more than ten (10) years from the date of the grant
of the Option, or such shorter period as is determined by the Committee. The
exercise period shall be subject to earlier termination as provided in Section 0
hereof. An Option may be exercised, as to any or all full shares of Common Stock
as to which the Option has become exercisable, by written notice delivered in
person or by mail to the Secretary of the Company, specifying the number of
shares of Common Stock with respect to which the Option is being exercised,
together with payment in full of the Option exercise price. For purposes of the
preceding sentence, the date of exercise will be deemed to be the date upon
which the Secretary of the Company receives both the notification and such
payment.
(6) Termination. If a Participant's employment by the Company terminates, the
Committee will have the exclusive authority to determine if and for how long,
and under what conditions, such Option may be exercised after such termination;
provided, however, that in no event will an Option continue to be exercisable
beyond the expiration date of such Option; provided, further, that if an Award
is an Incentive Stock Option, such Incentive Stock Option must be exercised
within ninety (90) days after any termination which is not a result of death or
Permanent Disability.
(7) Incentive Stock Options. Options granted as Incentive Stock Options shall be
subject to the following special terms and conditions, in addition to the
general terms and conditions specified in this Section 0.
(A) Value of Shares. The aggregate Fair Market Value (determined as of the
date the Incentive Stock Option is granted) of the shares of Common Stock
with respect to which
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Incentive Stock Options granted under this Plan and all other plans of the
Company become exercisable for the first time by each Participant during
any calendar year shall not exceed $100,000.
(B) Ten Percent Stockholder. In the case of an Incentive Stock Option
granted to a Ten Percent Stockholder, (x) the option exercise price shall
not be less than one hundred ten percent (110%) of the Fair Market Value
of the shares of Common Stock on the date of grant of such Incentive Stock
Option, and (y) the exercise period shall not exceed five (5) years from
the date of grant of such Incentive Stock Option.
(8) Maximum Grant of Options. No Plan Participant may receive an Award or Awards
of Options covering in excess of 4,000,000 shares of Common Stock in any Plan
Year.
7. NON-EMPLOYEE DIRECTOR OPTIONS.
Notwithstanding any other provision of the Plan to the contrary, the provisions
of this Section 0 shall apply to and govern grants of Options to Non-Employee
Directors. Except as set forth in this Section 0, the other provisions of the
Plan shall apply to grants of Options to Non-Employee Directors to the extent
not inconsistent with this Section.
(a) General. Non-Employee Directors shall receive Nonqualified Stock Options in
accordance with this Section 0. The purchase price per share of Common Stock
under Options granted to Non-Employee Directors shall be the Fair Market Value
of such share on the date of grant. No Award Agreement with any Non-Employee
Director may alter the provisions of this Section 0 and no Option granted to a
Non-Employee Director may be subject to a discretionary acceleration of
exercisability or vesting.
(b) Grants to New Non-Employee Directors. Each person who first becomes a
Non-Employee Director after the Effective Date shall, at the time such director
is elected and duly qualified, be granted automatically, without action by the
Committee, an Option to purchase 20,000 shares of Common Stock.
(c) Annual Grants to Continuing Directors. On the date of each annual meeting of
stockholders of the Company, each continuing Non-Employee Director shall be
granted automatically, without action by the Committee, an Option to purchase
20,000 shares of Common Stock, unless such Non-Employee Director received a
grant pursuant to paragraph 0 above by reason of first being elected a
Non-Employee Director at such annual meeting.
(d) Vesting. Each Option granted to a Non-Employee Director shall vest and
become exercisable with respect to fifty percent (50%) of the shares of Common
Stock subject thereto on the date of grant thereof and fifty percent (50%) of
the shares of Common Stock subject thereto on the first anniversary of the date
of grant thereof, provided that such Non-Employee Director shall have
continually served as such from such date of grant through and on such
anniversary date. Notwithstanding the foregoing, (i) each outstanding Option
shall become immediately vested and exercisable in full upon the death of the
Non-Employee Director, and (ii) if the Non-Employee Director's membership on the
Board terminates by reason of Retirement, Permanent Disability or Partial
Disability, any outstanding Option held by such Non-Employee Director shall vest
and become exercisable on the earlier of (i) the date which is 90 days following
such
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cessation of Board membership, or (ii) the date such Option would have vested
had the Non-Employee Director continued in service on the Board. Sections 0 and
0 hereof shall not apply to Options granted to Non-Employee Directors.
(e) Duration. Subject to the immediately following sentence, each Option granted
to a Non-Employee Director shall remain outstanding for a term of 10 years from
the date of grant. Upon the cessation of a Non-Employee Director's membership on
the Board for any reason, vested Options granted to such Non-Employee Director
shall expire upon the earliest to occur of (i) three (3) years from the date of
such cessation of Board membership, (ii) the tenth anniversary of the date of
grant of the Option, or (iii) the first anniversary of the Non-Employee
Director's death. The Committee may not provide for an extended exercise period
beyond the periods set forth in this Section 0. Any portion of an Option that is
not vested on the Non-Employee Director's cessation of Board membership for any
reason (or does not become vested by reason of such cessation of membership
under paragraph (d) above) shall be permanently forfeited on the date such
membership ceases.
8. RESTRICTED STOCK.
(a) Eligibility; Terms of Awards. The Committee shall designate the Participants
to whom Restricted Stock is to be granted and the number of shares of Common
Stock that are subject to each such Award, subject to such restrictions,
limitations and conditions as the Committee, in its sole discretion, deems
appropriate.
(b) Restricted Period. During the Restricted Period with respect to an Award of
Restricted Stock, in addition to the other terms and conditions established by
the Committee, the following terms and conditions shall apply:
(1) The shares of Restricted Stock may not be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated until the termination of the
applicable Restricted Period or for such period of time as shall be established
by the Committee and as shall be specified in the Restricted Stock Agreement, or
upon earlier satisfaction of other conditions as specified by the Committee in
its sole discretion and set forth in the Restricted Stock Agreement. All rights
with respect to the Restricted Stock granted to a Participant under the Plan
shall be exercisable during his or her lifetime only by such Participant.
(2) The Participant shall be treated as the owner of shares of Restricted Stock
and shall have the right to vote such shares and shall be entitled to receive
all dividends and other distributions paid with respect to the Restricted Stock.
If any such dividends or distributions are paid in shares of Common Stock or
other property, such shares or property shall be subject to the same
restrictions as the shares of Restricted Stock with respect to which they were
paid.
(3e) Each certificate representing shares of Restricted Stock granted pursuant
to the Plan shall bear the following legend, in addition to such other legends
as the Committee deems appropriate, including those to reflect restrictions
under applicable Federal or state securities law:
"The sale or other transfer of the shares of stock represented by this
certificate, whether voluntary, involuntary or by operation of law, is
subject to certain restrictions on transfer
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set forth in the enherent Corp. 2005 Stock Incentive Plan and a Restricted
Stock Agreement dated _____________________. A copy of the Plan and such
Restricted Stock Agreement may be obtained from the Secretary of enherent
Corp."
(c) Removal of Restrictions. Except as otherwise provided in the Plan or an
Award Agreement, after the last day of the Restricted Period with respect to all
or a portion of the Restricted Stock, the shares that are no longer subject to
the Restricted Period shall become freely transferable by the Participant. As
soon as practicable after the end of the Restricted Period, a new or additional
certificate for such shares without the legend set forth in Section 8(b)(3)
shall be delivered to the Participant.
(d) Performance-Based Awards. The Committee may designate whether any Restricted
Stock Award granted to a Participant is intended to be "performance-based
compensation" as that term is used in Section 162(m) of the Code. Any such
Awards designated as intended to be "performance-based compensation" shall be
conditioned on the achievement of one or more performance measures, to the
extent required by Code Section 162(m). The performance measures shall be based
on any one or more of the following, as selected by the Committee: total
shareholder return, return on equity, return on capital employed, return on
invested capital, cash flow, cumulative cash flow, operating profit, gross or
pre-tax profits, post-tax profits, gross or net margins, consolidated net
income, economic value added, improvements in financial ratings, achievement of
balance sheet or income statement objectives, market or category share or costs.
For Restricted Stock Awards that are intended to be performance-based
compensation, the grant of the Award and the establishment of the performance
measures shall be made during the period required under Code Section 162(m). The
payout of any such Restricted Stock Award to a "covered employee" (within the
meaning of Code Section 162(m)) may be reduced, but not increased, based on the
degree of attainment of other performance criteria or otherwise at the
discretion of the Committee. The number of shares of Common Stock which may be
issued in any fiscal year with respect to Restricted Stock that is intended to
performance-based compensation under this Section 8(d) shall not exceed
2,000,000 shares.
9. GENERAL PROVISIONS.
(a) Compliance with Legal Requirements. The Plan and the granting and exercising
of Awards, and the other obligations of the Company under the Plan and any Award
Agreement or other agreement shall be subject to all applicable federal and
state laws, rules and regulations and to such approvals by any regulatory or
governmental authority or agency as may be required. The Company, in its
discretion, may postpone the issuance or delivery of Common Stock under any
Award as the Company may consider appropriate and may require any Participant to
make such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of Common Stock in
compliance with applicable laws, rules and regulations.
(b) Nontransferability. Awards shall not be transferable by a Participant other
than by will or the laws of descent and distribution, and Options shall be
exercisable during the lifetime of a Participant only by such Participant or his
guardian or legal representative; provided, however Awards may be transferred
pursuant to a domestic relations order awarding benefits to an
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"alternate payee" (within the meaning of Code Section 414(p)(8)) that the
Committee determines satisfies the criteria set forth in paragraphs (1), (2),
and (3) of Code Section 414(p).
(c) No Right To Continued Employment. Nothing in the Plan or in any Award
granted or any Award Agreement or other agreement entered into pursuant hereto
shall confer upon any Participant the right to continue in the employ of the
Company or to be entitled to any remuneration or benefits not set forth in the
Plan or such Award Agreement or other agreement or to interfere with or limit in
any way the right of the Company to terminate such Participant's employment.
(d) Withholding Taxes. Where a Participant or other person is entitled to
receive shares of Common Stock pursuant to the exercise of an Option or is
otherwise entitled to receive shares of Common Stock or cash pursuant to an
Award hereunder, the Company shall have the right to require the Participant or
such other person to pay to the Company the amount of any taxes which the
Company may be required to withhold before delivery to such Participant or other
person of cash or a certificate or certificates representing such shares.
Unless otherwise prohibited by the Committee or by applicable law, a Participant
may satisfy any such withholding tax obligation by any of the following methods,
or by a combination of such methods: (a) tendering a cash payment; (b)
authorizing the Company to withhold from the shares of Common Stock or cash
otherwise payable to such Participant (1) one or more of such shares having an
aggregate Fair Market Value, determined as of the date the withholding tax
obligation arises, less than or equal to the amount of the total withholding tax
obligation, or (2) cash in an amount less than or equal to the amount of the
total withholding tax obligation; or (c) delivering to the Company previously
acquired shares of Common Stock (none of which shares may be subject to any
claim, lien, security interest, community property right or other right of
spouses or present or former family members, pledge, option, voting agreement or
other restriction or encumbrance of any nature whatsoever) having an aggregate
Fair Market Value, determined as of the date the withholding tax obligation
arises, less than or equal to the amount of the total withholding tax
obligation.
(e) Amendment and Termination of the Plan. The Board or the Committee may at any
time and from time to time alter, amend, suspend, or terminate the Plan in whole
or in part; provided that no amendment shall materially adversely affect the
rights of any Participant under any Award previously granted under the Plan
without such Participant's consent; provided further that any amendment that (i)
increases the total number of shares reserved for the Plan (except as provided
in Section 5(b) with respect to equitable adjustments), (ii) changes the
employees or class of employees eligible to participate in the Plan, or (iii)
materially (within the meaning of rules of NASD) changes the terms of the Plan,
shall not be effective without the approval of the Company's stockholders. The
power to grant Options under the Plan will automatically terminate on the tenth
anniversary of the date the Plan is approved by the Company's stockholders. If
the Plan is terminated, any unexercised Option shall continue to be exercisable
in accordance with its terms and the terms of the Plan in effect immediately
prior to such termination.
(f) Participant Rights. No Participant shall have any claim to be granted any
Award under the Plan, and there is no obligation for uniformity of treatment for
Participants. Except as
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provided specifically herein, a Participant or a transferee of an Award shall
have no rights as a stockholder with respect to any shares of Common Stock
covered by any Award until the date of the issuance of a certificate to him or
her for such shares.
(g) Unfunded Status of Awards. The Plan is intended to constitute an unfunded
plan for incentive compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any Award
shall give any such Participant any rights that are greater than those of a
general creditor of the Company.
(h) No Fractional Shares. No fractional shares of Common Stock shall be issued
or delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, other Awards or other property shall be issued or paid in lieu of
such fractional shares or whether such fractional shares or any rights thereto
shall be forfeited or otherwise eliminated.
(i) Governing Law. The Plan and all determinations made and actions taken
pursuant hereto shall be governed by the laws of the State of New York without
giving effect to the conflict of laws principles thereof.
(j) Effective Date. The "Effective Date" of this Plan shall be the date it is
approved by the Company's stockholders.
(k) Beneficiary. A Participant may file with the Committee a written designation
of a beneficiary on such form as may be prescribed by the Committee and may,
from time to time, amend or revoke such designation. If no designated
beneficiary survives the Participant, the executor or administrator of the
Participant's estate shall be deemed to be the grantee's beneficiary.
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[FORM OF OPTION AGREEMENT]
STOCK OPTION AWARD AGREEMENT
AGREEMENT made on [ ], 20__ (the Date of Grant), by and between enherent Corp.,
a Delaware corporation (the "Company"), and [ ] (the "Participant").
WHEREAS, the Company has adopted the enherent Corp. 2005 Stock Incentive Plan
(the Plan); and
WHEREAS, the Company desires to grant to the Participant options under the Plan
to acquire an aggregate of [ ] shares of common stock of the Company, par value
$.0001 per share ("Common Stock"), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan.
2. Grant of Options. The Participant is hereby granted an option (the "Option")
to purchase an aggregate of [ ] shares of Common Stock, pursuant to the terms of
this Agreement and the provisions of the Plan. This Option is intended to
constitute a[n] [Incentive] [Nonqualified] Stock Option.
3. Option Price. The initial exercise price per share of Common Stock subject to
this Option shall be $__________, subject to equitable adjustment in accordance
with the Plan.
4. Conditions to Exercisability. This Option shall vest and become exercisable
with respect to ______ percent (__%) of the shares of Common Stock subject
thereto on each of the first through ____________ anniversaries of the Date of
Grant, so long as the Participant continues to be employed by the Company or any
of its subsidiaries on such dates. In the event of the Participant's death or
Permanent Disability, all shares of Common Stock subject to this Option that
have not previously been forfeited shall vest immediately. In the event of the
Participant's Retirement or Partial Disability, all shares of Common Stock
subject to this Option that have not previously been forfeited shall vest upon
the earlier of (i) ninety (90) days following such Retirement or Partial
Disability, or (ii) the regular vesting date pursuant to the schedule set forth
above. In the event the Participant's employment terminates for reasons other
than death, Permanent Disability, Partial Disability or Retirement, all unvested
shares of Common Stock subject to this Option shall be permanently forfeited on
such termination date.
5. Period of Option. This Option shall expire and no longer be exercisable on
the earliest to occur of:
(a) the tenth anniversary of the Date of Grant [five years in the case of 10%
holders];
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(b) the date of the Participant's termination of employment with the Company or
any of its subsidiaries for Cause;
(c) the first anniversary of the Participant's termination of employment with
the Company or any of its subsidiaries for any reason other than Cause;
provided, that if the Option granted hereunder is an Incentive Stock Option,
such Option must be exercised within ninety (90) days after any termination
which is not a result of death or Permanent Disability. If, within 60 days
following a Participant's termination of employment, the Committee discovers
circumstances that would have permitted it to terminate the Participant's
employment for Cause, such termination date shall be deemed to have been for
Cause.
[THE FOLLOWING SECTION 5A MAY BE ADDED TO CERTAIN INDIVIDUAL AWARD AGREEMENTS AS
DETERMINED BY THE COMMITTEE.]
[5A. Change in Control. Notwithstanding any other provision of the Plan or
this Agreement to the contrary, if, while this Award remains outstanding under
the Plan, a Change in Control (as defined below) of the Company shall occur,
then all shares of Common Stock granted under this Award Agreement that are
outstanding at the time of such Change in Control shall become immediately
exercisable in full, without regard to the years that have elapsed from the Date
of Grant, and, at the option of the Committee, this Option may be cancelled in
exchange for a cash payment or a replacement award of equivalent value.
For purposes of this Section 5A, a Change in Control of the Company shall occur
upon the happening of the earliest to occur of the following:
(i) any person, as such term is used in Sections 13(d) and 14(d) of the Exchange
Act (other than (1) the Company, (2) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or (3) any corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the common stock of the
Company), is or becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person any securities
acquired directly from the Company or its affiliates) representing [ ]% or more
of the combined voting power of the Company's then outstanding voting
securities;
(ii) during any period of not more than two consecutive years, individuals who
at the beginning of such period constitute the Board (such board of directors
being referred to herein as the Existing Board), and any new director (other
than a director designated by a person who has entered into an agreement with
the Company to effect a transaction described in clause (i), (iii) or (iv) of
this Section 5A) whose election by the Existing Board or nomination for election
by the Company's stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved (other than approval given in connection with an actual
or threatened proxy or election contest), cease for any reason to constitute at
least [70]% of such the Existing Board;
2
(iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than (A) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding without conversion or by being converted into voting securities of
the surviving or parent entity) [ ]% or more of the combined voting power of the
voting securities of the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no person (as hereinabove defined) acquires [ ]% or more of the
combined voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets (or any transaction having a similar
effect).]
6. Exercise of Option. This Option may be exercised in whole or part, to the
extent then exercisable, in the following manner: the Participant shall deliver
to the Company written notice specifying the number of shares of Common Stock
that the Participant elects to purchase. The Participant must include with such
notice full payment of the exercise price for the Common Stock being purchased
pursuant to such notice. The exercise price shall be paid in full at the time of
exercise. The exercise price may be paid in cash or by check; by tendering
shares of Common Stock previously acquired by the Participant; or in a
combination of any of the foregoing, in an amount having a combined value equal
to such exercise price. The value of any Common Stock tendered pursuant to the
preceding sentence shall be the Fair Market Value of such Common Stock as of the
last trading day prior to the date of exercise. The Committee, in its
discretion, may require that any previously-owned shares of Common Stock
tendered by the Participant in payment of the exercise price have been held by
the Participant for at least six months prior to such tender.
Upon the delivery of shares of Common Stock acquired pursuant to the exercise of
Options, the Company shall have the right to require the payment of the amount
of any taxes that are required by law to be withheld with respect to such
delivery.
The Participant shall not be deemed to be a holder of any shares of Common Stock
pursuant to exercise of this Option until the date of the issuance of a stock
certificate to him or her for such shares and until such shares are paid for in
full, including any applicable withholding taxes.
If permitted by the Committee at the time of exercise, this Option may also be
exercised pursuant to a cashless exercise program.
7. Representations. The Company represents and warrants that this Agreement has
been authorized by all necessary corporate action of the Company and is a valid
and binding agreement of the Company enforceable against them in accordance with
its terms. The Participant represents and warrants that the Participant is not a
party to any agreement or instrument that would prevent the Participant from
entering into or performing his or her duties in any way under this Agreement.
3
8. Entire Agreement. This Agreement and the Plan contain all the understandings
between the parties hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral or in writing,
previously entered into by them with respect thereto. The Participant represents
that, in executing this Agreement, the Participant does not rely and has not
relied upon any representation or statement not set forth therein made by the
Company with regard to the subject matter, bases or effect of this Agreement or
otherwise.
9. Amendment or Modification, Waiver. Except as set forth in the Plan, no
provision of this Agreement may be amended or waived unless such amendment or
waiver is agreed to in writing, signed by the Participant and by a duly
authorized officer of the Company. No waiver by any party hereto of any breach
by another party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, any prior time or any
subsequent time.
10. Notices. Any notice to be given hereunder shall be in writing and shall be
deemed given when delivered personally, sent by courier or telecopy or
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
TO PARTICIPANT AT:
TO THE COMPANY AT:
enherent Corp.
192 Lexington Avenue
New York, New York 10016
Attn: Corporate Secretary
Any notice delivered personally or by courier under this Section 10 shall be
deemed given on the date delivered and any notice sent by telecopy or registered
or certified mail, postage prepaid, return receipt requested, shall be deemed
given on the date telecopied or mailed.
11. Severability. If any provision of this Agreement or the application of any
such provision to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent permitted by law.
12. Survival. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of laws principles.
4
14. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
15. Construction. This Agreement is made under and subject to the provisions of
the Plan, and all of the provisions of the Plan are hereby incorporated herein
as provisions of this Agreement. If there is a conflict between the provisions
of this Agreement and the provisions of the Plan, the provisions of the
Agreement shall govern. By signing this Agreement, the Participant confirms that
he has received a copy of the Plan and has had an opportunity to review the
contents thereof.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ENHERENT CORP.
By:
Name:
Title:
By:
Name:
5
[FORM OF OPTION AGREEMENT - NONEMPLOYEE DIRECTOR]
STOCK OPTION AWARD AGREEMENT
AGREEMENT made on [ ], 20__ (the Date of Grant), by and between enherent Corp.,
a Delaware corporation (the "Company"), and [ ] (the "Participant").
WHEREAS, the Company has adopted the enherent Corp. 2005 Stock Incentive Plan
(the Plan); and
WHEREAS, the Company desires to grant to the Participant options under the Plan
to acquire an aggregate of 20,000 shares of common stock of the Company, par
value $.0001 per share ("Common Stock"), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan.
2. Grant of Options. The Participant is hereby granted an option (the "Option")
to purchase an aggregate of 20,000 shares of Common Stock, pursuant to the terms
of this Agreement and the provisions of the Plan. This Option is intended to
constitute a Nonqualified Stock Option.
3. Option Price. The initial exercise price per share of Common Stock subject to
this Option shall be $__________, subject to equitable adjustment in accordance
with the Plan.
4. Conditions to Exercisability. This Option shall vest and become exercisable
with respect to fifty percent (50%) of the shares of Common Stock subject
thereto on the Date of Grant and with respect to the remaining fifty percent
(50%) of the shares of Common Stock subject thereto on the first anniversary of
the Date of Grant, so long as the Participant shall have continually served as a
Non-Employee Director from such Date of Grant through and on such anniversary
date. Notwithstanding the foregoing, (i) this Option shall become immediately
vested and exercisable in full upon the death of the Participant, and (ii) if
the Participant's membership on the Board terminates by reason of Retirement,
Permanent Disability or Partial Disability, this Option shall vest and become
exercisable on the earlier of (i) the date which is 90 days following such
cessation of Board membership, or (ii) the date this Option would have vested
had the Participant continued in service on the Board.
5. Period of Option. Subject to the immediately following sentence, this Option
shall remain outstanding for a term of 10 years from the Date of Grant. Upon the
cessation of the Participant's membership on the Board for any reason, any
portion of this Option that is vested on the date of such cessation shall expire
upon the earliest to occur of (i) three (3) years from the date of such
cessation of Board membership, (ii) the tenth anniversary of the Date of Grant,
or (iii) the first anniversary of the Participant's death. Any portion of this
Option that is not vested on the Participant's cessation of Board membership for
any reason (and does not become vested by reason of such cessation of membership
under paragraph 4 above) shall be permanently forfeited on the date such
membership ceases.
1
6. Exercise of Option. This Option may be exercised in whole or part, to the
extent then exercisable, in the following manner: the Participant shall deliver
to the Company written notice specifying the number of shares of Common Stock
that the Participant elects to purchase. The Participant must include with such
notice full payment of the exercise price for the Common Stock being purchased
pursuant to such notice. The exercise price shall be paid in full at the time of
exercise. The exercise price may be paid in cash or by check; by tendering
shares of Common Stock previously acquired by the Participant; or in a
combination of any of the foregoing, in an amount having a combined value equal
to such exercise price. The value of any Common Stock tendered pursuant to the
preceding sentence shall be the Fair Market Value of such Common Stock as of the
last trading day prior to the date of exercise. The Committee, in its
discretion, may require that any previously-owned shares of Common Stock
tendered by the Participant in payment of the exercise price have been held by
the Participant for at least six months prior to such tender.
Upon the delivery of shares of Common Stock acquired pursuant to the exercise of
Options, the Company shall have the right to require the payment of the amount
of any taxes that are required by law to be withheld with respect to such
delivery.
The Participant shall not be deemed to be a holder of any shares of Common Stock
pursuant to exercise of this Option until the date of the issuance of a stock
certificate to him or her for such shares and until such shares are paid for in
full, including any applicable withholding taxes.
If permitted by the Committee at the time of exercise, this Option may also be
exercised pursuant to a cashless exercise program.
7. Representations. The Company represents and warrants that this Agreement has
been authorized by all necessary corporate action of the Company and is a valid
and binding agreement of the Company enforceable against them in accordance with
its terms. The Participant represents and warrants that the Participant is not a
party to any agreement or instrument that would prevent the Participant from
entering into or performing his or her duties in any way under this Agreement.
8. Entire Agreement. This Agreement and the Plan contain all the understandings
between the parties hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral or in writing,
previously entered into by them with respect thereto. The Participant represents
that, in executing this Agreement, the Participant does not rely and has not
relied upon any representation or statement not set forth therein made by the
Company with regard to the subject matter, bases or effect of this Agreement or
otherwise.
9. Amendment or Modification, Waiver. Except as set forth in the Plan, no
provision of this Agreement may be amended or waived unless such amendment or
waiver is agreed to in writing, signed by the Participant and by a duly
authorized officer of the Company. No waiver by any party hereto of any breach
by another party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, any prior time or any
subsequent time.
2
10. Notices. Any notice to be given hereunder shall be in writing and shall be
deemed given when delivered personally, sent by courier or telecopy or
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
TO PARTICIPANT AT:
TO THE COMPANY AT:
enherent Corp.
192 Lexington Avenue
New York, New York 10016
Attn: Corporate Secretary
Any notice delivered personally or by courier under this Section 10 shall be
deemed given on the date delivered and any notice sent by telecopy or registered
or certified mail, postage prepaid, return receipt requested, shall be deemed
given on the date telecopied or mailed.
11. Severability. If any provision of this Agreement or the application of any
such provision to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent permitted by law.
12. Survival. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of laws principles.
14. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
15. Construction. This Agreement is made under and subject to the provisions of
the Plan, and all of the provisions of the Plan are hereby incorporated herein
as provisions of this Agreement. If there is a conflict between the provisions
of this Agreement and the provisions of the Plan, the provisions of the
Agreement shall govern. By signing this Agreement, the Participant confirms that
he has received a copy of the Plan and has had an opportunity to review the
contents thereof.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ENHERENT CORP.
By:
Name:
Title:
By:
Name:
4
RESTRICTED STOCK AGREEMENT
This Agreement, made as of the _____ day of ______________, 20___, (the
"Award Date") between enherent Corp. (the "Company") and
___________________________ (the "Participant");
WITNESSETH THAT:
WHEREAS, the Company maintains the enherent Corp. 2005 Stock Incentive
Plan (the "Plan"); and
WHEREAS, the Participant has been granted an Award of Restricted Stock
under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Participant as follows:
1. Award. Subject to the terms of this Agreement and the Plan, the
Participant is hereby granted an Award of ______________ shares of Common Stock,
subject to the restrictions set forth herein (the "Restricted Stock"). Except as
otherwise defined herein, capitalized terms used in this Agreement have the
respective meanings set forth in the Plan.
2. Restricted Period. Unless forfeited earlier under Section 4, the
"Restricted Period" with respect to the shares awarded hereunder shall begin on
the Award Date and end on the vesting dates specified in the schedule below with
respect to the number of shares vesting on such date:
Vesting Date # of Shares Vesting
[insert vesting schedule]
Notwithstanding the foregoing, in the event of the Participant's Retirement or
Partial Disability, all shares of Restricted Stock subject to this Award that
have not previously been forfeited under Section 4 shall become fully vested on
the date of such event.
3. Restrictions on Shares. During the Restricted Period:
(a) Restricted Shares may not be sold, assigned, transferred,
pledged or otherwise encumbered. Except for such restrictions,
the Participant will be treated as owner of such shares and
shall have all the rights of a shareholder including, but not
limited to, the right to vote such shares and the right to
receive all dividends paid on such shares; and
(b) The certificate representing the Restricted Shares shall be
registered in the name of the Participant and shall be
deposited with the Company and bear the following (or a
similar) legend:
"The sale or other transfer of the shares of stock represented
by this certificate, whether voluntary, involuntary or by
operation of law, is subject to certain restrictions on
transfer set forth in the enherent Corp. 2005 Stock Incentive
Plan and a Restricted Stock Agreement dated
_____________________. A copy of the Plan and such Restricted
Stock Agreement may be obtained from the Secretary of enherent
Corp."
4. Forfeiture of Restricted Stock. In the event the Participant's
employment terminates for reasons other than death, Permanent Disability,
Partial Disability or Retirement, all Restricted Shares subject to a Restricted
Period shall be permanently forfeited on such termination date.
[THE FOLLOWING SECTION 4A MAY BE ADDED TO CERTAIN INDIVIDUAL AWARD AGREEMENTS AS
DETERMINED BY THE COMMITTEE.]
[4A. Change in Control. Notwithstanding any other provision of the Plan
or this Agreement to the contrary, if, while this Award remains outstanding
under the Plan, a Change in Control (as defined below) of the Company shall
occur, then all shares of Restricted Stock granted under this Award Agreement
that have not previously been forfeited under Section 4 at the time of such
Change in Control shall become immediately vested in full, and, at the option of
the Committee, this Award may be cancelled in exchange for a cash payment or a
replacement award of equivalent value.
For purposes of this Section 4A, a Change in Control of the Company shall occur
upon the happening of the earliest to occur of the following:
(a) any person, as such term is used in Sections 13(d) and 14(d)
of the Exchange Act (other than (1) the Company, (2) any
trustee or other fiduciary holding securities under an
employee benefit plan of the Company or (3) any corporation
owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of the common stock of the Company), is or becomes
the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by
such person any securities acquired directly from the Company
or its affiliates) representing [ ]% or more of the combined
voting power of the Company's then outstanding voting
securities;
(b) during any period of not more than two consecutive years,
individuals who at the beginning of such period constitute the
Board (such board of directors being referred to herein as the
Existing Board), and any new director (other than a director
designated by a person who has entered into an agreement with
the Company to effect a transaction described in clause (i),
(iii) or (iv) of this Section
2
4A) whose election by the Existing Board or nomination for
election by the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved (other than approval given in
connection with an actual or threatened proxy or election
contest), cease for any reason to constitute at least [70]% of
such the Existing Board;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than (A) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding without conversion or by being converted into
voting securities of the surviving or parent entity) [ ]% or
more of the combined voting power of the voting securities of
the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger
or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no person (as
hereinabove defined) acquires [ ]% or more of the combined
voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets (or any transaction having a similar
effect).]
5. Equitable Adjustment. In the event that an extraordinary transaction
or other event or circumstance affecting the Common Stock shall occur,
including, but not limited to, any dividend or other distribution (whether in
the form of cash, stock or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, spin-off,
combination, repurchase, share exchange, sale of assets or other similar
transaction or event, and the Committee determines that a change or adjustment
in the terms of this Award is appropriate, then the Committee may, in its sole
discretion, make such equitable changes or adjustments or take any other actions
that it deems necessary or appropriate (which shall be effective at such time as
the Committee in its sole discretion determines), as set forth in Section 5(b)
of the Plan.
6. Representations. The Company represents and warrants that this
Agreement has been authorized by all necessary corporate action of the Company
and is a valid and binding agreement of the Company enforceable against them in
accordance with its terms. The Participant represents and warrants that the
Participant is not a party to any agreement or instrument that would prevent the
Participant from entering into or performing his or her duties in any way under
this Agreement.
7. Entire Agreement. This Agreement and the Plan contain all the
understandings between the parties hereto pertaining to the matters referred to
herein, and supersedes all undertakings and agreements, whether oral or in
writing, previously entered into by them with
3
respect thereto. The Participant represents that, in executing this Agreement,
the Participant does not rely and has not relied upon any representation or
statement not set forth therein made by the Company with regard to the subject
matter, bases or effect of this Agreement or otherwise.
8. Amendment or Modification, Waiver. Except as set forth in the Plan,
no provision of this Agreement may be amended or waived unless such amendment or
waiver is agreed to in writing, signed by the Participant and by a duly
authorized officer of the Company. No waiver by any party hereto of any breach
by another party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, any prior time or any
subsequent time.
9. Notices. Any notice to be given hereunder shall be in writing and
shall be deemed given when delivered personally, sent by courier or telecopy or
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
TO PARTICIPANT AT:
TO THE COMPANY AT:
enherent Corp.
192 Lexington Avenue
New York, New York 10016
Attn: Corporate Secretary
Any notice delivered personally or by courier under this Section 9 shall be
deemed given on the date delivered and any notice sent by telecopy or registered
or certified mail, postage prepaid, return receipt requested, shall be deemed
given on the date telecopied or mailed.
10. Severability. If any provision of this Agreement or the application
of any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable, shall not be affected thereby, and each provision
hereof shall be validated and shall be enforced to the fullest extent permitted
by law.
11. Survival. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of laws principles.
4
13. Headings. All descriptive headings of sections and paragraphs in
this Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
14. Construction. This Agreement is made under and subject to the
provisions of the Plan, and all of the provisions of the Plan are hereby
incorporated herein as provisions of this Agreement. If there is a conflict
between the provisions of this Agreement and the provisions of the Plan, the
provisions of the Agreement shall govern. By signing this Agreement, the
Participant confirms that he has received a copy of the Plan and has had an
opportunity to review the contents thereof.
15. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
enherent Corp.
By:
-----------------------------------
Its:
-------------------------------
---------------------------------------
[Participant]
5