EXHIBIT 99.1
ONE VOICE TECHNOLOGIES, INC.
2005 STOCK INCENTIVE PLAN
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THIS ONE VOICE TECHNOLOGIES, INC. 2005 STOCK INCENTIVE PLAN (the
"PLAN") is designed to retain directors, executives and selected employees and
consultants and reward them for making major contributions to the success of the
Company. These objectives are accomplished by making long-term incentive awards
under the Plan thereby providing Participants with a proprietary interest in the
growth and performance of the Company.
1. Definitions.
(a) "BOARD" - The Board of Directors of the Company.
(b) "CODE" - The Internal Revenue Code of 1986, as amended from time to
time.
(c) "COMMITTEE" - The Compensation Committee of the Company's Board, or
such other committee of the Board that is designated by the Board to administer
the Plan, composed of not less than two members of the Board all of whom are
disinterested persons, as contemplated by Rule 16b-3 ("RULE 16B-3") promulgated
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE Act").
(d) "COMPANY" - One Voice Technologies, Inc. and its subsidiaries
including subsidiaries of subsidiaries.
(e) "EXCHANGE Act" - The Securities Exchange Act of 1934, as amended from
time to time.
(f) "FAIR MARKET VALUE" - The fair market value of the Company's issued
and outstanding Stock as determined in good faith by the Board or Committee.
(g) "NEVADA SECURITIES RULES" - Section 90.520(2)(l) of the Nevada
Revised Statutes.
(h) "GRANT" - The grant of any form of stock option, stock award, or
stock purchase offer, whether granted singly, in combination or in tandem, to a
Participant pursuant to such terms, conditions and limitations as the Committee
may establish in order to fulfill the objectives of the Plan.
(i) "GRANT AGREEMENT" - An agreement between the Company and a
Participant that sets forth the terms, conditions and limitations applicable to
a Grant.
(j) "OPTION" - Either an Stock Incentive Option, in accordance with
Section 422 of Code, or a Nonstatutory Option, to purchase the Company's Stock
that may be awarded to a Participant under the Plan. A Participant who receives
an award of an Option shall be referred to as an "OPTIONEE."
(k) "Participant" - A director, officer, employee or consultant of the
Company to whom an Award has been made under the Plan.
(l) "RESTRICTED STOCK PURCHASE OFFER" - A Grant of the right to
purchase a specified number of shares of Stock pursuant to a written agreement
issued under the Plan.
(m) "SECURITIES ACT" - The Securities Act of 1933, as amended from time
to time.
(n) "STOCK" - Authorized and issued or unissued shares of common stock
of the Company.
(o) "STOCK Award" - A Grant made under the Plan in stock or denominated
in units of stock for which the Participant is not obligated to pay additional
consideration.
2. Administration. The Plan shall be administered by the Board, provided
however, that the Board may delegate such administration to the Committee.
Subject to the provisions of the Plan, the Board and/or the Committee shall have
authority to
(a) grant, in its discretion, Stock Incentive Options in accordance
with Section 422 of the Code, or Nonstatutory Options, Stock Awards or
Restricted Stock Purchase Offers;
(b) determine in good faith the fair market value of the Stock covered
by any Grant;
(c) determine which eligible persons shall receive Grants and the
number of shares, restrictions, terms and conditions to be included in such
Grants;
(d) construe and interpret the Plan;
(e) promulgate, amend and rescind rules and regulations relating to its
administration, and correct defects, omissions and inconsistencies in the Plan
or any Grant;
(f) consistent with the Plan and with the consent of the Participant,
as appropriate, amend any outstanding Grant or amend the exercise date or dates
thereof;
(g) determine the duration and purpose of leaves of absence which may
be granted to Participants without constituting termination of their employment
for the purpose of the Plan or any Grant; and
(h) make all other determinations necessary or advisable for the Plan's
administration. The interpretation and construction by the Board of any
provisions of the Plan or selection of Participants shall be conclusive and
final. No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Grant made
thereunder.
3. Eligibility.
(a) GENERAL: The persons who shall be eligible to receive Grants shall
be directors, officers, employees or consultants to the Company. The term
consultant shall mean any person, other than an employee, who is engaged by the
Company to render services and is compensated for such services. An Optionee may
hold more than one Option. Any issuance of a Grant to an officer or director of
the Company subsequent to the first registration of any of the securities of the
Company under the Exchange Act shall comply with the requirements of Rule 16b-3.
(b) STOCK INCENTIVE OPTIONS: Stock Incentive Options may only be issued
to employees of the Company. Stock Incentive Options may be granted to officers
or directors, provided they are also employees of the Company. Payment of a
director's fee shall not be sufficient to constitute employment by the Company.
The Company shall not grant an Stock Incentive Option under
the Plan to any employee if such Grant would result in such employee
holding the right to exercise for the first time in any one calendar
year, under all Stock Incentive Options granted under the Plan or any
other plan maintained by the Company, with respect to shares of Stock
having an aggregate fair market value, determined as of the date of the
Option is granted, in excess of $500,000. Should it be determined that
an Stock Incentive Option granted under the Plan exceeds such maximum
for any reason other than a failure in good faith to value the Stock
subject to such option, the excess portion of such option shall be
considered a Nonstatutory Option. To the extent the employee holds two
(2) or more such Options which become exercisable for the first time in
the same calendar year, the foregoing limitation on the exercisability
of such Option as Stock Incentive Options under the Federal tax laws
shall be applied on the basis of the order in which such Options are
granted. If, for any reason, an entire Option does not qualify as an
Stock Incentive Option by reason of exceeding such maximum, such Option
shall be considered a Nonstatutory Option.
(c) NONSTATUTORY OPTION: The provisions of the foregoing Section 3(b)
shall not apply to any Option designated as a "NONSTATUTORY OPTION" or which
sets forth the intention of the parties that the Option be a Nonstatutory
Option.
(d) STOCK AWARDS AND RESTRICTED STOCK PURCHASE OFFERS: The provisions
of this Section 3 shall not apply to any Stock Award or Restricted Stock
Purchase Offer under the Plan.
4. Stock.
(a) AUTHORIZED STOCK: Stock subject to Grants may be either unissued or
reacquired Stock.
(b) NUMBER OF SHARES: Subject to adjustment as provided in Section 5(i)
of the Plan, the total number of shares of Stock which may be purchased or
granted directly by Options, Stock Awards or Restricted Stock Purchase Offers,
or purchased indirectly through exercise of Options granted under the Plan shall
not exceed Sixty Million (60,000,000). If any Grant shall for any reason
terminate or expire, any shares allocated thereto but remaining unpurchased upon
such expiration or termination shall again be available for Grants with respect
thereto under the Plan as though no Grant had previously occurred with respect
to such shares. Any shares of Stock issued pursuant to a Grant and repurchased
pursuant to the terms thereof shall be available for future Grants as though not
previously covered by a Grant.
(c) RESERVATION OF SHARES: The Company shall reserve and keep available
at all times during the term of the Plan such number of shares as shall be
sufficient to satisfy the requirements of the Plan. If, after reasonable
efforts, which efforts shall not include the registration of the Plan or Grants
under the Securities Act, the Company is unable to obtain authority from any
applicable regulatory body, which authorization is deemed necessary by legal
counsel for the Company for the lawful issuance of shares hereunder, the Company
shall be relieved of any liability with respect to its failure to issue and sell
the shares for which such requisite authority was so deemed necessary unless and
until such authority is obtained.
(d) APPLICATION OF FUNDS: The proceeds received by the Company from the
sale of Stock pursuant to the exercise of Options or rights under Stock Purchase
Agreements will be used for general corporate purposes.
(e) NO OBLIGATION TO Exercise: The issuance of a Grant shall impose no
obligation upon the Participant to exercise any rights under such Grant.
5. Terms and Conditions of Options. Options granted hereunder shall be evidenced
by agreements between the Company and the respective Optionees, in such form and
substance as the Board or Committee shall from time to time approve. The form of
Stock Incentive Option Agreement attached hereto as EXHIBIT A and the three
forms of a Nonstatutory Stock Option Agreement for employees, for directors and
for consultants, attached hereto as EXHIBIT B-1, EXHIBIT B-2 and EXHIBIT B-3,
respectively, shall be deemed to be approved by the Board. Option agreements
need not be identical, and in each case may include such provisions as the Board
or Committee may determine, but all such agreements shall be subject to and
limited by the following terms and conditions:
(a) NUMBER OF SHARES: Each Option shall state the number of shares to
which it pertains.
(b) EXERCISE PRICE: Each Option shall state the exercise price, which
shall be determined as follows:
(i) Any Stock Incentive Option granted to a person who at the
time the Option is granted owns (or is deemed to own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power or value of all classes of
stock of the Company ("TEN PERCENT HOLDER") shall have an exercise
price of no less than 110% of the Fair Market Value of the Stock as of
the date of grant; and
(ii) Stock Incentive Options granted to a person who at the
time the Option is granted is not a Ten Percent Holder shall have an
exercise price of no less than 100% of the Fair Market Value of the
Stock as of the date of grant.
For the purposes of this Section 5(b), the Fair Market Value
shall be as determined by the Board in good faith, which determination
shall be conclusive and binding; provided however, that if there is a
public market for such Stock, the Fair Market Value per share shall be
the average of the bid and asked prices (or the closing price if such
stock is listed on the NASDAQ National Market System or Small Cap Issue
Market) on the date of grant of the Option, or if listed on a stock
exchange, the closing price on such exchange on such date of grant.
(c) MEDIUM AND TIME OF PAYMENT: The exercise price shall become
immediately due upon exercise of the Option and shall be paid in cash or check
made payable to the Company. Should the Company's outstanding Stock be
registered under Section 12(g) of the Exchange Act at the time the Option is
exercised, then the exercise price may also be paid as follows:
(i) in shares of Stock held by the Optionee for the requisite
period necessary to avoid a charge to the Company's earnings for
financial reporting purposes and valued at Fair Market Value on the
exercise date, or
(ii) through a special sale and remittance procedure pursuant
to which the Optionee shall concurrently provide irrevocable written
instructions (a) to a Company designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the Company, out of
the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased shares
plus all applicable Federal, state and local income and employment
taxes required to be withheld by the Company by reason of such purchase
and (b) to the Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale
transaction.
At the discretion of the Board, exercisable either at the time
of Option grant or of Option exercise, the exercise price may also be
paid (i) by Optionee's delivery of a promissory note in form and
substance satisfactory to the Company and permissible under the
Securities Rules of the State of Nevada and bearing interest at a rate
determined by the Board in its sole discretion, but in no event less
than the minimum rate of interest required to avoid the imputation of
compensation income to the Optionee under the Federal tax laws, or (ii)
in such other form of consideration permitted by the Nevada
corporations law as may be acceptable to the Board.
(d) TERM AND EXERCISE OF OPTIONS: Any Option granted to an employee of
the Company shall become exercisable over a period of no longer than five (5)
years, and no less than twenty percent (20%) of the shares covered thereby shall
become exercisable annually. No Option shall be exercisable, in whole or in
part, prior to one (1) year from the date it is granted unless the Board shall
specifically determine otherwise, as provided herein. In no event shall any
Option be exercisable after the expiration of ten (10) years from the date it is
granted, and no Stock Incentive Option granted to a Ten Percent Holder shall, by
its terms, be exercisable after the expiration of five (5) years from the date
of the Option. Unless otherwise specified by the Board or the Committee in the
resolution authorizing such Option, the date of grant of an Option shall be
deemed to be the date upon which the Board or the Committee authorizes the
granting of such Option.
Each Option shall be exercisable to the nearest whole share, in
installments or otherwise, as the respective Option agreements may provide.
During the lifetime of an Optionee, the Option shall be exercisable only by the
Optionee and shall not be assignable or transferable by the Optionee, and no
other person shall acquire any rights therein. To the extent not exercised,
installments (if more than one) shall accumulate, but shall be exercisable, in
whole or in part, only during the period for exercise as stated in the Option
agreement, whether or not other installments are then exercisable.
(e) TERMINATION OF STATUS AS EMPLOYEE, CONSULTANT OR Director: If
Optionee's status as an employee shall terminate for any reason other than
Optionee's disability or death, then Optionee (or if the Optionee shall die
after such termination, but prior to exercise, Optionee's personal
representative or the person entitled to succeed to the Option) shall have the
right to exercise the portions of any of Optionee's Stock Incentive Options
which were exercisable as of the date of such termination, in whole or in part,
not less than 30 days nor more than three (3) months after such termination (or,
in the event of "TERMINATION FOR GOOD CAUSE" as that term is defined in Nevada
case law related thereto, or by the terms of the Plan or the Option Agreement or
an employment agreement, the Option shall automatically terminate as of the
termination of employment as to all shares covered by the Option).
With respect to Nonstatutory Options granted to employees, directors or
consultants, the Board may specify such period for exercise, not less than 30
days (except that in the case of "TERMINATION FOR CAUSE" or removal of a
director, the Option shall automatically terminate as of the termination of
employment or services as to shares covered by the Option, following termination
of employment or services as the Board deems reasonable and appropriate. The
Option may be exercised only with respect to installments that the Optionee
could have exercised at the date of termination of employment or services.
Nothing contained herein or in any Option granted pursuant hereto shall be
construed to affect or restrict in any way the right of the Company to terminate
the employment or services of an Optionee with or without cause.
(f) DISABILITY OF Optionee: If an Optionee is disabled (within the
meaning of Section 22(e)(3) of the Code) at the time of termination, the three
(3) month period set forth in Section 5(e) shall be a period, as determined by
the Board and set forth in the Option, of not less than six months nor more than
one year after such termination.
(g) DEATH OF OPTIONEE: If an Optionee dies while employed by, engaged
as a consultant to, or serving as a Director of the Company, the portion of such
Optionee's Option which was exercisable at the date of death may be exercised,
in whole or in part, by the estate of the decedent or by a person succeeding to
the right to exercise such Option at any time within (i) a period, as determined
by the Board and set forth in the Option, of not less than six (6) months nor
more than one (1) year after Optionee's death, which period shall not be more,
in the case of a Nonstatutory Option, than the period for exercise following
termination of employment or services, or (ii) during the remaining term of the
Option, whichever is the lesser. The Option may be so exercised only with
respect to installments exercisable at the time of Optionee's death and not
previously exercised by the Optionee.
(h) NONTRANSFERABILITY OF OPTION: No Option shall be transferable by
the Optionee, except by will or by the laws of descent and distribution.
(i) RECAPITALIZATION: Subject to any required action of shareholders,
the number of shares of Stock covered by each outstanding Option, and the
exercise price per share thereof set forth in each such Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Stock of the Company resulting from a stock split, stock dividend,
combination, subdivision or reclassification of shares, or the payment of a
stock dividend, or any other increase or decrease in the number of such shares
affected without receipt of consideration by the Company; provided, however, the
conversion of any convertible securities of the Company shall not be deemed to
have been "EFFECTED WITHOUT RECEIPT OF CONSIDERATION" by the Company.
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "REORGANIZATION"), unless otherwise provided by the Board, this
Option shall terminate immediately prior to such date as is determined by the
Board, which date shall be no later than the consummation of such
Reorganization. In such event, if the entity which shall be the surviving entity
does not tender to Optionee an offer, for which it has no obligation to do so,
to substitute for any unexercised Option a stock option or capital stock of such
surviving entity, as applicable, which on an equitable basis shall provide the
Optionee with substantially the same economic benefit as such unexercised
Option, then the Board may grant to such Optionee, in its sole and absolute
discretion and without obligation, the right for a period commencing thirty (30)
days prior to and ending immediately prior to the date determined by the Board
pursuant hereto for termination of the Option or during the remaining term of
the Option, whichever is the lesser, to exercise any unexpired Option or Options
without regard to the installment provisions of Paragraph 6(d) of the Plan;
provided, that any such right granted shall be granted to all Optionees not
receiving an offer to receive substitute options on a consistent basis, and
provided further, that any such exercise shall be subject to the consummation of
such Reorganization.
Subject to any required action of shareholders, if the Company shall be
the surviving entity in any merger or consolidation, each outstanding Option
thereafter shall pertain to and apply to the securities to which a holder of
shares of Stock equal to the shares subject to the Option would have been
entitled by reason of such merger or consolidation.
In the event of a change in the Stock of the Company as presently
constituted, which is limited to a change of all of its authorized shares
without par value into the same number of shares with a par value, the shares
resulting from any such change shall be deemed to be the Stock within the
meaning of the Plan.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
expressly provided in this Section 5(i), the Optionee shall have no rights by
reason of any subdivision or consolidation of shares of stock of any class or
the payment of any stock dividend or any other increase or decrease in the
number of shares of stock of any class, and the number or price of shares of
Stock subject to any Option shall not be affected by, and no adjustment shall be
made by reason of, any dissolution, liquidation, merger, consolidation or sale
of assets or capital stock, or any issue by the Company of shares of stock of
any class or securities convertible into shares of stock of any class.
The Grant of an Option pursuant to the Plan shall not affect in any way
the right or power of the Company to make any adjustments, reclassifications,
reorganizations or changes in its capital or business structure or to merge,
consolidate, dissolve, or liquidate or to sell or transfer all or any part of
its business or assets.
(j) RIGHTS AS A SHAREHOLDER: An Optionee shall have no rights as a
shareholder with respect to any shares covered by an Option until the effective
date of the issuance of the shares following exercise of such Option by
Optionee. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued,
except as expressly provided in Section 5(i) hereof.
(k) MODIFICATION, ACCELERATION, EXTENSION, AND RENEWAL OF OPTIONS:
Subject to the terms and conditions and within the limitations of the Plan, the
Board may modify an Option, or, once an Option is exercisable, accelerate the
rate at which it may be exercised, and may extend or renew outstanding Options
granted under the Plan or accept the surrender of outstanding Options (to the
extent not theretofore exercised) and authorize the granting of new Options in
substitution for such Options, provided such action is permissible under Section
422 of the Code and the Nevada Securities Rules. Notwithstanding the provisions
of this Section 5(k), however, no modification of an Option shall, without the
consent of the Optionee, alter to the Optionee's detriment or impair any rights
or obligations under any Option theretofore granted under the Plan.
(l) EXERCISE BEFORE EXERCISE DATE: At the discretion of the Board, the
Option may, but need not, include a provision whereby the Optionee may elect to
exercise all or any portion of the Option prior to the stated exercise date of
the Option or any installment thereof. Any shares so purchased prior to the
stated exercise date shall be subject to repurchase by the Company upon
termination of Optionee's employment as contemplated by Section 5(n) hereof
prior to the exercise date stated in the Option and such other restrictions and
conditions as the Board or Committee may deem advisable.
(m) OTHER PROVISIONS: The Option agreements authorized under the Plan
shall contain such other provisions, including, without limitation, restrictions
upon the exercise of the Options, as the Board or the Committee shall deem
advisable. Shares shall not be issued pursuant to the exercise of an Option, if
the exercise of such Option or the issuance of shares thereunder would violate,
in the opinion of legal counsel for the Company, the provisions of any
applicable law or the rules or regulations of any applicable governmental or
administrative agency or body, such as the Code, the Securities Act, the
Exchange Act, the Nevada Securities Rules, Nevada corporation law, and the rules
promulgated under the foregoing or the rules and regulations of any exchange
upon which the shares of the Company are listed. Without limiting the generality
of the foregoing, the exercise of each Option shall be subject to the condition
that if at any time the Company shall determine that (i) the satisfaction of
withholding tax or other similar liabilities, or (ii) the listing, registration
or qualification of any shares covered by such exercise upon any securities
exchange or under any state or federal law, or (iii) the consent or approval of
any regulatory body, or (iv) the perfection of any exemption from any such
withholding, listing, registration, qualification, consent or approval is
necessary or desirable in connection with such exercise or the issuance of
shares thereunder, then in any such event, such exercise shall not be effective
unless such withholding, listing registration, qualification, consent, approval
or exemption shall have been effected, obtained or perfected free of any
conditions not acceptable to the Company.
(n) REPURCHASE AGREEMENT: The Board may, in its discretion, require as
a condition to the Grant of an Option hereunder, that an Optionee execute an
agreement with the Company, in form and substance satisfactory to the Board in
its discretion ("REPURCHASE AGREEMENT"), (i) restricting the Optionee's right to
transfer shares purchased under such Option without first offering such shares
to the Company or another shareholder of the Company upon the same terms and
conditions as provided therein; and (ii) providing that upon termination of
Optionee's employment with the Company, for any reason, the Company (or another
shareholder of the Company, as provided in the Repurchase Agreement) shall have
the right at its discretion (or the discretion of such other shareholders) to
purchase and/or redeem all such shares owned by the Optionee on the date of
termination of his or her employment at a price equal to: (A) the fair value of
such shares as of such date of termination; or (B) if such repurchase right
lapses at 20% of the number of shares per year, the original purchase price of
such shares, and upon terms of payment permissible under the Nevada Securities
Rules; provided that in the case of Options or Stock Awards granted to officers,
directors, consultants or affiliates of the Company, such repurchase provisions
may be subject to additional or greater restrictions as determined by the Board
or Committee.
6. Stock Awards and Restricted Stock Purchase Offers.
(a) TYPES OF GRANTS.
(i) STOCK Award. All or part of any Stock Award under the Plan
may be subject to conditions established by the Board or the Committee,
and set forth in the Stock Award Agreement, which may include, but are
not limited to, continuous service with the Company, achievement of
specific business objectives, increases in specified indices, attaining
growth rates and other comparable measurements of Company performance.
Such Awards may be based on Fair Market Value or other specified
valuation. All Stock Awards will be made pursuant to the execution of a
Stock Award Agreement substantially in the form attached hereto as
EXHIBIT C.
(ii) RESTRICTED STOCK PURCHASE OFFER. A Grant of a Restricted
Stock Purchase Offer under the Plan shall be subject to such (i)
vesting contingencies related to the Participant's continued
association with the Company for a specified time and (ii) other
specified conditions as the Board or Committee shall determine, in
their sole discretion, consistent with the provisions of the Plan. All
Restricted Stock Purchase Offers shall be made pursuant to a Restricted
Stock Purchase Offer substantially in the form attached hereto as
EXHIBIT D.
(b) CONDITIONS AND RESTRICTIONS. Shares of Stock which Participants may
receive as a Stock Award under a Stock Award Agreement or Restricted Stock
Purchase Offer under a Restricted Stock Purchase Offer may include such
restrictions as the Board or Committee, as applicable, shall determine,
including restrictions on transfer, repurchase rights, right of first refusal,
and forfeiture provisions. When transfer of Stock is so restricted or subject to
forfeiture provisions it is referred to as "RESTRICTED STOCK". Further, with
Board or Committee approval, Stock Awards or Restricted Stock Purchase Offers
may be deferred, either in the form of installments or a future lump sum
distribution. The Board or Committee may permit selected Participants to elect
to defer distributions of Stock Awards or Restricted Stock Purchase Offers in
accordance with procedures established by the Board or Committee to assure that
such deferrals comply with applicable requirements of the Code including, at the
choice of Participants, the capability to make further deferrals for
distribution after retirement. Any deferred distribution, whether elected by the
Participant or specified by the Stock Award Agreement, Restricted Stock Purchase
Offers or by the Board or Committee, may require the payment be forfeited in
accordance with the provisions of Section 6(c). Dividends or dividend equivalent
rights may be extended to and made part of any Stock Award or Restricted Stock
Purchase Offers denominated in Stock or units of Stock, subject to such terms,
conditions and restrictions as the Board or Committee may establish.
(c) CANCELLATION AND RESCISSION OF GRANTS. Unless the Stock Award
Agreement or Restricted Stock Purchase Offer specifies otherwise, the Board or
Committee, as applicable, may cancel any unexpired, unpaid, or deferred Grants
at any time if the Participant is not in compliance with all other applicable
provisions of the Stock Award Agreement or Restricted Stock Purchase Offer, the
Plan and with the following conditions:
(i) A Participant shall not render services for any
organization or engage directly or indirectly in any business which, in
the judgment of the chief executive officer of the Company or other
senior officer designated by the Board or Committee, is or becomes
competitive with the Company, or which organization or business, or the
rendering of services to such organization or business, is or becomes
otherwise prejudicial to or in conflict with the interests of the
Company. For Participants whose employment has terminated, the judgment
of the chief executive officer shall be based on the Participant's
position and responsibilities while employed by the Company, the
Participant's post-employment responsibilities and position with the
other organization or business, the extent of past, current and
potential competition or conflict between the Company and the other
organization or business, the effect on the Company's customers,
suppliers and competitors and such other considerations as are deemed
relevant given the applicable facts and circumstances. A Participant
who has retired shall be free, however, to purchase as an investment or
otherwise, stock or other securities of such organization or business
so long as they are listed upon a recognized securities exchange or
traded over-the-counter, and such investment does not represent a
substantial investment to the Participant or a greater than ten percent
(10%) equity interest in the organization or business.
(ii) A Participant shall not, without prior written
authorization from the Company, disclose to anyone outside the Company,
or use in other than the Company's business, any confidential
information or material, as defined in the Company's Proprietary
Information and Invention Agreement or similar agreement regarding
confidential information and intellectual property, relating to the
business of the Company, acquired by the Participant either during or
after employment with the Company.
(iii) A Participant, pursuant to the Company's Proprietary
Information and Invention Agreement, shall disclose promptly and assign
to the Company all right, title and interest in any invention or idea,
patentable or not, made or conceived by the Participant during
employment by the Company, relating in any manner to the actual or
anticipated business, research or development work of the Company and
shall do anything reasonably necessary to enable the Company to secure
a patent where appropriate in the United States and in foreign
countries.
(iv) Upon exercise, payment or delivery pursuant to a Grant,
the Participant shall certify on a form acceptable to the Committee
that he or she is in compliance with the terms and conditions of the
Plan. Failure to comply with all of the provisions of this Section 6(c)
prior to, or during the six months after, any exercise, payment or
delivery pursuant to a Grant shall cause such exercise, payment or
delivery to be rescinded. The Company shall notify the Participant in
writing of any such rescission within two years after such exercise,
payment or delivery. Within ten days after receiving such a notice from
the Company, the Participant shall pay to the Company the amount of any
gain realized or payment received as a result of the rescinded
exercise, payment or delivery pursuant to a Grant. Such payment shall
be made either in cash or by returning to the Company the number of
shares of Stock that the Participant received in connection with the
rescinded exercise, payment or delivery.
(d) NONASSIGNABILITY.
(i) Except pursuant to Section 6(e)(iii) and except as set
forth in Section 6(d)(ii), no Grant or any other benefit under the Plan
shall be assignable or transferable, or payable to or exercisable by,
anyone other than the Participant to whom it was granted.
(ii) Where a Participant terminates employment and retains a
Grant pursuant to Section 6(e)(ii) in order to assume a position with a
governmental, charitable or educational institution, the Board or
Committee, in its discretion and to the extent permitted by law, may
authorize a third party (including but not limited to the trustee of a
"blind" trust), acceptable to the applicable governmental or
institutional authorities, the Participant and the Board or Committee,
to act on behalf of the Participant with regard to such Awards.
(e) TERMINATION OF EMPLOYMENT. If the employment or service to the
Company of a Participant terminates, other than pursuant to any of the following
provisions under this Section 6(e), all unexercised, deferred and unpaid Stock
Awards or Restricted Stock Purchase Offers shall be cancelled immediately,
unless the Stock Award Agreement or Restricted Stock Purchase Offer provides
otherwise:
(i) RETIREMENT UNDER A COMPANY RETIREMENT PLAN. When a
Participant's employment terminates as a result of retirement in
accordance with the terms of a Company retirement plan, the Board or
Committee may permit Stock Awards or Restricted Stock Purchase Offers
to continue in effect beyond the date of retirement in accordance with
the applicable Grant Agreement and the exercisability and vesting of
any such Grants may be accelerated.
(ii) RIGHTS IN THE BEST INTERESTS OF THE COMPANY. When a
Participant resigns from the Company and, in the judgment of the Board
or Committee, the acceleration and/or continuation of outstanding Stock
Awards or Restricted Stock Purchase Offers would be in the best
interests of the Company, the Board or Committee may (i) authorize,
where appropriate, the acceleration and/or continuation of all or any
part of Grants issued prior to such termination and (ii) permit the
exercise, vesting and payment of such Grants for such period as may be
set forth in the applicable Grant Agreement, subject to earlier
cancellation pursuant to Section 9 or at such time as the Board or
Committee shall deem the continuation of all or any part of the
Participant's Grants are not in the Company's best interest.
(iii) DEATH OR DISABILITY OF A PARTICIPANT.
(1) In the event of a Participant's death, the
Participant's estate or beneficiaries shall have a period up
to the expiration date specified in the Grant Agreement within
which to receive or exercise any outstanding Grant held by the
Participant under such terms as may be specified in the
applicable Grant Agreement. Rights to any such outstanding
Grants shall pass by will or the laws of descent and
distribution in the following order: (a) to beneficiaries so
designated by the Participant; if none, then (b) to a legal
representative of the Participant; if none, then (c) to the
persons entitled thereto as determined by a court of competent
jurisdiction. Grants so passing shall be made at such times
and in such manner as if the Participant were living.
(2) In the event a Participant is deemed by the Board
or Committee to be unable to perform his or her usual duties
by reason of mental disorder or medical condition which does
not result from facts which would be grounds for termination
for cause, Grants and rights to any such Grants may be paid to
or exercised by the Participant, if legally competent, or a
committee or other legally designated guardian or
representative if the Participant is legally incompetent by
virtue of such disability.
(3) After the death or disability of a Participant,
the Board or Committee may in its sole discretion at any time
(1) terminate restrictions in Grant Agreements; (2) accelerate
any or all installments and rights; and (3) instruct the
Company to pay the total of any accelerated payments in a lump
sum to the Participant, the Participant's estate,
beneficiaries or representative; notwithstanding that, in the
absence of such termination of restrictions or acceleration of
payments, any or all of the payments due under the Grant might
ultimately have become payable to other beneficiaries.
(4) In the event of uncertainty as to interpretation
of or controversies concerning this Section 6, the
determinations of the Board or Committee, as applicable, shall
be binding and conclusive.
7. Investment Intent. All Grants under the Plan are intended to be exempt from
registration under the Securities Act provided by Section 4(2) thereunder.
Unless and until the granting of Options or sale and issuance of Stock subject
to the Plan are registered under the Securities Act or shall be exempt pursuant
to the rules promulgated thereunder, each Grant under the Plan shall provide
that the purchases or other acquisitions of Stock thereunder shall be for
investment purposes and not with a view to, or for resale in connection with,
any distribution thereof. Further, unless the issuance and sale of the Stock
have been registered under the Securities Act, each Grant shall provide that no
shares shall be purchased upon the exercise of the rights under such Grant
unless and until (i) all then applicable requirements of state and federal laws
and regulatory agencies shall have been fully complied with to the satisfaction
of the Company and its counsel, and (ii) if requested to do so by the Company,
the person exercising the rights under the Grant shall (i) give written
assurances as to knowledge and experience of such person (or a representative
employed by such person) in financial and business matters and the ability of
such person (or representative) to evaluate the merits and risks of exercising
the Option, and (ii) execute and deliver to the Company a letter of investment
intent and/or such other form related to applicable exemptions from
registration, all in such form and substance as the Company may require. If
shares are issued upon exercise of any rights under a Grant without registration
under the Securities Act, subsequent registration of such shares shall relieve
the purchaser thereof of any investment restrictions or representations made
upon the exercise of such rights.
8. Amendment, Modification, Suspension or Discontinuance of the Plan. The Board
may, insofar as permitted by law, from time to time, with respect to any shares
at the time not subject to outstanding Grants, suspend or terminate the Plan or
revise or amend it in any respect whatsoever, except that without the approval
of the shareholders of the Company, no such revision or amendment shall (i)
increase the number of shares subject to the Plan, (ii) decrease the price at
which Grants may be granted, (iii) materially increase the benefits to
Participants, or (iv) change the class of persons eligible to receive Grants
under the Plan; provided, however, no such action shall alter or impair the
rights and obligations under any Option, or Stock Award, or Restricted Stock
Purchase Offer outstanding as of the date thereof without the written consent of
the Participant thereunder. No Grant may be issued while the Plan is suspended
or after it is terminated, but the rights and obligations under any Grant issued
while the Plan is in effect shall not be impaired by suspension or termination
of the Plan.
In the event of any change in the outstanding Stock by reason of a
stock split, stock dividend, combination or reclassification of shares,
recapitalization, merger, or similar event, the Board or the Committee may
adjust proportionally (a) the number of shares of Stock (i) reserved under the
Plan, (ii) available for Stock Incentive Options and Nonstatutory Options and
(iii) covered by outstanding Stock Awards or Restricted Stock Purchase Offers;
(b) the Stock prices related to outstanding Grants; and (c) the appropriate Fair
Market Value and other price determinations for such Grants. In the event of any
other change affecting the Stock or any distribution (other than normal cash
dividends) to holders of Stock, such adjustments as may be deemed equitable by
the Board or the Committee, including adjustments to avoid fractional shares,
shall be made to give proper effect to such event. In the event of a corporate
merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Board or the Committee shall be authorized to
issue or assume stock options, whether or not in a transaction to which Section
424(a) of the Code applies, and other Grants by means of substitution of new
Grant Agreements for previously issued Grants or an assumption of previously
issued Grants.
9. Tax Withholding. The Company shall have the right to deduct applicable taxes
from any Grant payment and withhold, at the time of delivery or exercise of
Options, Stock Awards or Restricted Stock Purchase Offers or vesting of shares
under such Grants, an appropriate number of shares for payment of taxes required
by law or to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for withholding of such taxes. If Stock is
used to satisfy tax withholding, such stock shall be valued based on the Fair
Market Value when the tax withholding is required to be made.
10. Availability of Information. During the term of the Plan and any additional
period during which a Grant granted pursuant to the Plan shall be exercisable,
the Company shall make available, not later than one hundred and twenty (120)
days following the close of each of its fiscal years, such financial and other
information regarding the Company as is required by the bylaws of the Company
and applicable law to be furnished in an annual report to the shareholders of
the Company.
11. Notice. Any written notice to the Company required by any of the provisions
of the Plan shall be addressed to the chief personnel officer or to the chief
executive officer of the Company, and shall become effective when it is received
by the office of the chief personnel officer or the chief executive officer.
12. Indemnification of Board. In addition to such other rights or
indemnifications as they may have as directors or otherwise, and to the extent
allowed by applicable law, the members of the Board and the Committee shall be
indemnified by the Company against the reasonable expenses, including attorneys'
fees, actually and necessarily incurred in connection with the defense of any
claim, action, suit or proceeding, or in connection with any appeal thereof, to
which they or any of them may be a party by reason of any action taken, or
failure to act, under or in connection with the Plan or any Grant granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Company) or paid by them in satisfaction of a judgment in any such claim,
action, suit or proceeding, except in any case in relation to matters as to
which it shall be adjudged in such claim, action, suit or proceeding that such
Board or Committee member is liable for negligence or misconduct in the
performance of his or her duties; provided that within sixty (60) days after
institution of any such action, suit or Board proceeding the member involved
shall offer the Company, in writing, the opportunity, at its own expense, to
handle and defend the same.
13. Governing Law. The Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by the Code or the
securities laws of the United States, shall be governed by the law of the State
of Nevada and construed accordingly.
14. Effective and Termination Dates. The Plan shall become effective on the date
it is approved by the board. The Plan shall terminate ten years later, subject
to earlier termination by the Board pursuant to Section 8.
The foregoing 2005 Stock Incentive Plan (consisting of 14 pages,
including this page) was duly adopted and approved by the Board of Directors on
July 29, 2005.
ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: /s/ Dean Weber
-------------------------------
Dean Weber
Its: Chief Executive Officer
EXHIBIT A
ONE VOICE TECHNOLOGIES, INC.
STOCK INCENTIVE OPTION AGREEMENT
================================================================================
THIS STOCK INCENTIVE OPTION AGREEMENT ("AGREEMENT") is made and entered
into as of the date set forth below, by and between ONE VOICE TECHNOLOGIES,
INC., a Nevada corporation (the "COMPANY"), and the employee of the Company
named in Section 1(b). ("OPTIONEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. OPTION INFORMATION.
(a) Date of Option: __________________________
(b) Optionee: __________________________
(c) Number of Shares: __________________________
(d) Exercise Price: __________________________
2. ACKNOWLEDGEMENTS.
(a) Optionee is an employee of the Company.
(b) The Board of Directors (the "BOARD" which term shall
include an authorized committee of the Board of Directors) and
shareholders of the Company have heretofore adopted a 2005 Stock
Incentive Plan (the "PLAN"), pursuant to which this Option is being
granted.
(c) The Board has authorized the granting to Optionee of an
Stock Incentive option ("Option") as defined in Section 422 of the
Internal Revenue Code of 1986, as amended, (the "CODE") to purchase
shares of common stock of the Company ("STOCK") upon the terms and
conditions hereinafter stated and pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT") provided by Section 4(2) thereunder.
3. SHARES; PRICE. The Company hereby grants to Optionee the right to
purchase, upon and subject to the terms and conditions herein stated, the number
of shares of Stock set forth in Section 1(c) above (the "SHARES") for cash (or
other consideration as is authorized under the Plan and acceptable to the Board,
in their sole and absolute discretion) at the price per Share set forth in
Section 1(d) above (the "EXERCISE PRICE"), such price being not less than the
fair market value per share of the Shares covered by this Option as of the date
hereof (unless Optionee is the owner of Stock possessing ten percent or more of
the total voting power or value of all outstanding Stock of the Company, in
which case the Exercise Price shall be no less than 110% of the fair market
value of such Stock).
4. TERM OF OPTION; CONTINUATION OF EMPLOYMENT. This Option shall
expire, and all rights hereunder to purchase the Shares shall terminate five (5)
from the date hereof. This Option shall earlier terminate subject to Sections 7
and 8 hereof upon, and as of the date of, the termination of Optionee's
employment if such termination occurs prior to the end of such five (5) year
period. Nothing contained herein shall confer upon Optionee the right to the
continuation of his or her employment by the Company or to interfere with the
right of the Company to terminate such employment or to increase or decrease the
compensation of Optionee from the rate in existence at the date hereof.
5. VESTING OF OPTION. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the term of Optionee's
employment in four (4) equal annual installments of twenty-five percent (25%) of
the Shares covered by this Option, the first installment to be exercisable on
the six (6) month anniversary of the date of this Option (the "Initial Vesting
Date"), with an additional twenty-five percent (25%) of such Shares becoming
exercisable on each of the three (3) successive twelve (12) month periods
following the Initial Vesting Date. The installments shall be cumulative (i.e.,
this option may be exercised, as to any or all Shares covered by an installment,
at any time or times after an installment becomes exercisable and until
expiration or termination of this option).
6. EXERCISE. This Option shall be exercised by delivery to the Company
of (a) written notice of exercise stating the number of Shares being purchased
(in whole shares only) and such other information set forth on the form of
Notice of Exercise attached hereto as Appendix A, (b) a check or cash in the
amount of the Exercise Price of the Shares covered by the notice (or such other
consideration as has been approved by the Board of Directors consistent with the
Plan) and (c) a written investment representation as provided for in Section 13
hereof. This Option shall not be assignable or transferable, except by will or
by the laws of descent and distribution, and shall be exercisable only by
Optionee during his or her lifetime, except as provided in Section 8 hereof.
7. TERMINATION OF EMPLOYMENT. If Optionee shall cease to be employed by
the Company for any reason, whether voluntarily or involuntarily, other than by
his or her death, Optionee (or if the Optionee shall die after such termination,
but prior to such exercise date, Optionee's personal representative or the
person entitled to succeed to the Option) shall have the right at any time
within three (3) months following such termination of employment or the
remaining term of this Option, whichever is the lesser, to exercise in whole or
in part this Option to the extent, but only to the extent, that this Option was
exercisable as of the date of termination of employment and had not previously
been exercised; provided, however: (i) if Optionee is permanently disabled
(within the meaning of Section 22(e)(3) of the Code) at the time of termination,
the foregoing three (3) month period shall be extended to six (6) months; or
(ii) if Optionee is terminated "FOR cause" as that term is defined under Title
53 of the Nevada Revised Statutes and case law related thereto, or by the terms
of the Plan or this Option Agreement or by any employment agreement between the
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Optionee and the Company, this Option shall automatically terminate as to all
Shares covered by this Option not exercised prior to termination. Unless earlier
terminated, all rights under this Option shall terminate in any event on the
expiration date of this Option as defined in Section 4 hereof.
8. DEATH OF OPTIONEE. If the Optionee shall die while in the employ of
the Company, Optionee's personal representative or the person entitled to
Optionee's rights hereunder may at any time within six (6) months after the date
of Optionee's death, or during the remaining term of this Option, whichever is
the lesser, exercise this Option and purchase Shares to the extent, but only to
the extent, that Optionee could have exercised this Option as of the date of
Optionee's death; provided, in any case, that this Option may be so exercised
only to the extent that this Option has not previously been exercised by
Optionee.
9. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Shares covered by any installment of this Option
until the effective date of issuance of Shares following exercise of this
Option, and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such stock certificate or certificates are
issued except as provided in Section 10 hereof.
10. RECAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of Shares covered by this Option, and
the Exercise Price thereof, shall be proportionately adjusted for any increase
or decrease in the number of issued shares resulting from a subdivision or
consolidation of shares or the payment of a stock dividend, or any other
increase or decrease in the number of such shares effected without receipt of
consideration by the Company; provided however that the conversion of any
convertible securities of the Company shall not be deemed having been "EFFECTED
WITHOUT RECEIPT OF CONSIDERATION BY THE COMPANY".
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "REORGANIZATION"), unless otherwise provided by the Board, this
Option shall terminate immediately prior to such date as is determined by the
Board, which date shall be no later than the consummation of such
Reorganization. In such event, if the entity which shall be the surviving entity
does not tender to Optionee an offer, for which it has no obligation to do so,
to substitute for any unexercised Option a stock option or capital stock of such
surviving of such surviving entity, as applicable, which on an equitable basis
shall provide the Optionee with substantially the same economic benefit as such
unexercised Option, then the Board may grant to such Optionee, in its sole and
absolute discretion and without obligation, the right for a period commencing
thirty (30) days prior to and ending immediately prior to the date determined by
the Board pursuant hereto for termination of the Option or during the remaining
term of the Option, whichever is the lesser, to exercise any unexpired Option or
Options without regard to the installment provisions of Section 5; provided,
however, that such exercise shall be subject to the consummation of such
Reorganization.
Subject to any required action by the shareholders of the Company, if
the Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the installment provisions of
Section 5 shall continue to apply.
In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized Stock without
par value into the same number of shares of Stock with a par value, the shares
resulting from any such change shall be deemed to be the Shares within the
meaning of this Option.
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To the extent that the foregoing adjustments relate to shares or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
hereinbefore expressly provided, Optionee shall have no rights by reason of any
subdivision or consolidation of shares of Stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class, and the number and price of Shares subject to this Option
shall not be affected by, and no adjustments shall be made by reason of, any
dissolution, liquidation, merger, consolidation or sale of assets or capital
stock, or any issue by the Company of shares of stock of any class or securities
convertible into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power
of the Company to make adjustments, reclassifications, reorganizations or
changes in its capital or business structure or to merge, consolidate, dissolve
or liquidate or to sell or transfer all or any part of its business or assets.
11. ADDITIONAL CONSIDERATION. Should the Internal Revenue Service
determine that the Exercise Price established by the Board as the fair market
value per Share is less than the fair market value per Share as of the date of
Option grant, Optionee hereby agrees to tender such additional consideration, or
agrees to tender upon exercise of all or a portion of this Option, such fair
market value per Share as is determined by the Internal Revenue Service.
12. MODIFICATIONS, EXTENSION AND RENEWAL OF OPTIONS. The Board or
Committee, as described in the Plan, may modify, extend or renew this Option or
accept the surrender thereof (to the extent not theretofore exercised) and
authorize the granting of a new option in substitution therefore (to the extent
not theretofore exercised), subject at all times to the Plan, and Section 422 of
the Code. Notwithstanding the foregoing provisions of this Section 12, no
modification shall, without the consent of the Optionee, alter to the Optionee's
detriment or impair any rights of Optionee hereunder.
13. INVESTMENT INTENT; RESTRICTIONS ON TRANSFER.
(a) Optionee represents and agrees that if Optionee exercises
this Option in whole or in part, Optionee will in each case acquire the
Shares upon such exercise for the purpose of investment and not with a
view to, or for resale in connection with, any distribution thereof;
and that upon such exercise of this Option in whole or in part,
Optionee (or any person or persons entitled to exercise this Option
under the provisions of Sections 7 and 8 hereof) shall furnish to the
Company a written statement to such effect, satisfactory to the Company
in form and substance. If the Shares represented by this Option are
registered under the Securities Act, either before or after the
A-4
exercise of this Option in whole or in part, the Optionee shall be
relieved of the foregoing investment representation and agreement and
shall not be required to furnish the Company with the foregoing written
statement.
(b) Optionee further represents that Optionee has had access
to the financial statements or books and records of the Company, has
had the opportunity to ask questions of the Company concerning its
business, operations and financial condition, and to obtain additional
information reasonably necessary to verify the accuracy of such
information.
(c) Unless and until the Shares represented by this Option are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution
therefor and any certificate for any securities issued pursuant to any
stock split, share reclassification, stock dividend or other similar
capital event shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER
THE SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE
APPLICABLE OR SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES
NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR
ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO
EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN STOCK INCENTIVE OPTION AGREEMENT DATED ____________
BETWEEN THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF
THESE SHARES WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER
CERTAIN CONDITIONS.
such other legend or legends as the Company and its counsel deem necessary or
appropriate. Appropriate stop transfer instructions with respect to the Shares
have been placed with the Company's transfer agent.
14. EFFECTS OF EARLY DISPOSITION. Optionee understands that if an
Optionee disposes of shares acquired hereunder within two (2) years after the
date of this Option or within one (1) year after the date of issuance of such
shares to Optionee, such Optionee will be treated for income tax purposes as
having received ordinary income at the time of such disposition of an amount
generally measured by the difference between the purchase price and the fair
market value of such stock on the date of exercise, subject to adjustment for
any tax previously paid, in addition to any tax on the difference between the
sales price and Optionee's adjusted cost basis in such shares. The foregoing
amount may be measured differently if Optionee is an officer, director or ten
percent holder of the Company. Optionee agrees to notify the Company within ten
(10) working days of any such disposition.
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15. STAND-OFF AGREEMENT. Optionee agrees that in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Optionee shall not sell, short any sale of, loan,
grant an option for, or otherwise dispose of any of the Shares (other than
Shares included in the offering) without the prior written consent of the
Company or such managing underwriter, as applicable, for a period of at least
one year following the effective date of registration of such offering.
16. RESTRICTION UPON TRANSFER. The Shares may not be sold, transferred
or otherwise disposed of and shall not be pledged or otherwise hypothecated by
the Optionee except as hereinafter provided.
(a) REPURCHASE RIGHT ON TERMINATION OTHER THAN FOR CAUSE. For
the purposes of this Section, a "REPURCHASE EVENT" shall mean an
occurrence of one of (i) termination of Optionee's employment by the
Company, voluntary or involuntary and with or without cause; (ii)
retirement or death of Optionee; (iii) bankruptcy of Optionee, which
shall be deemed to have occurred as of the date on which a voluntary or
involuntary petition in bankruptcy is filed with a court of competent
jurisdiction; (iv) dissolution of the marriage of Optionee, to the
extent that any of the Shares are allocated as the sole and separate
property of Optionee's spouse pursuant thereto (in which case this
Section shall only apply to the Shares so affected); or (v) any
attempted transfer by the Optionee of Shares, or any interest therein,
in violation of this Agreement. Upon the occurrence of a Repurchase
Event, the Company shall have the right (but not an obligation) to
repurchase all or any portion of the Shares of Optionee at a price
equal to the fair value of the Shares as of the date of the Repurchase
Event.
(b) REPURCHASE RIGHT ON TERMINATION FOR CAUSE. In the event
Optionee's employment is terminated by the Company "FOR CAUSE", then
the Company shall have the right (but not an obligation) to repurchase
Shares of Optionee at a price equal to the Exercise Price. Such right
of the Company to repurchase Shares shall apply to 100% of the Shares
for one (1) year from the date of this Agreement; and shall thereafter
lapse at the rate of twenty percent (20%) of the Shares on each
anniversary of the date of this Agreement. In addition, the Company
shall have the right, in the sole discretion of the Board and without
obligation, to repurchase upon termination for cause all or any portion
of the Shares of Optionee, at a price equal to the fair value of the
Shares as of the date of termination, which right is not subject to the
foregoing lapsing of rights. In the event the Company elects to
repurchase the Shares, the stock certificates representing the same
shall forthwith be returned to the Company for cancellation.
(c) EXERCISE OF REPURCHASE RIGHT. Any Repurchase Right under
Paragraphs 16(a) or 16(b) shall be exercised by giving notice of
exercise as provided herein to Optionee or the estate of Optionee, as
applicable. Such right shall be exercised, and the repurchase price
thereunder shall be paid, by the Company within a ninety (90) day
period beginning on the date of notice to the Company of the occurrence
of such Repurchase Event (except in the case of termination of
employment or retirement, where such option period shall begin upon the
occurrence of the Repurchase Event). Such repurchase price shall be
payable only in the form of cash (including a check drafted on
immediately available funds) or cancellation of purchase money
A-6
indebtedness of the Optionee for the Shares. If the Company can not
purchase all such Shares because it is unable to meet the financial
tests set forth in Nevada and/or Nevada corporation law, the Company
shall have the right to purchase as many Shares as it is permitted to
purchase under such sections. Any Shares not purchased by the Company
hereunder shall no longer be subject to the provisions of this Section
16.
(d) RIGHT OF FIRST REFUSAL. In the event Optionee desires to
transfer any Shares during his or her lifetime, Optionee shall first
offer to sell such Shares to the Company. Optionee shall deliver to the
Company written notice of the intended sale, such notice to specify the
number of Shares to be sold, the proposed purchase price and terms of
payment, and grant the Company an option for a period of thirty days
following receipt of such notice to purchase the offered Shares upon
the same terms and conditions. To exercise such option, the Company
shall give notice of that fact to Optionee within the thirty (30) day
notice period and agree to pay the purchase price in the manner
provided in the notice. If the Company does not purchase all of the
Shares so offered during foregoing option period, Optionee shall be
under no obligation to sell any of the offered Shares to the Company,
but may dispose of such Shares in any lawful manner during a period of
one hundred and eighty (180) days following the end of such notice
period, except that Optionee shall not sell any such Shares to any
other person at a lower price or upon more favorable terms than those
offered to the Company.
(e) ACCEPTANCE OF RESTRICTIONS. Acceptance of the Shares shall
constitute the Optionee's agreement to such restrictions and the
legending of his certificates with respect thereto. Notwithstanding
such restrictions, however, so long as the Optionee is the holder of
the Shares, or any portion thereof, he shall be entitled to receive all
dividends declared on and to vote the Shares and to all other rights of
a shareholder with respect thereto.
(f) PERMITTED TRANSFERS. Notwithstanding any provisions in
this Section 16 to the contrary, the Optionee may transfer Shares
subject to this Agreement to his or her parents, spouse, children, or
grandchildren, or a trust for the benefit of the Optionee or any such
transferee(s); provided, that such permitted transferee(s) shall hold
the Shares subject to all the provisions of this Agreement (all
references to the Optionee herein shall in such cases refer mutatis
mutandis to the permitted transferee, except in the case of clause (iv)
of Section 16(a) wherein the permitted transfer shall be deemed to be
rescinded); and provided further, that notwithstanding any other
provisions in this Agreement, a permitted transferee may not, in turn,
make permitted transfers without the written consent of the Optionee
and the Company.
(g) RELEASE OF RESTRICTIONS ON SHARES. All other restrictions
under this Section 16 shall terminate five (5) years following the date
of this Agreement, or when the Company's securities are publicly
traded, whichever occurs earlier.
A-7
17. NOTICES. Any notice required to be given pursuant to this Option or
the Plan shall be in writing and shall be deemed to be delivered upon receipt
or, in the case of notices by the Company, five (5) days after deposit in the
U.S. mail, postage prepaid, addressed to Optionee at the address last provided
to the Company by Optionee for his or her employee records.
18. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Option is made
pursuant to the Plan and shall be interpreted to comply therewith. A copy of
such Plan is available to Optionee, at no charge, at the principal office of the
Company. Any provision of this Option inconsistent with the Plan shall be
considered void and replaced with the applicable provision of the Plan. This
Option has been granted, executed and delivered in the State of Nevada, and the
interpretation and enforcement shall be governed by the laws thereof and subject
to the exclusive jurisdiction of the courts therein.
IN WITNESS WHEREOF, the parties hereto have executed this Option as of
the date first above written.
COMPANY: ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: __________________________
Name: __________________________
Title: __________________________
OPTIONEE: By: __________________________
(SIGNATURE)
Name: __________________________
(ONE OF THE FOLLOWING, AS APPROPRIATE, SHALL BE SIGNED)
I certify that as of the date hereof By his or her signature, the spouse
I am unmarried of Optionee hereby agrees to be
bound by the provisions of the
foregoing STOCK INCENTIVE OPTION
AGREEMENT
- ------------------------------------ -----------------------------------
Optionee Spouse of Optionee
A-8
Appendix A
NOTICE OF EXERCISE
ONE VOICE TECHNOLOGIES, INC.
6333 GREENWICH DRIVE, SUITE 240
SAN DIEGO, CALIFORNIA 92122
Re: Stock Incentive Option
Notice is hereby given pursuant to Section 6 of my Stock Incentive
Option Agreement that I elect to purchase the number of shares set forth below
at the exercise price set forth in my option agreement:
Stock Incentive Option Agreement dated: ____________
Number of shares being purchased: ____________
Exercise Price: $____________
A check in the amount of the aggregate price of the shares being
purchased is attached.
I hereby confirm that such shares are being acquired by me for my own
account for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof. I will not sell or dispose of my
Shares in violation of the Securities Act of 1933, as amended, or any applicable
federal or state securities laws. Further, I understand that the exemption from
taxable income at the time of exercise is dependent upon my holding such stock
for a period of at least one year from the date of exercise and two years from
the date of grant of the Option.
I understand that the certificate representing the Option Shares will
bear a restrictive legend within the contemplation of the Securities Act and as
required by such other state or federal law or regulation applicable to the
issuance or delivery of the Option Shares.
I agree to provide to the Company such additional documents or
information as may be required pursuant to the Company's 2005 Stock Incentive
Plan.
By: _________________________________
(SIGNATURE)
Name: _______________________________
Appendix A
EXHIBIT B-1
ONE VOICE TECHNOLOGIES, INC.
EMPLOYEE NONSTATUTORY STOCK OPTION AGREEMENT
================================================================================
THIS EMPLOYEE NONSTATUTORY STOCK OPTION AGREEMENT ("AGREEMENT") is made
and entered into as of the date set forth below, by and between ONE VOICE
TECHNOLOGIES, INC., a Nevada corporation (the "COMPANY"), and the following
employee of the Company ("OPTIONEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. Option Information.
-------------------
(a) Date of Option: _______________________
(b) Optionee: _______________________
(c) Number of Shares: _______________________
(d) Exercise Price: _______________________
2. Acknowledgements.
-----------------
(a) Optionee is an employee of the Company.
(b) The Board of Directors (the "BOARD" which term shall include an
authorized committee of the Board of Directors) and shareholders of the
Company have heretofore adopted a 2005 Stock Incentive Plan (the "PLAN"),
pursuant to which this Option is being granted; and
(c) The Board has authorized the granting to Optionee of a
nonstatutory stock option ("OPTION") to purchase shares of common stock of
the Company ("STOCK") upon the terms and conditions hereinafter stated and
pursuant to an exemption from registration under the Securities Act of
1933, as amended (the "SECURITIES ACT") provided by Section 4(2)
thereunder.
3. SHARES; PRICE. Company hereby grants to Optionee the right to purchase,
upon and subject to the terms and conditions herein stated, the number of shares
of Stock set forth in Section 1(c) above (the "SHARES") for cash (or other
consideration as is authorized under the Plan and acceptable to the Board of
Directors of the Company, in their sole and absolute discretion) at the price
per Share set forth in Section 1(d) above (the "EXERCISE PRICE"), such price
being not less than eighty-five percent (85%) of the fair market value per share
of the Shares covered by this Option as of the date hereof.
4. TERM OF OPTION; CONTINUATION OF SERVICE. This Option shall expire, and
all rights hereunder to purchase the Shares shall terminate, five (5) years from
the date hereof. This Option shall earlier terminate subject to Sections 7 and 8
hereof upon, and as of the date of, the termination of Optionee's employment if
such termination occurs prior to the end of such five (5) year period. Nothing
contained herein shall confer upon Optionee the right to the continuation of his
or her employment by the Company or to interfere with the right of the Company
to terminate such employment or to increase or decrease the compensation of
Optionee from the rate in existence at the date hereof.
B-1-1
5. VESTING OF OPTION. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the term of Optionee's
employment in five (5) equal annual installments of twenty percent (20%) of the
Shares covered by this Option, the first installment to be exercisable on the
first anniversary of the date of this Option, with an additional twenty percent
(20%) of such Shares becoming exercisable on each of the four (4) successive
anniversary dates. The installments shall be cumulative (i.e., this option may
be exercised, as to any or all shares covered by an installment, at any time or
times after an installment becomes exercisable and until expiration or
termination of this option).
6. EXERCISE. This Option shall be exercised by delivery to the Company of
(a) written notice of exercise stating the number of Shares being purchased (in
whole shares only) and such other information set forth on the form of Notice of
Exercise attached hereto as Appendix A, (b) a check or cash in the amount of the
Exercise Price of the Shares covered by the notice (or such other consideration
as has been approved by the Board of Directors consistent with the Plan) and (c)
a written investment representation as provided for in Section 13 hereof. This
Option shall not be assignable or transferable, except by will or by the laws of
descent and distribution, and shall be exercisable only by Optionee during his
or her lifetime, except as provided in Section 8 hereof.
7. TERMINATION OF EMPLOYMENT. If Optionee shall cease to be employed by
the Company for any reason, whether voluntarily or involuntarily, other than by
his or her death, Optionee (or if the Optionee shall die after such termination,
but prior to such exercise date, Optionee's personal representative or the
person entitled to succeed to the Option) shall have the right at any time
within three (3) months following such termination of employment or the
remaining term of this Option, whichever is the lesser, to exercise in whole or
in part this Option to the extent, but only to the extent, that this Option was
exercisable as of the date of termination of employment and had not previously
been exercised; provided, however: (i) if Optionee is permanently disabled
(within the meaning of Section 22(e)(3) of the Code) at the time of termination,
the foregoing three (3) month period shall be extended to six (6) months; or
(ii) if Optionee is terminated "for cause" as that term is defined under Title
53 of the Nevada Revised Statutes and case law related thereto, or by the terms
of the Plan or this Option Agreement or by any employment agreement between the
Optionee and the Company, this Option shall automatically terminate as to all
Shares covered by this Option not exercised prior to termination.
Unless earlier terminated, all rights under this Option shall terminate in
any event on the expiration date of this Option as defined in Section 4 hereof.
8. DEATH OF OPTIONEE. If the Optionee shall die while in the employ of the
Company, Optionee's personal representative or the person entitled to Optionee's
rights hereunder may at any time within six (6) months after the date of
Optionee's death, or during the remaining term of this Option, whichever is the
lesser, exercise this Option and purchase Shares to the extent, but only to the
extent, that Optionee could have exercised this Option as of the date of
Optionee's death; provided, in any case, that this Option may be so exercised
only to the extent that this Option has not previously been exercised by
Optionee.
B-1-2
9. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Shares covered by any installment of this Option
until the effective date of issuance of the Shares following exercise of this
Option, and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such stock certificate or certificates are
issued except as provided in Section 10 hereof.
10. RECAPITALIZATION. Subject to any required action by the shareholders
of the Company, the number of Shares covered by this Option, and the Exercise
Price thereof, shall be proportionately adjusted for any increase or decrease in
the number of issued shares resulting from a subdivision or consolidation of
shares or the payment of a stock dividend, or any other increase or decrease in
the number of such shares effected without receipt of consideration by the
Company; provided however that the conversion of any convertible securities of
the Company shall not be deemed having been "effected without receipt of
consideration by the Company".
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "REORGANIZATION"), unless otherwise provided by the Board, this
Option shall terminate immediately prior to such date as is determined by the
Board, which date shall be no later than the consummation of such
Reorganization. In such event, if the entity which shall be the surviving entity
does not tender to Optionee an offer, for which it has no obligation to do so,
to substitute for any unexercised Option a stock option or capital stock of such
surviving of such surviving entity, as applicable, which on an equitable basis
shall provide the Optionee with substantially the same economic benefit as such
unexercised Option, then the Board may grant to such Optionee, in its sole and
absolute discretion and without obligation, the right for a period commencing
thirty (30) days prior to and ending immediately prior to the date determined by
the Board pursuant hereto for termination of the Option or during the remaining
term of the Option, whichever is the lesser, to exercise any unexpired Option or
Options without regard to the installment provisions of Section 5; provided,
however, that such exercise shall be subject to the consummation of such
Reorganization.
Subject to any required action by the shareholders of the Company, if the
Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the installment provisions of
Section 5 shall continue to apply.
In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized Stock without
par value into the same number of shares of Stock with a par value, the shares
resulting from any such change shall be deemed to be the Shares within the
meaning of this Option.
B-1-3
To the extent that the foregoing adjustments relate to shares or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
hereinbefore expressly provided, Optionee shall have no rights by reason of any
subdivision or consolidation of shares of Stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class, and the number and price of Shares subject to this Option
shall not be affected by, and no adjustments shall be made by reason of, any
dissolution, liquidation, merger, consolidation or sale of assets or capital
stock, or any issue by the Company of shares of stock of any class or securities
convertible into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
in its capital or business structure or to merge, consolidate, dissolve or
liquidate or to sell or transfer all or any part of its business or assets.
11. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon
exercise of this Option, Optionee will recognize income, for Federal and state
income tax purposes, in an amount equal to the amount by which the fair market
value of the Shares, determined as of the date of exercise, exceeds the Exercise
Price. The acceptance of the Shares by Optionee shall constitute an agreement by
Optionee to report such income in accordance with then applicable law and to
cooperate with Company in establishing the amount of such income and
corresponding deduction to the Company for its income tax purposes. Withholding
for federal or state income and employment tax purposes will be made, if and as
required by law, from Optionee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the Company
may require Optionee to make a cash payment to cover such liability as a
condition of the exercise of this Option.
12. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Board or
Committee, as described in the Plan, may modify, extend or renew this Option or
accept the surrender thereof (to the extent not theretofore exercised) and
authorize the granting of a new option in substitution therefore (to the extent
not theretofore exercised), subject at all times to the Plan, the Code and the
Nevada Securities Rules. Notwithstanding the foregoing provisions of this
Section 12, no modification shall, without the consent of the Optionee, alter to
the Optionee's detriment or impair any rights of Optionee hereunder.
13. INVESTMENT INTENT; RESTRICTIONS ON TRANSFER.
(a) Optionee represents and agrees that if Optionee exercises this
Option in whole or in part, Optionee will in each case acquire the Shares
upon such exercise for the purpose of investment and not with a view to,
or for resale in connection with, any distribution thereof; and that upon
such exercise of this Option in whole or in part, Optionee (or any person
or persons entitled to exercise this Option under the provisions of
Sections 7 and 8 hereof) shall furnish to the Company a written statement
to such effect, satisfactory to the Company in form and substance. If the
Shares represented by this Option are registered under the Securities Act,
either before or after the exercise of this Option in whole or in part,
the Optionee shall be relieved of the foregoing investment representation
and agreement and shall not be required to furnish the Company with the
foregoing written statement.
B-1-4
(b) Optionee further represents that Optionee has had access to the
financial statements or books and records of the Company, has had the
opportunity to ask questions of the Company concerning its business,
operations and financial condition, and to obtain additional information
reasonably necessary to verify the accuracy of such information
(c) Unless and until the Shares represented by this Option are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution therefor
and any certificate for any securities issued pursuant to any stock split,
share reclassification, stock dividend or other similar capital event
shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE APPLICABLE OR
SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST
THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN NONSTATUTORY STOCK OPTION AGREEMENT DATED ____________
BETWEEN THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE
SHARES WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN
CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with respect to
the Shares have been placed with the Company's transfer agent.
14. STAND-OFF AGREEMENT. Optionee agrees that, in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Optionee shall not sell, short any sale of, loan,
grant an option for, or otherwise dispose of any of the Shares (other than
Shares included in the offering) without the prior written consent of the
Company or such managing underwriter, as applicable, for a period of at least
one year following the effective date of registration of such offering.
B-1-5
15. RESTRICTION UPON TRANSFER. The Shares may not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated by the
Optionee except as hereinafter provided.
(a) Repurchase Right on Termination Other Than for Cause. For the
purposes of this Section, a "REPURCHASE EVENT" shall mean an occurrence of
one of (i) termination of Optionee's employment by the Company, voluntary
or involuntary and with or without cause; (ii) retirement or death of
Optionee; (iii) bankruptcy of Optionee, which shall be deemed to have
occurred as of the date on which a voluntary or involuntary petition in
bankruptcy is filed with a court of competent jurisdiction; (iv)
dissolution of the marriage of Optionee, to the extent that any of the
Shares are allocated as the sole and separate property of Optionee's
spouse pursuant thereto (in which case, this Section shall only apply to
the Shares so affected); or (v) any attempted transfer by the Optionee of
Shares, or any interest therein, in violation of this Agreement. Upon the
occurrence of a Repurchase Event, the Company shall have the right (but
not an obligation) to repurchase all or any portion of the Shares of
Optionee at a price equal to the fair value of the Shares as of the date
of the Repurchase Event.
(b) Repurchase Right on Termination for Cause. In the event
Optionee's employment is terminated by the Company "for cause", then the
Company shall have the right (but not an obligation) to repurchase Shares
of Optionee at a price equal to the Exercise Price. Such right of the
Company to repurchase Shares shall apply to 100% of the Shares for one (1)
year from the date of this Agreement; and shall thereafter lapse at the
rate of twenty percent (20%) of the Shares on each anniversary of the date
of this Agreement. In addition, the Company shall have the right, in the
sole discretion of the Board and without obligation, to repurchase upon
termination for cause all or any portion of the Shares of Optionee, at a
price equal to the fair value of the Shares as of the date of termination,
which right is not subject to the foregoing lapsing of rights. In the
event the Company elects to repurchase the Shares, the stock certificates
representing the same shall forthwith be returned to the Company for
cancellation.
(c) Exercise of Repurchase Right. Any Repurchase Right under
Paragraphs 15(a) or 15(b) shall be exercised by giving notice of exercise
as provided herein to Optionee or the estate of Optionee, as applicable.
Such right shall be exercised, and the repurchase price thereunder shall
be paid, by the Company within a ninety (90) day period beginning on the
date of notice to the Company of the occurrence of such Repurchase Event
(except in the case of termination of employment or retirement, where such
option period shall begin upon the occurrence of the Repurchase Event).
Such repurchase price shall be payable only in the form of cash (including
a check drafted on immediately available funds) or cancellation of
purchase money indebtedness of the Optionee for the Shares. If the Company
can not purchase all such Shares because it is unable to meet the
financial tests set forth in the Nevada and/or Nevada corporation law, the
Company shall have the right to purchase as many Shares as it is permitted
to purchase under such sections. Any Shares not purchased by the Company
hereunder shall no longer be subject to the provisions of this Section 15.
B-1-6
(d) Right of First Refusal. In the event Optionee desires to
transfer any Shares during his or her lifetime, Optionee shall first offer
to sell such Shares to the Company. Optionee shall deliver to the Company
written notice of the intended sale, such notice to specify the number of
Shares to be sold, the proposed purchase price and terms of payment, and
grant the Company an option for a period of thirty days following receipt
of such notice to purchase the offered Shares upon the same terms and
conditions. To exercise such option, the Company shall give notice of that
fact to Optionee within the thirty (30) day notice period and agree to pay
the purchase price in the manner provided in the notice. If the Company
does not purchase all of the Shares so offered during foregoing option
period, Optionee shall be under no obligation to sell any of the offered
Shares to the Company, but may dispose of such Shares in any lawful manner
during a period of one hundred and eighty (180) days following the end of
such notice period, except that Optionee shall not sell any such Shares to
any other person at a lower price or upon more favorable terms than those
offered to the Company.
(e) Acceptance of Restrictions. Acceptance of the Shares shall
constitute the Optionee's agreement to such restrictions and the legending
of his certificates with respect thereto. Notwithstanding such
restrictions, however, so long as the Optionee is the holder of the
Shares, or any portion thereof, he shall be entitled to receive all
dividends declared on and to vote the Shares and to all other rights of a
shareholder with respect thereto.
(f) Permitted Transfers. Notwithstanding any provisions in this
Section 15 to the contrary, the Optionee may transfer Shares subject to
this Agreement to his or her parents, spouse, children, or grandchildren,
or a trust for the benefit of the Optionee or any such transferee(s);
provided, that such permitted transferee(s) shall hold the Shares subject
to all the provisions of this Agreement (all references to the Optionee
herein shall in such cases refer mutatis mutandis to the permitted
transferee, except in the case of clause (iv) of Section 15(a) wherein the
permitted transfer shall be deemed to be rescinded); and provided further,
that notwithstanding any other provisions in this Agreement, a permitted
transferee may not, in turn, make permitted transfers without the written
consent of the Optionee and the Company.
(g) Release of Restrictions on Shares. All other restrictions under
this Section 15 shall terminate five (5) years following the date of this
Agreement, or when the Company's securities are publicly traded, whichever
occurs earlier.
B-1-7
16. NOTICES. Any notice required to be given pursuant to this Option or
the Plan shall be in writing and shall be deemed to be delivered upon receipt
or, in the case of notices by the Company, five (5) days after deposit in the
U.S. mail, postage prepaid, addressed to Optionee at the address last provided
by Optionee for his or her employee records.
17. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Option is made
pursuant to the Plan and shall be interpreted to comply therewith. A copy of
such Plan is available to Optionee, at no charge, at the principal office of the
Company. Any provision of this Option inconsistent with the Plan shall be
considered void and replaced with the applicable provision of the Plan. This
Option has been granted, executed and delivered in the State of Nevada, and the
interpretation and enforcement shall be governed by the laws thereof and subject
to the exclusive jurisdiction of the courts therein.
IN WITNESS WHEREOF, the parties hereto have executed this Option as of the
date first above written.
COMPANY: ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: __________________________
Name: ________________________
Title: _______________________
OPTIONEE: By: __________________________
(SIGNATURE)
Name: ________________________
(ONE OF THE FOLLOWING, AS APPROPRIATE, SHALL BE SIGNED)
I certify that as of the date By his or her signature, the spouse
hereof I am unmarried of Optionee hereby agrees to be bound
by the provisions of the foregoing
STOCK INCENTIVE OPTION AGREEMENT
- ---------------------------------- -------------------------------------
Optionee Spouse of Optionee
B-1-8
Appendix A
NOTICE OF EXERCISE
ONE VOICE TECHNOLOGIES, INC.
6333 GREENWICH DRIVE, SUITE 240
SAN DIEGO, CALIFORNIA 92122
Re: Nonstatutory Stock Option
Notice is hereby given pursuant to Section 6 of my Nonstatutory Stock
Option Agreement that I elect to purchase the number of shares set forth below
at the exercise price set forth in my option agreement:
Nonstatutory Stock Option Agreement dated: ____________
Number of shares being purchased: ____________
Exercise Price: $____________
A check in the amount of the aggregate price of the shares being purchased
is attached.
I hereby confirm that such shares are being acquired by me for my own
account for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof. I will not sell or dispose of my
Shares in violation of the Securities Act of 1933, as amended, or any applicable
federal or state securities laws. Further, I understand that the exemption from
taxable income at the time of exercise is dependent upon my holding such stock
for a period of at least one year from the date of exercise and two years from
the date of grant of the Option.
I understand that the certificate representing the Option Shares will bear
a restrictive legend within the contemplation of the Securities Act and as
required by such other state or federal law or regulation applicable to the
issuance or delivery of the Option Shares.
I agree to provide to the Company such additional documents or information
as may be required pursuant to the Company's 2005 Stock Incentive Plan.
By: ___________________________
(SIGNATURE)
Name: _________________________
B-1-9
EXHIBIT B-2
ONE VOICE TECHNOLOGIES, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
================================================================================
THIS NONSTATUTORY STOCK OPTION AGREEMENT ("AGREEMENT") is made and entered
into as of the date set forth below, by and between ONE VOICE TECHNOLOGIES,
INC., a Nevada corporation (the "COMPANY"), and the following Director of the
Company ("OPTIONEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. Option Information.
-------------------
(a) Date of Option: ___________________________
(b) Optionee: ___________________________
(c) Number of Shares: ___________________________
(d) Exercise Price: ___________________________
2. Acknowledgements.
-----------------
(a) Optionee is a member of the Board of Directors of the Company.
(b) The Board of Directors (the "BOARD" which term shall include an
authorized committee of the Board of Directors) and shareholders of the
Company have heretofore adopted a 2005 Stock Incentive Plan (the "PLAN"),
pursuant to which this Option is being granted; and
(c) The Board has authorized the granting to Optionee of a
nonstatutory stock option ("OPTION") to purchase shares of common stock of
the Company ("STOCK") upon the terms and conditions hereinafter stated and
pursuant to an exemption from registration under the Securities Act of
1933, as amended (the "SECURITIES ACT") provided by Section 4(2)
thereunder.
3. SHARES; PRICE. Company hereby grants to Optionee the right to purchase,
upon and subject to the terms and conditions herein stated, the number of shares
of Stock set forth in Section 1(c) above (the "SHARES") for cash (or other
consideration as is authorized under the Plan and acceptable to the Board of
Directors of the Company, in their sole and absolute discretion) at the price
per Share set forth in Section 1(d) above (the "EXERCISE PRICE"), such price
being not less than eighty-five percent (85%) of the fair market value per share
of the Shares covered by this Option as of the date hereof.
4. TERM OF OPTION; CONTINUATION OF SERVICE. This Option shall expire, and
all rights hereunder to purchase the Shares shall terminate, ten (10) years from
the date hereof. This Option shall earlier terminate subject to Sections 7 and 8
hereof upon, and as of the date of, the termination of Optionee's employment if
such termination occurs prior to the end of such ten (10) year period. Nothing
contained herein shall confer upon Optionee the right to the continuation of his
or her employment by the Company or to interfere with the right of the Company
to terminate such employment or to increase or decrease the compensation of
Optionee from the rate in existence at the date hereof.
B-2-1
5. VESTING OF OPTION. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the term that Optionee
serves as a Director of the Company in three (3) equal annual installments of
thirty-three and one-third percent (33 1/3%) of the Shares covered by this
Option, the first installment to be exercisable on the first anniversary of the
date of this Option, with an additional thirty-three and one-third percent (33
1/3%) of such Shares becoming exercisable on each of the two (2) successive
anniversary dates. The installments shall be cumulative (i.e., this option may
be exercised, as to any or all shares covered by an installment, at any time or
times after an installment becomes exercisable and until expiration or
termination of this Option).
6. EXERCISE. This Option shall be exercised by delivery to the Company of
(a) written notice of exercise stating the number of Shares being purchased (in
whole shares only) and such other information set forth on the form of Notice of
Exercise attached hereto as Appendix A, (b) a check or cash in the amount of the
Exercise Price of the Shares covered by the notice (or such other consideration
as has been approved by the Board of Directors consistent with the Plan) and (c)
a written investment representation as provided for in Section 13 hereof. This
Option shall not be assignable or transferable, except by will or by the laws of
descent and distribution, and shall be exercisable only by Optionee during his
or her lifetime, except as provided in Section 8 hereof.
7. TERMINATION OF SERVICE. If Optionee shall cease to serve as a Director
of the Company for any reason, no further installments shall vest pursuant to
Section 5, and the maximum number of Shares that Optionee may purchase pursuant
hereto shall be limited to the number of Shares that were vested as of the date
Optionee ceases to be a Director (to the nearest whole Share). Thereupon,
Optionee shall have the right to exercise this Option, at any time during the
remaining term hereof, to the extent, but only to the extent, that this Option
was exercisable as of the date Optionee ceases to be a Director; provided,
however, if Optionee is removed as a Director pursuant to the Nevada corporation
law, the foregoing right to exercise shall automatically terminate on the date
Optionee ceases to be a Director as to all Shares covered by this Option not
exercised prior to termination. Unless earlier terminated, all rights under this
Option shall terminate in any event on the expiration date of this Option as
defined in Section 4 hereof.
8. DEATH OF OPTIONEE. If the Optionee shall die while in the employ of the
Company, Optionee's personal representative or the person entitled to Optionee's
rights hereunder may at any time within six (6) months after the date of
Optionee's death, or during the remaining term of this Option, whichever is the
lesser, exercise this Option and purchase Shares to the extent, but only to the
extent, that Optionee could have exercised this Option as of the date of
Optionee's death; provided, in any case, that this Option may be so exercised
only to the extent that this Option has not previously been exercised by
Optionee.
B-2-2
9. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Shares covered by any installment of this Option
until the effective date of issuance of the Shares following exercise of this
Option, and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such stock certificate or certificates are
issued except as provided in Section 10 hereof.
10. RECAPITALIZATION. Subject to any required action by the shareholders
of the Company, the number of Shares covered by this Option, and the Exercise
Price thereof, shall be proportionately adjusted for any increase or decrease in
the number of issued shares resulting from a subdivision or consolidation of
shares or the payment of a stock dividend, or any other increase or decrease in
the number of such shares effected without receipt of consideration by the
Company; provided however that the conversion of any convertible securities of
the Company shall not be deemed having been "effected without receipt of
consideration by the Company".
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "REORGANIZATION"), unless otherwise provided by the Board, this
Option shall terminate immediately prior to such date as is determined by the
Board, which date shall be no later than the consummation of such
Reorganization. In such event, if the entity which shall be the surviving entity
does not tender to Optionee an offer, for which it has no obligation to do so,
to substitute for any unexercised Option a stock option or capital stock of such
surviving of such surviving entity, as applicable, which on an equitable basis
shall provide the Optionee with substantially the same economic benefit as such
unexercised Option, then the Board may grant to such Optionee, in its sole and
absolute discretion and without obligation, the right for a period commencing
thirty (30) days prior to and ending immediately prior to the date determined by
the Board pursuant hereto for termination of the Option or during the remaining
term of the Option, whichever is the lesser, to exercise any unexpired Option or
Options without regard to the installment provisions of Section 5; provided,
however, that such exercise shall be subject to the consummation of such
Reorganization.
Subject to any required action by the shareholders of the Company, if the
Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the installment provisions of
Section 5 shall continue to apply.
In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized Stock without
par value into the same number of shares of Stock with a par value, the shares
resulting from any such change shall be deemed to be the Shares within the
meaning of this Option.
B-2-3
To the extent that the foregoing adjustments relate to shares or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
hereinbefore expressly provided, Optionee shall have no rights by reason of any
subdivision or consolidation of shares of Stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class, and the number and price of Shares subject to this Option
shall not be affected by, and no adjustments shall be made by reason of, any
dissolution, liquidation, merger, consolidation or sale of assets or capital
stock, or any issue by the Company of shares of stock of any class or securities
convertible into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
in its capital or business structure or to merge, consolidate, dissolve or
liquidate or to sell or transfer all or any part of its business or assets.
11. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon
exercise of this Option, Optionee will recognize income, for Federal and state
income tax purposes, in an amount equal to the amount by which the fair market
value of the Shares, determined as of the date of exercise, exceeds the Exercise
Price. The acceptance of the Shares by Optionee shall constitute an agreement by
Optionee to report such income in accordance with then applicable law and to
cooperate with Company in establishing the amount of such income and
corresponding deduction to the Company for its income tax purposes. Withholding
for federal or state income and employment tax purposes will be made, if and as
required by law, from Optionee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the Company
may require Optionee to make a cash payment to cover such liability as a
condition of the exercise of this Option.
12. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Board or
Committee, as described in the Plan, may modify, extend or renew this Option or
accept the surrender thereof (to the extent not theretofore exercised) and
authorize the granting of a new option in substitution therefore (to the extent
not theretofore exercised), subject at all times to the Plan, the Code and the
Nevada Securities Rules. Notwithstanding the foregoing provisions of this
Section 12, no modification shall, without the consent of the Optionee, alter to
the Optionee's detriment or impair any rights of Optionee hereunder.
13. INVESTMENT INTENT; RESTRICTIONS ON TRANSFER.
(a) Optionee represents and agrees that if Optionee exercises this
Option in whole or in part, Optionee will in each case acquire the Shares
upon such exercise for the purpose of investment and not with a view to,
or for resale in connection with, any distribution thereof; and that upon
such exercise of this Option in whole or in part, Optionee (or any person
or persons entitled to exercise this Option under the provisions of
Sections 7 and 8 hereof) shall furnish to the Company a written statement
to such effect, satisfactory to the Company in form and substance. If the
Shares represented by this Option are registered under the Securities Act,
either before or after the exercise of this Option in whole or in part,
the Optionee shall be relieved of the foregoing investment representation
and agreement and shall not be required to furnish the Company with the
foregoing written statement.
B-2-4
(b) Optionee further represents that Optionee has had access to the
financial statements or books and records of the Company, has had the
opportunity to ask questions of the Company concerning its business,
operations and financial condition, and to obtain additional information
reasonably necessary to verify the accuracy of such information
(c) Unless and until the Shares represented by this Option are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution therefor
and any certificate for any securities issued pursuant to any stock split,
share reclassification, stock dividend or other similar capital event
shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE APPLICABLE OR
SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST
THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN NONSTATUTORY STOCK OPTION AGREEMENT DATED ____________
BETWEEN THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE
SHARES WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN
CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with respect to
the Shares have been placed with the Company's transfer agent.
14. STAND-OFF AGREEMENT. Optionee agrees that, in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Optionee shall not sell, short any sale of, loan,
grant an option for, or otherwise dispose of any of the Shares (other than
Shares included in the offering) without the prior written consent of the
Company or such managing underwriter, as applicable, for a period of at least
one year following the effective date of registration of such offering.
B-2-5
15. RESTRICTION UPON TRANSFER. The Shares may not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated by the
Optionee except as hereinafter provided.
(a) REPURCHASE RIGHT ON TERMINATION OTHER THAN BY REMOVAL. For the
purposes of this Section, a "REPURCHASE EVENT" shall mean an occurrence of
one of (i) termination of Optionee's service as a director; (ii) death of
Optionee; (iii) bankruptcy of Optionee, which shall be deemed to have
occurred as of the date on which a voluntary or involuntary petition in
bankruptcy is filed with a court of competent jurisdiction; (iv)
dissolution of the marriage of Optionee, to the extent that any of the
Shares are allocated as the sole and separate property of Optionee's
spouse pursuant thereto (in which case, this Section shall only apply to
the Shares so affected); or (v) any attempted transfer by the Optionee of
Shares, or any interest therein, in violation of this Agreement. Upon the
occurrence of a Repurchase Event, and upon mutual agreement of the Company
and Optionee, the Company may repurchase all or any portion of the Shares
of Optionee at a price equal to the fair value of the Shares as of the
date of the Repurchase Event.
(b) REPURCHASE RIGHT ON REMOVAL. In the event Optionee is removed as
a director pursuant to Nevada Revised Statutes, or Optionee voluntarily
resigns as a director prior to the date upon which the last installment of
Shares becomes exercisable pursuant to Section 5, then the Company shall
have the right (but not an obligation) to repurchase Shares of Optionee at
a price equal to the Exercise Price. Such right of the Company to
repurchase Shares shall apply to 100% of the Shares for one (1) year from
the date of this Agreement; and shall thereafter lapse ratably in equal
annual increments on each anniversary of the date of this Agreement over
the term of this Option specified in Section 4. In addition, the Company
shall have the right, in the sole discretion of the Board and without
obligation, to repurchase upon removal or resignation all or any portion
of the Shares of Optionee, at a price equal to the fair value of the
Shares as of the date of such removal or resignation, which right is not
subject to the foregoing lapsing of rights. In the event the Company
elects to repurchase the Shares, the stock certificates representing the
same shall forthwith be returned to the Company for cancellation.
(c) EXERCISE OF REPURCHASE RIGHT. Any Repurchase Right under
Paragraphs 15(a) or 15(b) shall be exercised by giving notice of exercise
as provided herein to Optionee or the estate of Optionee, as applicable.
Such right shall be exercised, and the repurchase price thereunder shall
be paid, by the Company within a ninety (90) day period beginning on the
date of notice to the Company of the occurrence of such Repurchase Event
(except in the case of termination or cessation of services as director,
where such option period shall begin upon the occurrence of the Repurchase
Event). Such repurchase price shall be payable only in the form of cash
(including a check drafted on immediately available funds) or cancellation
of purchase money indebtedness of the Optionee for the Shares. If the
Company can not purchase all such Shares because it is unable to meet the
financial tests set forth in the Nevada corporation law, the Company shall
have the right to purchase as many Shares as it is permitted to purchase
under such sections. Any Shares not purchased by the Company hereunder
shall no longer be subject to the provisions of this Section 15.
B-2-6
(d) Right of First Refusal. In the event Optionee desires to
transfer any Shares during his or her lifetime, Optionee shall first offer
to sell such Shares to the Company. Optionee shall deliver to the Company
written notice of the intended sale, such notice to specify the number of
Shares to be sold, the proposed purchase price and terms of payment, and
grant the Company an option for a period of thirty days following receipt
of such notice to purchase the offered Shares upon the same terms and
conditions. To exercise such option, the Company shall give notice of that
fact to Optionee within the thirty (30) day notice period and agree to pay
the purchase price in the manner provided in the notice. If the Company
does not purchase all of the Shares so offered during foregoing option
period, Optionee shall be under no obligation to sell any of the offered
Shares to the Company, but may dispose of such Shares in any lawful manner
during a period of one hundred and eighty (180) days following the end of
such notice period, except that Optionee shall not sell any such Shares to
any other person at a lower price or upon more favorable terms than those
offered to the Company.
(e) Acceptance of Restrictions. Acceptance of the Shares shall
constitute the Optionee's agreement to such restrictions and the legending
of his certificates with respect thereto. Notwithstanding such
restrictions, however, so long as the Optionee is the holder of the
Shares, or any portion thereof, he shall be entitled to receive all
dividends declared on and to vote the Shares and to all other rights of a
shareholder with respect thereto.
(f) Permitted Transfers. Notwithstanding any provisions in this
Section 15 to the contrary, the Optionee may transfer Shares subject to
this Agreement to his or her parents, spouse, children, or grandchildren,
or a trust for the benefit of the Optionee or any such transferee(s);
provided, that such permitted transferee(s) shall hold the Shares subject
to all the provisions of this Agreement (all references to the Optionee
herein shall in such cases refer mutatis mutandis to the permitted
transferee, except in the case of clause (iv) of Section 15(a) wherein the
permitted transfer shall be deemed to be rescinded); and provided further,
that notwithstanding any other provisions in this Agreement, a permitted
transferee may not, in turn, make permitted transfers without the written
consent of the Optionee and the Company.
(g) Release of Restrictions on Shares. All other restrictions under
this Section 15 shall terminate five (5) years following the date of this
Agreement, or when the Company's securities are publicly traded, whichever
occurs earlier.
16. NOTICES. Any notice required to be given pursuant to this Option or
the Plan shall be in writing and shall be deemed to be delivered upon receipt
or, in the case of notices by the Company, five (5) days after deposit in the
U.S. mail, postage prepaid, addressed to Optionee at the address last provided
by Optionee for use in Company records related to Optionee.
B-2-7
17. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Option is made
pursuant to the Plan and shall be interpreted to comply therewith. A copy of
such Plan is available to Optionee, at no charge, at the principal office of the
Company. Any provision of this Option inconsistent with the Plan shall be
considered void and replaced with the applicable provision of the Plan. This
Option has been granted, executed and delivered in the State of Nevada, and the
interpretation and enforcement shall be governed by the laws thereof and subject
to the exclusive jurisdiction of the courts therein.
IN WITNESS WHEREOF, the parties hereto have executed this Option as of the
date first above written.
COMPANY: ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: __________________________
Name: ________________________
Title: _______________________
OPTIONEE: By: __________________________
(SIGNATURE)
Name: ________________________
(ONE OF THE FOLLOWING, AS APPROPRIATE, SHALL BE SIGNED)
I certify that as of the date By his or her signature, the spouse
hereof I am unmarried of Optionee hereby agrees to be bound
by the provisions of the foregoing
STOCK INCENTIVE OPTION AGREEMENT
- ---------------------------------- -------------------------------------
Optionee Spouse of Optionee
B-2-8
Appendix A
NOTICE OF EXERCISE
ONE VOICE TECHNOLOGIES, INC.
6333 GREENWICH DRIVE, SUITE 240
SAN DIEGO, CALIFORNIA 92122
Re: Nonstatutory Stock Option
Notice is hereby given pursuant to Section 6 of my Nonstatutory Stock
Option Agreement that I elect to purchase the number of shares set forth below
at the exercise price set forth in my option agreement:
Nonstatutory Stock Option Agreement dated: ____________
Number of shares being purchased: ____________
Exercise Price: $____________
A check in the amount of the aggregate price of the shares being purchased
is attached.
I hereby confirm that such shares are being acquired by me for my own
account for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof. I will not sell or dispose of my
Shares in violation of the Securities Act of 1933, as amended, or any applicable
federal or state securities laws. Further, I understand that the exemption from
taxable income at the time of exercise is dependent upon my holding such stock
for a period of at least one year from the date of exercise and two years from
the date of grant of the Option.
I understand that the certificate representing the Option Shares will bear
a restrictive legend within the contemplation of the Securities Act and as
required by such other state or federal law or regulation applicable to the
issuance or delivery of the Option Shares.
I agree to provide to the Company such additional documents or information
as may be required pursuant to the Company's 2005 Stock Incentive Plan.
By: ___________________________
(SIGNATURE)
Name: _________________________
B-2-9
EXHIBIT B-3
ONE VOICE TECHNOLOGIES, INC.
CONSULTANT NONSTATUTORY STOCK OPTION AGREEMENT
================================================================================
THIS CONSULTANT NONSTATUTORY STOCK OPTION AGREEMENT ("AGREEMENT") is made
and entered into as of the date set forth below, by and between ONE VOICE
TECHNOLOGIES, INC., a Nevada corporation (the "COMPANY"), and the following
consultant to the Company (herein, the "OPTIONEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. Option Information.
-------------------
(a) Date of Option: ___________________________
(b) Optionee: ___________________________
(c) Number of Shares: ___________________________
(d) Exercise Price: ___________________________
2. Acknowledgements.
-----------------
(a) Optionee is an independent consultant to the Company, not an
employee;
(b) The Board of Directors (the "BOARD" which term shall include an
authorized committee of the Board of Directors) and shareholders of the
Company have heretofore adopted a 2005 Stock Incentive Plan (the "PLAN"),
pursuant to which this Option is being granted; and
(c) The Board has authorized the granting to Optionee of a
nonstatutory stock option ("OPTION") to purchase shares of common stock of
the Company ("STOCK") upon the terms and conditions hereinafter stated and
pursuant to an exemption from registration under the Securities Act of
1933, as amended (the "SECURITIES ACT") provided by Section 4(2)
thereunder.
3. SHARES; PRICE. The Company hereby grants to Optionee the right to
purchase, upon and subject to the terms and conditions herein stated, the number
of shares of Stock set forth in Section 1(c) above (the "SHARES") for cash (or
other consideration as is authorized under the Plan and acceptable to the Board,
in their sole and absolute discretion) at the price per Share set forth in
Section 1(d) above (the "EXERCISE PRICE"), such price being not less than
eighty-five 85% of the fair market value per share of the Shares covered by this
Option as of the date hereof.
4. TERM OF OPTION. This Option shall expire, and all rights hereunder to
purchase the Shares, shall terminate five (5) years from the date hereof.
Nothing contained herein shall be construed to interfere in any way with the
right of the Company to terminate Optionee as a consultant to the Company, or to
increase or decrease the compensation paid to Optionee from the rate in effect
as of the date hereof.
B-3-1
5. VESTING OF OPTION. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the period that Optionee
serves as a consultant of the Company in equal annual installments, each
installment covering a fraction of the Shares, the numerator of which is one (1)
and the denominator of which is the number of years in the term of this Option
(not to exceed 5). The first installment shall become exercisable on the first
anniversary of the date of this Option, and an additional installment shall
become exercisable on each successive anniversary date during the term of this
Option, except the last such anniversary date. The final installment shall
become exercisable ninety days prior to the expiration of the term of this
Option. The installments shall be cumulative (i.e., this option may be
exercised, as to any or all shares covered by an installment, at any time or
times after an installment becomes exercisable and until expiration or
termination of this option).
6. EXERCISE. This Option shall be exercised by delivery to the Company of
(a) written notice of exercise stating the number of Shares being purchased (in
whole shares only) and such other information set forth on the form of Notice of
Exercise attached hereto as Appendix A, (b) a check or cash in the amount of the
Exercise Price of the Shares covered by the notice (or such other consideration
as has been approved by the Board of Directors consistent with the Plan) and (c)
a written investment representation as provided for in Section 13 hereof. This
Option shall not be assignable or transferable, except by will or by the laws of
descent and distribution, and shall be exercisable only by Optionee during his
or her lifetime.
7. TERMINATION OF SERVICE. If Optionee's service as a consultant to the
Company terminates for any reason, no further installments shall vest pursuant
to Section 5, and Optionee shall have the right at any time within thirty (30)
days following such termination of services or the remaining term of this
Option, whichever is the lesser, to exercise in whole or in part this Option to
the extent, but only to the extent, that this Option was exercisable as of the
date Optionee ceased to be a consultant to the Company; provided, however, if
Optionee is terminated for reasons that would justify a termination of
employment "FOR CAUSE" as contemplated by Title 53 of the Nevada Revised
Statutes and case law related thereto, the foregoing right to exercise shall
automatically terminate on the date Optionee ceases to be a consultant to the
Company as to all Shares covered by this Option not exercised prior to
termination. Unless earlier terminated, all rights under this Option shall
terminate in any event on the expiration date of this Option as defined in
Section 4 hereof.
8. DEATH OF OPTIONEE. If the Optionee shall die while serving as a
consultant to the Company, Optionee's personal representative or the person
entitled to Optionee's rights hereunder may at any time within ninety (90) days
after the date of Optionee's death, or during the remaining term of this Option,
whichever is the lesser, exercise this Option and purchase Shares to the extent,
but only to the extent, that Optionee could have exercised this Option as of the
date of Optionee's death; provided, in any case, that this Option may be so
exercised only to the extent that this Option has not previously been exercised
by Optionee.
B-3-2
9. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Shares covered by any installment of this Option
until the effective date of the issuance of shares following exercise of this to
Option, and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such stock certificate or certificates are
issued except as provided in Section 10 hereof.
10. RECAPITALIZATION. Subject to any required action by the shareholders
of the Company, the number of Shares covered by this Option, and the Exercise
Price thereof, shall be proportionately adjusted for any increase or decrease in
the number of issued shares resulting from a subdivision or consolidation of
shares or the payment of a stock dividend, or any other increase or decrease in
the number of such shares effected without receipt of consideration by the
Company; provided however that the conversion of any convertible securities of
the Company shall not be deemed having been "effected without receipt of
consideration by the Company."
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "REORGANIZATION"), this Option shall terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board; provided, however, if Optionee shall be a consultant at the time such
Reorganization is approved by the stockholders, Optionee shall have the right to
exercise this Option as to all or any part of the Shares, without regard to the
installment provisions of Section 5, for a period beginning 30 days prior to the
consummation of such Reorganization and ending as of the Reorganization or the
expiration of this Option, whichever is earlier, subject to the consummation of
the Reorganization. In any event, the Company shall notify Optionee, at least 30
days prior to the consummation of such Reorganization, of his exercise rights,
if any, and that the Option shall terminate upon the consummation of the
Reorganization.
Subject to any required action by the shareholders of the Company, if the
Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the installment provisions of
Section 5 shall continue to apply.
In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized Stock without
par value into the same number of shares of Stock with a par value, the shares
resulting from any such change shall be deemed to be the Shares within the
meaning of this Option.
To the extent that the foregoing adjustments relate to shares or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
hereinbefore expressly provided, Optionee shall have no rights by reason of any
subdivision or consolidation of shares of Stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class, and the number and price of Shares subject to this Option
shall not be affected by, and no adjustments shall be made by reason of, any
dissolution, liquidation, merger, consolidation or sale of assets or capital
stock, or any issue by the Company of shares of stock of any class or securities
convertible into shares of stock of any class.
B-3-3
The grant of this Option shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
in its capital or business structure or to merge, consolidate, dissolve or
liquidate or to sell or transfer all or any part of its business or assets.
11. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon
exercise of this Option, Optionee will recognize income, for Federal and state
income tax purposes, in an amount equal to the amount by which the fair market
value of the Shares, determined as of the date of exercise, exceeds the Exercise
Price. The acceptance of the Shares by Optionee shall constitute an agreement by
Optionee to report such income in accordance with then applicable law and to
cooperate with Company in establishing the amount of such income and
corresponding deduction to the Company for its income tax purposes. Withholding
for federal or state income and employment tax purposes will be made, if and as
required by law, from Optionee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the Company
may require Optionee to make a cash payment to cover such liability as a
condition of the exercise of this Option.
12. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Board or
Committee, as described in the Plan, may modify, extend or renew this Option or
accept the surrender thereof (to the extent not theretofore exercised) and
authorize the granting of a new option in substitution therefore (to the extent
not theretofore exercised), subject at all times to the Plan, the Code.
Notwithstanding the foregoing provisions of this Section 12, no modification
shall, without the consent of the Optionee, alter to the Optionee's detriment or
impair any rights of Optionee hereunder.
13. INVESTMENT INTENT; RESTRICTIONS ON TRANSFER.
(a) Optionee represents and agrees that if Optionee exercises this
Option in whole or in part, Optionee will in each case acquire the Shares
upon such exercise for the purpose of investment and not with a view to,
or for resale in connection with, any distribution thereof; and that upon
such exercise of this Option in whole or in part, Optionee (or any person
or persons entitled to exercise this Option under the provisions of
Sections 7 and 8 hereof) shall furnish to the Company a written statement
to such effect, satisfactory to the Company in form and substance. If the
Shares represented by this Option are registered under the Securities Act,
either before or after the exercise of this Option in whole or in part,
the Optionee shall be relieved of the foregoing investment representation
and agreement and shall not be required to furnish the Company with the
foregoing written statement.
(b) Optionee further represents that Optionee has had access to the
financial statements or books and records of the Company, has had the
opportunity to ask questions of the Company concerning its business,
operations and financial condition, and to obtain additional information
reasonably necessary to verify the accuracy of such information.
B-3-4
(c) Unless and until the Shares represented by this Option are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution therefor
and any certificate for any securities issued pursuant to any stock split,
share reclassification, stock dividend or other similar capital event
shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE APPLICABLE OR
SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST
THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN NONSTATUTORY STOCK OPTION AGREEMENT DATED ___________ BETWEEN
THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE SHARES
WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with respect to
the Shares have been placed with the Company's transfer agent.
14. STAND-OFF AGREEMENT. Optionee agrees that, in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Optionee shall not sell, short any sale of, loan,
grant an option for, or otherwise dispose of any of the Shares (other than
Shares included in the offering) without the prior written consent of the
Company or such managing underwriter, as applicable, for a period of up to one
year following the effective date of registration of such offering.
15. RESTRICTION UPON TRANSFER. The Shares may not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated by the
Optionee except as hereinafter provided.
B-3-5
(a) REPURCHASE RIGHT ON TERMINATION OTHER THAN FOR CAUSE. For the
purposes of this Section, a "REPURCHASE EVENT" shall mean an occurrence of
one of (i) termination of Optionee's service as a consultant, voluntary or
involuntary and with or without cause; (ii) retirement or death of
Optionee; (iii) bankruptcy of Optionee, which shall be deemed to have
occurred as of the date on which a voluntary or involuntary petition in
bankruptcy is filed with a court of competent jurisdiction; (iv)
dissolution of the marriage of Optionee, to the extent that any of the
Shares are allocated as the sole and separate property of Optionee's
spouse pursuant thereto (in which case, this Section shall only apply to
the Shares so affected); or (v) any attempted transfer by the Optionee of
Shares, or any interest therein, in violation of this Agreement. Upon the
occurrence of a Repurchase Event, the Company shall have the right (but
not an obligation) to repurchase all or any portion of the Shares of
Optionee at a price equal to the fair value of the Shares as of the date
of the Repurchase Event.
(b) REPURCHASE RIGHT ON TERMINATION FOR CAUSE. In the event
Optionee's service as a consultant is terminated by the Company "for
cause" (as contemplated by Section 7), then the Company shall have the
right (but not an obligation) to repurchase Shares of Optionee at a price
equal to the Exercise Price. Such right of the Company to repurchase
Shares shall apply to 100% of the Shares for one (1) year from the date of
this Agreement; and shall thereafter lapse ratably in equal annual
increments on each anniversary of the date of this Agreement over the term
of this Option specified in Section 4. In addition, the Company shall have
the right, in the sole discretion of the Board and without obligation, to
repurchase upon any such termination of service for cause all or any
portion of the Shares of Optionee, at a price equal to the fair value of
the Shares as of the date of termination, which right is not subject to
the foregoing lapsing of rights. In the event the Company elects to
repurchase the Shares, the stock certificates representing the same shall
forthwith be returned to the Company for cancellation.
(c) EXERCISE OF REPURCHASE RIGHT. Any repurchase right under
Paragraphs 15(a) or 15(b) shall be exercised by giving notice of exercise
as provided herein to Optionee or the estate of Optionee, as applicable.
Such right shall be exercised, and the repurchase price thereunder shall
be paid, by the Company within a ninety (90) day period beginning on the
date of notice to the Company of the occurrence of such Repurchase Event
(except in the case of termination of employment or retirement, where such
option period shall begin upon the occurrence of the Repurchase Event).
Such repurchase price shall be payable only in the form of cash (including
a check drafted on immediately available funds) or cancellation of
purchase money indebtedness of the Optionee for the Shares. If the Company
can not purchase all such Shares because it is unable to meet the
financial tests set forth in the Nevada and/or Nevada corporation law, the
Company shall have the right to purchase as many Shares as it is permitted
to purchase under such sections. Any Shares not purchased by the Company
hereunder shall no longer be subject to the provisions of this Section 15.
B-3-6
(d) RIGHT OF FIRST REFUSAL. In the event Optionee desires to
transfer any Shares during his or her lifetime, Optionee shall first offer
to sell such Shares to the Company. Optionee shall deliver to the Company
written notice of the intended sale, such notice to specify the number of
Shares to be sold, the proposed purchase price and terms of payment, and
grant the Company an option for a period of thirty days following receipt
of such notice to purchase the offered Shares upon the same terms and
conditions. To exercise such option, the Company shall give notice of that
fact to Optionee within the thirty (30) day notice period and agree to pay
the purchase price in the manner provided in the notice. If the Company
does not purchase all of the Shares so offered during foregoing option
period, Optionee shall be under no obligation to sell any of the offered
Shares to the Company, but may dispose of such Shares in any lawful manner
during a period of one hundred and eighty (180) days following the end of
such notice period, except that Optionee shall not sell any such Shares to
any other person at a lower price or upon more favorable terms than those
offered to the Company.
(e) ACCEPTANCE OF RESTRICTIONS. Acceptance of the Shares shall
constitute the Optionee's agreement to such restrictions and the legending
of his certificates with respect thereto. Notwithstanding such
restrictions, however, so long as the Optionee is the holder of the
Shares, or any portion thereof, he shall be entitled to receive all
dividends declared on and to vote the Shares and to all other rights of a
shareholder with respect thereto.
(f) PERMITTED TRANSFERS. Notwithstanding any provisions in this
Section 15 to the contrary, the Optionee may transfer Shares subject to
this Agreement to his or her parents, spouse, children, or grandchildren,
or a trust for the benefit of the Optionee or any such transferee(s);
provided, that such permitted transferee(s) shall hold the Shares subject
to all the provisions of this Agreement (all references to the Optionee
herein shall in such cases refer mutatis mutandis to the permitted
transferee, except in the case of clause (iv) of Section 15(a) wherein the
permitted transfer shall be deemed to be rescinded); and provided further,
that notwithstanding any other provisions in this Agreement, a permitted
transferee may not, in turn, make permitted transfers without the written
consent of the Optionee and the Company.
(g) RELEASE OF RESTRICTIONS ON SHARES. All rights and restrictions
under this Section 15 shall terminate five (5) years following the date of
this Agreement, or when the Company's securities are publicly traded,
whichever occurs earlier.
16. NOTICES. Any notice required to be given pursuant to this Option or
the Plan shall be in writing and shall be deemed to be delivered upon receipt
or, in the case of notices by the Company, five (5) days after deposit in the
U.S. mail, postage prepaid, addressed to Optionee at the address last provided
by Optionee for use in Company records related to Optionee.
B-3-7
17. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Option is made
pursuant to the Plan and shall be interpreted to comply therewith. A copy of
such Plan is available to Optionee, at no charge, at the principal office of the
Company. Any provision of this Option inconsistent with the Plan shall be
considered void and replaced with the applicable provision of the Plan. This
Option has been granted, executed and delivered in the State of Nevada, and the
interpretation and enforcement shall be governed by the laws thereof and subject
to the exclusive jurisdiction of the courts therein.
[SIGNATURE PAGE FOLLOWS.]
B-3-7
IN WITNESS WHEREOF, the parties hereto have executed this Option as of the
date first above written.
COMPANY: ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: __________________________
Name: ________________________
Title: _______________________
OPTIONEE: By: __________________________
(SIGNATURE)
Name: ________________________
(ONE OF THE FOLLOWING, AS APPROPRIATE, SHALL BE SIGNED)
I certify that as of the date By his or her signature, the spouse
hereof I am unmarried of Optionee hereby agrees to be bound
by the provisions of the foregoing
STOCK INCENTIVE OPTION AGREEMENT
- ---------------------------------- -------------------------------------
Optionee Spouse of Optionee
B-3-9
Appendix A
NOTICE OF EXERCISE
ONE VOICE TECHNOLOGIES, INC.
6333 GREENWICH DRIVE, SUITE 240
SAN DIEGO, CALIFORNIA 92122
Re: Nonstatutory Stock Option
Notice is hereby given pursuant to Section 6 of my Nonstatutory Stock
Option Agreement that I elect to purchase the number of shares set forth below
at the exercise price set forth in my option agreement:
Nonstatutory Stock Option Agreement dated: ____________
Number of shares being purchased: ____________
Exercise Price: $____________
A check in the amount of the aggregate price of the shares being purchased
is attached.
I hereby confirm that such shares are being acquired by me for my own
account for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof. I will not sell or dispose of my
Shares in violation of the Securities Act of 1933, as amended, or any applicable
federal or state securities laws. Further, I understand that the exemption from
taxable income at the time of exercise is dependent upon my holding such stock
for a period of at least one year from the date of exercise and two years from
the date of grant of the Option.
I understand that the certificate representing the Option Shares will bear
a restrictive legend within the contemplation of the Securities Act and as
required by such other state or federal law or regulation applicable to the
issuance or delivery of the Option Shares.
I agree to provide to the Company such additional documents or information
as may be required pursuant to the Company's 2005 Stock Incentive Plan.
By: ___________________________
(SIGNATURE)
Name: _________________________
B-3-10
EXHIBIT C
ONE VOICE TECHNOLOGIES, INC.
STOCK AWARD AGREEMENT
================================================================================
THIS STOCK AWARD AGREEMENT ("AGREEMENT") is made and entered into as of
the date set forth below, by and between ONE VOICE TECHNOLOGIES, INC., a Nevada
corporation (the "COMPANY"), and the employee, director or consultant of the
Company named in Section 1(b). ("GRANTEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. Stock Award Information.
------------------------
(a) Date of Award: ___________________________
(b) Grantee: ___________________________
(c) Number of Shares: ___________________________
(d) Original Value: ___________________________
2. Acknowledgements.
-----------------
(a) Grantee is a [EMPLOYEE/DIRECTOR/CONSULTANT] of the Company.
(b) The Company has adopted a 2005 Stock Incentive Plan (the "PLAN")
under which the Company's common stock ("STOCK") may be offered to
directors, officers, employees and consultants pursuant to an exemption
from registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT") provided by Section 4(2) thereunder.
3. SHARES; VALUE. The Company hereby grants to Grantee, upon and subject
to the terms and conditions herein stated, the number of shares of Stock set
forth in Section 1(c) (the "SHARES"), which Shares have a fair value per share
("ORIGINAL VALUE") equal to the amount set forth in Section 1(d). For the
purpose of this Agreement, the terms "SHARE" or "SHARES" shall include the
original Shares plus any shares derived therefrom, regardless of the fact that
the number, attributes or par value of such Shares may have been altered by
reason of any recapitalization, subdivision, consolidation, stock dividend or
amendment of the corporate charter of the Company. The number of Shares covered
by this Agreement and the Original Value thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares resulting
from a recapitalization, subdivision or consolidation of shares or the payment
of a stock dividend, or any other increase or decrease in the number of such
shares effected without receipt of consideration by the Company.
4. INVESTMENT INTENT. Grantee represents and agrees that Grantee is
accepting the Shares for the purpose of investment and not with a view to, or
for resale in connection with, any distribution thereof; and that, if requested,
Grantee shall furnish to the Company a written statement to such effect,
satisfactory to the Company in form and substance. If the Shares are registered
under the Securities Act, Grantee shall be relieved of the foregoing investment
representation and agreement and shall not be required to furnish the Company
with the foregoing written statement.
C-1
5. RESTRICTION UPON TRANSFER. The Shares may not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated by the
Grantee except as hereinafter provided.
(a) REPURCHASE RIGHT ON TERMINATION OTHER THAN FOR CAUSE. For the
purposes of this Section, a "REPURCHASE EVENT" shall mean an occurrence of
one of (i) termination of Grantee's employment [OR SERVICE AS A
DIRECTOR/CONSULTANT] by the Company, voluntary or involuntary and with or
without cause; (ii) retirement or death of Grantee; (iii) bankruptcy of
Grantee, which shall be deemed to have occurred as of the date on which a
voluntary or involuntary petition in bankruptcy is filed with a court of
competent jurisdiction; (iv) dissolution of the marriage of Grantee, to
the extent that any of the Shares are allocated as the sole and separate
property of Grantee's spouse pursuant thereto (in which case, this Section
shall only apply to the Shares so affected); or (v) any attempted transfer
by the Grantee of Shares, or any interest therein, in violation of this
Agreement. Upon the occurrence of a Repurchase Event, the Company shall
have the right (but not an obligation) to purchase all or any portion of
the Shares of Grantee, at a price equal to the fair value of the Shares as
of the date of the Repurchase Event.
(b) REPURCHASE RIGHT ON TERMINATION FOR CAUSE. In the event
Grantee's employment [OR SERVICE AS A DIRECTOR/CONSULTANT] is terminated
by the Company "FOR CAUSE" (as defined below), then the Company shall have
the right (but not an obligation) to purchase Shares of Grantee at a price
equal to the Original Value. Such right of the Company to purchase Shares
shall apply to 100% of the Shares for one (1) year from the date of this
Agreement; and shall thereafter lapse at the rate of twenty percent (20%)
of the Shares on each anniversary of the date of this Agreement. In
addition, the Company shall have the right, in the sole discretion of the
Board and without obligation, to repurchase upon termination for cause all
or any portion of the Shares of Grantee, at a price equal to the fair
value of the Shares as of the date of termination, which right is not
subject to the foregoing lapsing of rights. Termination of employment [OR
SERVICE AS A DIRECTOR/CONSULTANT] "FOR CAUSE" means (i) as to employees or
consultants, termination for cause as contemplated by Title 53 of the
Nevada Revised Statutes and case law related thereto, or as defined in the
Plan, this Agreement or in any employment [OR CONSULTING] agreement
between the Company and Grantee, or (ii) as to directors, removal pursuant
to the Nevada corporation law. In the event the Company elects to purchase
the Shares, the stock certificates representing the same shall forthwith
be returned to the Company for cancellation.
(c) EXERCISE OF REPURCHASE RIGHT. Any Repurchase Right under
Paragraphs 4(a) or 4(b) shall be exercised by giving notice of exercise as
provided herein to Grantee or the estate of Grantee, as applicable. Such
right shall be exercised, and the repurchase price thereunder shall be
paid, by the Company within a ninety (90) day period beginning on the date
of notice to the Company of the occurrence of such Repurchase Event
(except in the case of termination or cessation of services as director,
where such option period shall begin upon the occurrence of the Repurchase
Event). Such repurchase price shall be payable only in the form of cash
(including a check drafted on immediately available funds) or cancellation
of purchase money indebtedness of the Grantee for the Shares. If the
Company can not purchase all such Shares because it is unable to meet the
financial tests set forth in the Nevada corporation law, the Company shall
have the right to purchase as many Shares as it is permitted to purchase
under such sections. Any Shares not purchased by the Company hereunder
shall no longer be subject to the provisions of this Section 5.
C-2
(d) RIGHT OF FIRST REFUSAL. In the event Grantee desires to transfer
any Shares during his or her lifetime, Grantee shall first offer to sell
such Shares to the Company. Grantee shall deliver to the Company written
notice of the intended sale, such notice to specify the number of Shares
to be sold, the proposed purchase price and terms of payment, and grant
the Company an option for a period of thirty days following receipt of
such notice to purchase the offered Shares upon the same terms and
conditions. To exercise such option, the Company shall give notice of that
fact to Grantee within the thirty (30) day notice period and agree to pay
the purchase price in the manner provided in the notice. If the Company
does not purchase all of the Shares so offered during foregoing option
period, Grantee shall be under no obligation to sell any of the offered
Shares to the Company, but may dispose of such Shares in any lawful manner
during a period of one hundred and eighty (180) days following the end of
such notice period, except that Grantee shall not sell any such Shares to
any other person at a lower price or upon more favorable terms than those
offered to the Company.
(e) ACCEPTANCE OF RESTRICTIONS. Acceptance of the Shares shall
constitute the Grantee's agreement to such restrictions and the legending
of his certificates with respect thereto. Notwithstanding such
restrictions, however, so long as the Grantee is the holder of the Shares,
or any portion thereof, he shall be entitled to receive all dividends
declared on and to vote the Shares and to all other rights of a
shareholder with respect thereto.
(f) PERMITTED TRANSFERS. Notwithstanding any provisions in this
Section 5 to the contrary, the Grantee may transfer Shares subject to this
Agreement to his or her parents, spouse, children, or grandchildren, or a
trust for the benefit of the Grantee or any such transferee(s); provided,
that such permitted transferee(s) shall hold the Shares subject to all the
provisions of this Agreement (all references to the Grantee herein shall
in such cases refer mutatis mutandis to the permitted transferee, except
in the case of clause (iv) of Section 5(a) wherein the permitted transfer
shall be deemed to be rescinded); and provided further, that
notwithstanding any other provisions in this Agreement, a permitted
transferee may not, in turn, make permitted transfers without the written
consent of the Grantee and the Company.
(g) RELEASE OF RESTRICTIONS ON SHARES. All rights and restrictions
under this Section 5 shall terminate five (5) years following the date of
this Agreement, or when the Company's securities are publicly traded,
whichever occurs earlier.
6. REPRESENTATIONS AND WARRANTIES OF THE GRANTEE. This Agreement and the
issuance and grant of the Shares hereunder is made by the Company in reliance
upon the express representations and warranties of the Grantee, which by
acceptance hereof the Grantee confirms that:
C-3
(a) The Shares granted to him pursuant to this Agreement are being
acquired by him for his own account, for investment purposes, and not with
a view to, or for sale in connection with, any distribution of the Shares.
It is understood that the Shares have not been registered under the Act by
reason of a specific exemption from the registration provisions of the Act
which depends, among other things, upon the bona fide nature of his
representations as expressed herein;
(b) The Shares must be held by him indefinitely unless they are
subsequently registered under the Act and any applicable state securities
laws, or an exemption from such registration is available. The Company is
under no obligation to register the Shares or to make available any such
exemption; and
(c) Grantee further represents that Grantee has had access to the
financial statements or books and records of the Company, has had the
opportunity to ask questions of the Company concerning its business,
operations and financial condition and to obtain additional information
reasonably necessary to verify the accuracy of such information,
(d) Unless and until the Shares represented by this Grant are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution therefor
and any certificate for any securities issued pursuant to any stock split,
share reclassification, stock dividend or other similar capital event
shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE APPLICABLE OR
SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST
THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN STOCK AWARD AGREEMENT DATED ____________ BETWEEN THE COMPANY
AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE SHARES WHICH ARE
SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with
respect to the Shares have been placed with the Company's transfer agent.
C-4
(e) Grantee understands that he or she will recognize income, for
Federal and state income tax purposes, in an amount equal to the amount by
which the fair market value of the Shares, as of the date of grant,
exceeds the price paid by Grantee, if any. The acceptance of the Shares by
Grantee shall constitute an agreement by Grantee to report such income in
accordance with then applicable law. Withholding for federal or state
income and employment tax purposes will be made, if and as required by
law, from Grantee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the
Company may require Grantee to make a cash payment to cover such
liability.
7. STAND-OFF AGREEMENT. Grantee agrees that, in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Grantee shall not sell, short any sale of, loan, grant
an option for, or otherwise dispose of any of the Shares (other than Shares
included in the offering) without the prior written consent of the Company or
such managing underwriter, as applicable, for a period of at least one year
following the effective date of registration of such offering. This Section 8
shall survive any termination of this Agreement.
8. TERMINATION OF AGREEMENT. This Agreement shall terminate on the
occurrence of any one of the following events: (a) written agreement of all
parties to that effect; (b) a proposed dissolution or liquidation of the
Company, a merger or consolidation in which the Company is not the surviving
entity, or a sale of all or substantially all of the assets of the Company; (c)
the closing of any public offering of common stock of the Company pursuant to an
effective registration statement under the Securities Act; or (d) dissolution,
bankruptcy, or insolvency of the Company.
9. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Grant is made pursuant
to the Plan and shall be interpreted to comply therewith. A copy of such Plan is
available to Grantee, at no charge, at the principal office of the Company. Any
provision of this Agreement inconsistent with the Plan shall be considered void
and replaced with the applicable provision of the Plan. This Grant shall be
governed by the laws of the State of Nevada and subject to the exclusive
jurisdiction of the courts therein.
10. MISCELLANEOUS.
(a) NOTICES. Any notice required to be given pursuant to this
Agreement or the Plan shall be in writing and shall be deemed to have been
duly delivered upon receipt or, in the case of notices by the Company,
five (5) days after deposit in the U.S. mail, postage prepaid, addressed
to Grantee at the last address provided by Grantee for use in the
Company's records.
(b) ENTIRE AGREEMENT. This instrument constitutes the sole agreement
of the parties hereto with respect to the Shares. Any prior agreements,
promises or representations concerning the Shares not included or
reference herein shall be of no force or effect. This Agreement shall be
binding on, and shall inure to the benefit of, the Parties hereto and
their respective transferees, heirs, legal representatives, successors,
and assigns.
(c) ENFORCEMENT. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Nevada and subject to the
exclusive jurisdiction of the courts located in St. Johns County, State of
Nevada. If Grantee attempts to transfer any of the Shares subject to this
Agreement, or any interest in them in violation of the terms of this
Agreement, the Company may apply to any court for an injunctive order
prohibiting such proposed transaction, and the Company may institute and
maintain proceedings against Grantee to compel specific performance of
this Agreement without the necessity of proving the existence or extent of
any damages to the Company. Any such attempted transaction shares in
violation of this Agreement shall be null and void.
C-5
(d) VALIDITY OF AGREEMENT. The provisions of this Agreement may be
waived, altered, amended, or repealed, in whole or in part, only on the
written consent of all parties hereto. It is intended that each Section of
this Agreement shall be viewed as separate and divisible, and in the event
that any Section shall be held to be invalid, the remaining Sections shall
continue to be in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: __________________________
Name: ________________________
Title: _______________________
GRANTEE: By: __________________________
(SIGNATURE)
Name: ________________________
(ONE OF THE FOLLOWING, AS APPROPRIATE, SHALL BE SIGNED)
I certify that as of the date By his or her signature, the spouse
hereof I am unmarried of Optionee hereby agrees to be bound
by the provisions of the foregoing
STOCK AWARD AGREEMENT
- ---------------------------------- -------------------------------------
Grantee Spouse of Grantee
EXHIBIT D
ONE VOICE TECHNOLOGIES, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
================================================================================
THIS RESTRICTED STOCK PURCHASE AGREEMENT ("AGREEMENT") is made and entered
into as of the date set forth below, by and between ONE VOICE TECHNOLOGIES,
INC., a Nevada corporation (the "COMPANY"), and the employee, director or
consultant of the Company named in Section 1(b). ("GRANTEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. Stock Purchase Information.
---------------------------
(a) Date of Agreement: ___________________________
(b) Grantee: ___________________________
(c) Number of Shares: ___________________________
(d) Purchase Price: ___________________________
2. Acknowledgements.
-----------------
(a) Grantee is a [EMPLOYEE/DIRECTOR/CONSULTANT] of the Company.
(b) The Company has adopted a 2005 Stock Incentive Plan (the "PLAN")
under which the Company's common stock ("STOCK") may be offered to
officers, employees, directors and consultants pursuant to an exemption
from registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT") provided by Section 4(2) thereunder.
(c) The Grantee desires to purchase shares of the Company's common
stock on the terms and conditions set forth herein.
3. PURCHASE OF SHARES. The Company hereby agrees to sell and Grantee
hereby agrees to purchase, upon and subject to the terms and conditions herein
stated, the number of shares of Stock set forth in Section 1(c) (the "SHARES"),
at the price per Share set forth in Section 1(d) (the "PRICE"). For the purpose
of this Agreement, the terms "SHARE" or "SHARES" shall include the original
Shares plus any shares derived therefrom, regardless of the fact that the
number, attributes or par value of such Shares may have been altered by reason
of any recapitalization, subdivision, consolidation, stock dividend or amendment
of the corporate charter of the Company. The number of Shares covered by this
Agreement shall be proportionately adjusted for any increase or decrease in the
number of issued shares resulting from a recapitalization, subdivision or
consolidation of shares or the payment of a stock dividend, or any other
increase or decrease in the number of such shares effected without receipt of
consideration by the Company.
4. INVESTMENT INTENT. Grantee represents and agrees that Grantee is
accepting the Shares for the purpose of investment and not with a view to, or
for resale in connection with, any distribution thereof; and that, if requested,
Grantee shall furnish to the Company a written statement to such effect,
satisfactory to the Company in form and substance. If the Shares are registered
under the Securities Act, Grantee shall be relieved of the foregoing investment
representation and agreement and shall not be required to furnish the Company
with the foregoing written statement.
5. RESTRICTION UPON TRANSFER. The Shares may not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated by the
Grantee except as hereinafter provided.
D-1
(a) Repurchase Right on Termination Other Than for Cause. For the
purposes of this Section, a "REPURCHASE EVENT" shall mean an occurrence of
one of (i) termination of Grantee's employment [OR SERVICE AS A
DIRECTOR/CONSULTANT] by the Company, voluntary or involuntary and with or
without cause; (ii) retirement or death of Grantee; (iii) bankruptcy of
Grantee, which shall be deemed to have occurred as of the date on which a
voluntary or involuntary petition in bankruptcy is filed with a court of
competent jurisdiction; (iv) dissolution of the marriage of Grantee, to
the extent that any of the Shares are allocated as the sole and separate
property of Grantee's spouse pursuant thereto (in which case, this Section
shall only apply to the Shares so affected); or (v) any attempted transfer
by the Grantee of Shares, or any interest therein, in violation of this
Agreement. Upon the occurrence of a Repurchase Event, the Company shall
have the right (but not an obligation) to repurchase all or any portion of
the Shares of Grantee at a price equal to the fair value of the Shares as
of the date of the Repurchase Event.
(b) Repurchase Right on Termination for Cause. In the event
Grantee's employment [OR SERVICE AS A DIRECTOR/CONSULTANT] is terminated
by the Company "FOR CAUSE" (as defined below), then the Company shall have
the right (but not an obligation) to repurchase Shares of Grantee at a
price equal to the Price. Such right of the Company to repurchase Shares
shall apply to 100% of the Shares for one (1) year from the date of this
Agreement; and shall thereafter lapse at the rate of twenty percent (20%)
of the Shares on each anniversary of the date of this Agreement. In
addition, the Company shall have the right, in the sole discretion of the
Board and without obligation, to repurchase upon termination for cause all
or any portion of the Shares of Grantee, at a price equal to the fair
value of the Shares as of the date of termination, which right is not
subject to the foregoing lapsing of rights. Termination of employment [OR
SERVICE AS A DIRECTOR/CONSULTANT] "FOR CAUSE" means (i) as to employees
and consultants, termination for cause as contemplated by Title 53 of the
Nevada Revised Statutes and case law related thereto, or as defined in the
Plan, this Agreement or in any employment [OR CONSULTING] agreement
between the Company and Grantee, or (ii) as to directors, removal pursuant
to the Nevada corporation law. In the event the Company elects to
repurchase the Shares, the stock certificates representing the same shall
forthwith be returned to the Company for cancellation.
(c) EXERCISE OF REPURCHASE RIGHT. Any Repurchase Right under
Paragraphs 4(a) or 4(b) shall be exercised by giving notice of exercise as
provided herein to Grantee or the estate of Grantee, as applicable. Such
right shall be exercised, and the repurchase price thereunder shall be
paid, by the Company within a ninety (90) day period beginning on the date
of notice to the Company of the occurrence of such Repurchase Event
(except in the case of termination of employment or retirement, where such
option period shall begin upon the occurrence of the Repurchase Event).
Such repurchase price shall be payable only in the form of cash (including
a check drafted on immediately available funds) or cancellation of
purchase money indebtedness of the Grantee for the Shares. If the Company
can not purchase all such Shares because it is unable to meet the
financial tests set forth in the Nevada corporation law, the Company shall
have the right to purchase as many Shares as it is permitted to purchase
under such sections. Any Shares not purchased by the Company hereunder
shall no longer be subject to the provisions of this Section 5.
(d) RIGHT OF FIRST REFUSAL. In the event Grantee desires to transfer
any Shares during his or her lifetime, Grantee shall first offer to sell
such Shares to the Company. Grantee shall deliver to the Company written
notice of the intended sale, such notice to specify the number of Shares
to be sold, the proposed purchase price and terms of payment, and grant
the Company an option for a period of thirty days following receipt of
such notice to purchase the offered Shares upon the same terms and
conditions. To exercise such option, the Company shall give notice of that
fact to Grantee within the thirty (30) day notice period and agree to pay
the purchase price in the manner provided in the notice. If the Company
does not purchase all of the Shares so offered during foregoing option
period, Grantee shall be under no obligation to sell any of the offered
Shares to the Company, but may dispose of such Shares in any lawful manner
during a period of one hundred and eighty (180) days following the end of
such notice period, except that Grantee shall not sell any such Shares to
any other person at a lower price or upon more favorable terms than those
offered to the Company.
(e) ACCEPTANCE OF RESTRICTIONS. Acceptance of the Shares shall
constitute the Grantee's agreement to such restrictions and the legending
of his certificates with respect thereto. Notwithstanding such
restrictions, however, so long as the Grantee is the holder of the Shares,
or any portion thereof, he shall be entitled to receive all dividends
declared on and to vote the Shares and to all other rights of a
shareholder with respect thereto.
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(f) PERMITTED TRANSFERS. Notwithstanding any provisions in this
Section 5 to the contrary, the Grantee may transfer Shares subject to this
Agreement to his or her parents, spouse, children, or grandchildren, or a
trust for the benefit of the Grantee or any such transferee(s); provided,
that such permitted transferee(s) shall hold the Shares subject to all the
provisions of this Agreement (all references to the Grantee herein shall
in such cases refer mutatis mutandis to the permitted transferee, except
in the case of clause (iv) of Section 5(a) wherein the permitted transfer
shall be deemed to be rescinded); and provided further, that
notwithstanding any other provisions in this Agreement, a permitted
transferee may not, in turn, make permitted transfers without the written
consent of the Grantee and the Company.
(g) RELEASE OF RESTRICTIONS ON SHARES. All rights and restrictions
under this Section 5 shall terminate five (5) years following the date
upon which the Company receives the full Price as set forth in Section 3,
or when the Company's securities are publicly traded, whichever occurs
earlier.
5. REPRESENTATIONS AND WARRANTIES OF THE GRANTEE. This Agreement and the
issuance and grant of the Shares hereunder is made by the Company in reliance
upon the express representations and warranties of the Grantee, which by
acceptance hereof the Grantee confirms that: (a) The Shares granted to him
pursuant to this Agreement are being acquired by him for his own account, for
investment purposes, and not with a view to, or for sale in connection with, any
distribution of the Shares. It is understood that the Shares have not been
registered under the Act by reason of a specific exemption from the registration
provisions of the Act which depends, among other things, upon the bona fide
nature of his representations as expressed herein;
(b) The Shares must be held by him indefinitely unless they are
subsequently registered under the Act and any applicable state securities
laws, or an exemption from such registration is available. The Company is
under no obligation to register the Shares or to make available any such
exemption; and
(c) Grantee further represents that Grantee has had access to the
financial statements or books and records of the Company, has had the
opportunity to ask questions of the Company concerning its business,
operations and financial condition and to obtain additional information
reasonably necessary to verify the accuracy of such information;
(d) Unless and until the Shares represented by this Grant are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution therefor
and any certificate for any securities issued pursuant to any stock split,
share reclassification, stock dividend or other similar capital event
shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE APPLICABLE OR
SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST
THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN RESTRICTED STOCK PURCHASE AGREEMENT DATED ____________
BETWEEN THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE
SHARES WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN
CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with
respect to the Shares have been placed with the Company's transfer agent.
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(e) Grantee understands that he or she will recognize income, for
Federal and state income tax purposes, in an amount equal to the amount by
which the fair market value of the Shares, as of the date of Grant,
exceeds the price paid by Grantee. The acceptance of the Shares by Grantee
shall constitute an agreement by Grantee to report such income in
accordance with then applicable law. Withholding for federal or state
income and employment tax purposes will be made, if and as required by
law, from Grantee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the
Company may require Grantee to make a cash payment to cover such
liability.
7. STAND-OFF AGREEMENT. Grantee agrees that, in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Grantee shall not sell, short any sale of, loan, grant
an option for, or otherwise dispose of any of the Shares (other than Shares
included in the offering) without the prior written consent of the Company or
such managing underwriter, as applicable, for a period of at least one year
following the effective date of registration of such offering. This Section 8
shall survive any termination of this Agreement.
8. TERMINATION OF AGREEMENT. This Agreement shall terminate on the
occurrence of any one of the following events: (a) written agreement of all
parties to that effect; (b) a proposed dissolution or liquidation of the
Company, a merger or consolidation in which the Company is not the surviving
entity, or a sale of all or substantially all of the assets of the Company; (c)
the closing of any public offering of common stock of the Company pursuant to an
effective registration statement under the Act; or (d) dissolution, bankruptcy,
or insolvency of the Company.
9. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Grant is made pursuant
to the Plan and shall be interpreted to comply therewith. A copy of such Plan is
available to Grantee, at no charge, at the principal office of the Company. Any
provision of this Agreement inconsistent with the Plan shall be considered void
and replaced with the applicable provision of the Plan. This Grant shall be
governed by the laws of the State of Nevada and subject to the exclusive
jurisdiction of the courts therein.
10. MISCELLANEOUS.
(a) NOTICES. Any notice required to be given pursuant to this
Agreement or the Plan shall be in writing and shall be deemed to have been
duly delivered upon receipt or, in the case of notices by the Company,
five (5) days after deposit in the U.S. mail, postage prepaid, addressed
to Grantee at the last address provided by Grantee for use in the
Company's records.
(b) ENTIRE AGREEMENT. This instrument constitutes the sole agreement
of the parties hereto with respect to the Shares. Any prior agreements,
promises or representations concerning the Shares not included or
reference herein shall be of no force or effect. This Agreement shall be
binding on, and shall inure to the benefit of, the Parties hereto and
their respective transferees, heirs, legal representatives, successors,
and assigns.
(c) ENFORCEMENT. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Nevada and subject to the
exclusive jurisdiction of the courts located in St. Johns County, State of
Nevada. If Grantee attempts to transfer any of the Shares subject to this
Agreement, or any interest in them in violation of the terms of this
Agreement, the Company may apply to any court for an injunctive order
prohibiting such proposed transaction, and the Company may institute and
maintain proceedings against Grantee to compel specific performance of
this Agreement without the necessity of proving the existence or extent of
any damages to the Company. Any such attempted transaction shares in
violation of this Agreement shall be null and void.
(d) VALIDITY OF AGREEMENT. The provisions of this Agreement may be
waived, altered, amended, or repealed, in whole or in part, only on the
written consent of all parties hereto. It is intended that each Section of
this Agreement shall be viewed as separate and divisible, and in the event
that any Section shall be held to be invalid, the remaining Sections shall
continue to be in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: ONE VOICE TECHNOLOGIES, INC.,
a Nevada corporation
By: __________________________
Name: ________________________
Title: _______________________
GRANTEE: By: __________________________
(SIGNATURE)
Name: ________________________
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