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2000-2001 STOCK OPTION PLAN
1. PURPOSE. The purpose of the ABACUS RESEARCH AND DEVELOPMENT, INC.
2000-2001 Stock Option Plan (the "Plan") is to strengthen ABACUS RESEARCH AND
DEVELOPMENT, INC., a Delaware corporation ("Corporation"), by providing to
employees, officers, directors, consultants and independent contractors of
the Corporation or any of its subsidiaries (including dealers, distributors,
and other business entities or persons providing services on behalf of the
Corporation or any of its subsidiaries) added incentive for high levels of
performance and unusual efforts to increase the earnings of the Corporation.
The Plan seeks to accomplish this purpose by enabling specified persons to
purchase shares of the common stock of the Corporation, $.001 par value,
thereby increasing their proprietary interest in the Corporation's success
and encouraging them to remain in the employ or service of the Corporation.
2. CERTAIN DEFINITIONS. As used in this Plan, the following words and
phrases shall have the respective meanings set forth below, unless the
context clearly indicates a contrary meaning:
2.1 "Board of Directors": The Board of Directors of the
Corporation.
2.2 "Committee": The Committee which shall administer the Plan
shall consist of the entire Board of Directors.
2.3 "Fair Market Value Per Share": The fair market value per
share of the Shares as determined by the Committee in good faith. The
Committee is authorized to make its determination as to the fair market value
per share of the Shares on the following basis: (i) if the Shares are traded
only otherwise than on a securities exchange and are not quoted on the
National Association of Securities Dealers' Automated Quotation System
("NASDAQ"), but are quoted on the bulletin board or in the "pink sheets"
published by the National Daily Quotation Bureau, the greater of (a) the
average of the mean between the average daily bid and average daily asked
prices of the Shares during the thirty (30) day period preceding the date of
grant of an Option, as quoted on the bulletin board or in the "pink sheets"
published by the National Daily Quotation Bureau, or (b) the mean between the
average daily bid and average daily asked prices of the Shares on the date of
grant, as published on the bulletin board or in such "pink sheets;" (ii) if
the Shares are traded only otherwise than on a securities exchange and are
quoted on NASDAQ, the greater of (a) the average of the mean between the
closing bid and closing asked prices of the Shares during the thirty (30) day
period preceding the date of grant of an Option, as reported by the Wall
Street Journal and (b) the mean between the closing bid and closing asked
prices of the Shares on the date of grant of an Option, as reported by the
Wall Street Journal; (iii) if the Shares are admitted to trading on a
securities exchange, the greater of (a) the average of the daily closing
prices of the Shares during the ten (10) trading days preceding the date of
grant of an Option, as quoted in the Wall Street Journal, or (b) the daily
closing price of the Shares on the date of grant of an Option, as quoted in
the Wall Street Journal; or (iv) if the Shares are traded only otherwise than
as described in (i), (ii) or (iii) above, or if the Shares are not publicly
traded, the value determined by the Committee in good faith based upon the
fair market value as determined by completely independent and well qualified
experts.
2.4 "Option": A stock option granted under the Plan.
2.5 "Incentive Stock Option": An Option intended to qualify for
treatment as an incentive stock option under Code Sections 421 and 422A, and
designated as an Incentive Stock Option.
2.6 "Nonqualified Option": An Option not qualifying as an
Incentive Stock Option.
2.7 "Optionee": The holder of an Option.
2.8 "Option Agreement": The document setting forth the terms and
conditions of each Option.
2.9 "Shares": The shares of common stock $.001 par value of the
Corporation. 2.10 "Code": The Internal Revenue Code of 1986, as
amended.
2.11 "Subsidiary": Any corporation of which fifty percent (50%) or
more of total combined voting power of all classes of stock of such
corporation is owned by the Corporation or another Subsidiary (as so
defined).
3. ADMINISTRATION OF PLAN.
3.1 In General. This Plan shall be administered by the Committee.
Any action of the Committee with respect to administration of the Plan shall
be taken pursuant to (i) a majority vote at a meeting of the Committee (to be
documented by minutes), or (ii) the unanimous written consent of its members.
3.2 Authority. Subject to the express provisions of this Plan,
the Committee shall have the authority to: (i) construe and interpret the
Plan, decide all questions and settle all controversies and disputes which
may arise in connection with the Plan and to define the terms used therein;
(ii) prescribe, amend and rescind rules and regulations relating to
administration of the Plan; (iii) determine the purchase price of the Shares
covered by each Option and the method of payment of such price, individuals
to whom, and the time or times at which, Options shall be granted and
exercisable and the number of Shares covered by each Option; (iv) determine
the terms and provisions of the respective Option Agreements (which need not
be identical); (v) determine the duration and purposes of leaves of absence
which may be granted to participants without constituting a termination of
their employment for purposes of the Plan; and (vi) make all other
determinations necessary or advisable to the administration of the Plan.
Determinations of the Committee on matters referred to in this Section 3
shall be conclusive and binding on all parties howsoever concerned. With
respect to Incentive Stock Options, the Committee shall administer the Plan
in compliance with the provisions of Code Section 422A as the same may
hereafter be amended from time to time. No member of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option.
4. ELIGIBILITY AND PARTICIPATION.
4.1 In General. Only officers, employees and directors who are
also employees of the Corporation or any Subsidiary shall be eligible to
receive grants of Incentive Stock Options. Officers, employees and directors
(whether or not they are also employees) of the Corporation or any
Subsidiary, as well as consultants, independent contractors or other service
providers of the Corporation or any Subsidiary shall be eligible to receive
grants of Nonqualified Options. Within the foregoing limits, the Committee,
from time to time, shall determine and designate persons to whom Options may
be granted. All such designations shall be made in the absolute discretion
of the Committee and shall not require the approval of the stockholders. In
determining (i) the number of Shares to be covered by each Option, (ii) the
purchase price for such Shares and the method of payment of such price
(subject to the other sections hereof), (iii) the individuals of the eligible
class to whom Options shall be granted, (iv) the terms and provisions of the
respective Option Agreements, and (v) the times at which such Options shall
be granted, the Committee shall take into account such factors as it shall
deem relevant in connection with accomplishing the purpose of the Plan as set
forth in Section 1. An individual who has been granted an Option may be
granted an additional Option or Options if the Committee shall so determine.
No Option shall be granted under the Plan after November 1, 2010, but Options
granted before such date may be exercisable after such date.
4.2 Certain Limitations. In no event shall Incentive Stock
Options be granted to an Optionee such that the sum of (i) aggregate fair
market value (determined at the time the Incentive Stock Options are granted)
of the Shares subject to all Options granted under the Plan which are
exercisable for the first time during the same calendar year, plus (ii) the
aggregate fair market value (determined at the time the options are granted)
of all stock subject to all other incentive stock options granted to such
Optionee by the Corporation, its parent and Subsidiaries which are
exercisable for the first time during such calendar year, exceeds One Hundred
Thousand Dollars ($100,000). For purposes of the immediately preceding
sentence, fair market value shall be determined as of the date of grant based
on the Fair Market Value Per Share as determined pursuant to Section 2.3.
5. AVAILABLE SHARES AND ADJUSTMENTS UPON CHANGES IN
CAPITALIZATION.
5.1 Shares. Subject to adjustment as provided in Section 5.2
below, the total number of Shares to be subject to Options granted pursuant
to this Plan shall not exceed Two Million Five Hundred Thousand (2,500,000)
Shares. Shares subject to the Plan may be either authorized but unissued
shares or shares that were once issued and subsequently reacquired by the
Corporation; the Committee shall be empowered to take any appropriate action
required to make Shares available for Options granted under this Plan. If
any Option is surrendered before exercise or lapses without exercise in full
or for any other reason ceases to be exercisable, the Shares reserved
therefore shall continue to be available under the Plan.
5.2 Adjustments. As used herein, the term "Adjustment Event"
means an event pursuant to which the outstanding Shares of the Corporation
are increased, decreased or changed into, or exchanged for a different number
or kind of shares or securities, without receipt of consideration by the
Corporation, through reorganization, merger, recapitalization,
reclassification, stock split, reverse stock split, stock dividend, stock
consolidation or otherwise. Upon the occurrence of an Adjustment Event,
(i) appropriate and proportionate adjustments shall be made to the number and
kind of shares and exercise price for the shares subject to the Options which
may thereafter be granted under this Plan, (ii) appropriate and proportionate
adjustments shall be made to the number and kind of and exercise price for
the shares subject to the then outstanding Options granted under this Plan,
and (iii) appropriate amendments to the Option Agreements shall be executed
by the Corporation and the Optionees if the Committee determines that such an
amendment is necessary or desirable to reflect such adjustments. If
determined by the Committee to be appropriate, in the event of an Adjustment
Event which involves the substitution of securities of a corporation other
than the Corporation, the Committee shall make arrangements for the
assumptions by such other corporation of any Options then or thereafter
outstanding under the Plan. Notwithstanding the foregoing, such adjustment
in an outstanding Option shall be made without change in the total exercise
price applicable to the unexercised portion of the Option, but with an
appropriate adjustment to the number of shares, kind of shares and exercise
price for each share subject to the Option. The determination by the
Committee as to what adjustments, amendments or arrangements shall be made
pursuant to this Section 5.2, and the extent thereof, shall be final and
conclusive. No fractional Shares shall be issued under the Plan on account
of any such adjustment or arrangement.
6. TERMS AND CONDITIONS OF OPTIONS.
6.1 Intended Treatment as Incentive Stock Options. Incentive
Stock Options granted pursuant to this Plan are intended to be "incentive
stock options" to which Code Sections 421 and 422A apply, and the Plan shall
be construed and administered to implement that intent. If all or any part
of an Incentive Stock Option shall not be an "incentive stock option" subject
to Sections 421 or 422A of the Code, such Option shall nevertheless be valid
and carried into effect. All Options granted under this Plan shall be
subject to the terms and conditions set forth in this Section 6 (except as
provided in Section 5.2) and to such other terms and conditions as the
Committee shall determine to be appropriate to accomplish the purpose of the
Plan as set forth in Section 1.
6.2 Amount and Payment of Exercise Price.
6.2.1 Exercise Price. The exercise price per Share for
each Share which the Optionee is entitled to purchase under a Nonqualified
Option shall be determined by the Committee but shall not be less than
eighty-five percent (85%) of the Fair Market Value Per Share on the date of
the grant of the Nonqualified Option. The exercise price per Share for each
Share which the Optionee is entitled to purchase under an Incentive Stock
Option shall be determined by the Committee but shall not be less than the
Fair Market Value Per Share on the date of the grant of the Incentive Stock
Option; provided, however, that the exercise price shall not be less than one
hundred ten percent (110%) of the Fair Market Value Per Share on the date of
the grant of the Incentive Stock Option in the case of an individual then
owning (within the meaning of Code Section 425(d)) more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Corporation or of its parent or Subsidiaries.
6.2.2 Payment of Exercise Price. The consideration to be
paid for the Shares to be issued upon exercise of an Option, including the
method of payment, shall be determined by the Committee and may consist of
promissory notes, shares of the common stock of the Corporation or such other
consideration and method of payment for the Shares as may be permitted under
applicable state and federal laws.
6.3 Exercise of Options.
6.3.1 Each Option granted under this Plan shall be
exercisable at such times and under such conditions as may be determined by
the Committee at the time of the grant of the Option and as shall be
permissible under the terms of the Plan; provided, however, in no event shall
an Option be exercisable after the expiration of ten (10) years from the date
it is granted, and in the case of an Optionee owning (within the meaning of
Code Section 425(d)), at the time an Incentive Stock Option is granted, more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Corporation or of its parent or Subsidiaries, such Incentive
Stock Option shall not be exercisable later than five (5) years after the
date of grant.
6.3.2 An Optionee may purchase less than the total number
of Shares for which the Option is exercisable, provided that a partial
exercise of an Option may not be for less than One Hundred (100) Shares and
shall not include any fractional shares.
6.4 Nontransferability of Options. All Options granted under this
Plan shall be nontransferable, either voluntarily or by operation of law,
otherwise than by will or the laws of descent and distribution, and shall be
exercisable during the Optionee's lifetime only by such Optionee.
6.5 Effect of Termination of Employment or Other Relationship.
Except as otherwise determined by the Committee in connection with the grant
of Nonqualified Options, the effect of termination of an Optionee's
employment or other relationship with the Corporation on such Optionee's
rights to acquire Shares pursuant to the Plan shall be as follows:
6.5.1 Termination for Other than Disability or Cause. If
an Optionee ceases to be employed by, or ceases to have a relationship with,
the Corporation for any reason other than for disability or cause, such
Optionee's Options shall expire not later than three (3) months thereafter.
During such three (3) month period and prior to the expiration of the Option
by its terms, the Optionee may exercise any Option granted to him, but only
to the extent such Options were exercisable on the date of termination of his
employment or relationship and except as so exercised, such Options shall
expire at the end of such three (3) month period unless such Options by their
terms expire before such date. The decision as to whether a termination for
a reason other than disability, cause or death has occurred shall be made by
the Committee, whose decision shall be final and conclusive, except that
employment shall not be considered terminated in the case of sick leave or
other bona fide leave of absence approved by the Corporation.
6.5.2 Disability. If an Optionee ceases to be employed
by, or ceases to have a relationship with, the Corporation by reason of
disability (within the meaning of Code Section 22(e)(3)), such Optionee's
Options shall expire not later than one (1) year thereafter. During such one
(1) year period and prior to the expiration of the Option by its terms, the
Optionee may exercise any Option granted to him, but only to the extent such
Options were exercisable on the date the Optionee ceased to be employed by,
or ceased to have a relationship with, the Corporation by reason of
disability and except as so exercised, such Options shall expire at the end
of such one (1) year period unless such Options by their terms expire before
such date. The decision as to whether a termination by reason of disability
has occurred shall be made by the Committee, whose decision shall be final
and conclusive.
6.5.3 Termination for Cause. If an Optionee's employment
by, or relationship with, the Corporation is terminated for cause, such
Optionee's Option shall expire immediately; provided, however, the Committee
may, in its sole discretion, within thirty (30) days of such termination,
waive the expiration of the Option by giving written notice of such waiver to
the Optionee at such Optionee's last known address. In the event of such
waiver, the Optionee may exercise the Option only to such extent, for such
time, and upon such terms and conditions as if such Optionee had ceased to be
employed by, or ceased to have a relationship with, the Corporation upon the
date of such termination for a reason other than disability, cause, or death.
Termination for cause shall include termination for malfeasance or gross
misfeasance in the performance of duties or conviction of illegal activity in
connection therewith or any conduct detrimental to the interests of the
Corporation. The determination of the Committee with respect to whether a
termination for cause has occurred shall be final and conclusive.
6.6 Withholding of Taxes. As a condition to the exercise, in
whole or in part, of any Options the Board of Directors may in its sole
discretion require the Optionee to pay, in addition to the purchase price of
the Shares covered by the Option an amount equal to any Federal, state or
local taxes that may be required to be withheld in connection with the
exercise of such Option.
6.7 No Rights to Continued Employment or Relationship.
Nothing contained in this Plan or in any Option Agreement shall obligate the
Corporation to employ or have another relationship with any Optionee for any
period or interfere in any way with the right of the Corporation to reduce
such Optionee's compensation or to terminate the employment of or
relationship with any Optionee at any time.
6.8 Time of Granting Options. The time an Option is granted,
sometimes referred to herein as the date of grant, shall be the day the
Corporation executes the Option Agreement; provided, however, that if
appropriate resolutions of the Committee indicate that an Option is to be
granted as of and on some prior or future date, the time such Option is
granted shall be such prior or future date.
6.9 Privileges of Stock Ownership. No Optionee shall be entitled
to the privileges of stock ownership as to any Shares not actually issued and
delivered to such Optionee. No Shares shall be purchased upon the exercise
of any Option unless and until, in the opinion of the Corporation's counsel,
any then applicable requirements of any laws or governmental or regulatory
agencies having jurisdiction and of any exchanges upon which the stock of the
Corporation may be listed shall have been fully complied with.
6.10 Securities Laws Compliance. The Corporation will diligently
endeavor to comply with all applicable securities laws before any Options are
granted under the Plan and before any Shares are issued pursuant to Options.
Without limiting the generality of the foregoing, the Corporation may require
from the Optionee such investment representation or such agreement, if any,
as counsel for the Corporation may consider necessary or advisable in order
to comply with the Securities Act of 1933 as then in effect, and may require
that the Optionee agree that any sale of the Shares will be made only in
such manner as is permitted by the Committee. The Committee in its
discretion may cause the Shares underlying the Options to be registered under
the Securities Act of 1933, as amended, by the filing of a Form S-8
Registration Statement covering the Options and Shares underlying such
Options. Optionee shall take any action reasonably requested by the
Corporation in connection with registration or qualification of the Shares
under federal or state securities laws.
6.11 Option Agreement. Each Incentive Stock Option and
Nonqualified Option granted under this Plan shall be evidenced by the
appropriate written Stock Option Agreement ("Option Agreement") executed by
the Corporation and the Optionee in a form substantially the same as the
appropriate form of Option Agreement attached as Exhibit I or II hereto (and
made a part hereof by this reference) and shall contain each of the
provisions and agreements specifically required to be contained therein
pursuant to this Section 6, and such other terms and conditions as are deemed
desirable by the Committee and are not inconsistent with the purpose of the
Plan as set forth in Section 1.
7. PLAN AMENDMENT AND TERMINATION.
7.1 Authority of Committee. The Committee may at any time
discontinue granting Options under the Plan or otherwise suspend, amend or
terminate the Plan and may, with the consent of an Optionee, make such
modification of the terms and conditions of such Optionee's Option as it
shall deem advisable; provided that, except as permitted under the provisions
of Section 5.2, the Committee shall have no authority to make any amendment
or modification to this Plan or any outstanding Option thereunder which
would: (i) increase the maximum number of shares which may be purchased
pursuant to Options granted under the Plan, either in the aggregate or by an
Optionee (except pursuant to Section 5.2); (ii) change the designation of the
class of the employees eligible to receive Incentive Stock Options;
(iii) extend the term of the Plan or the maximum Option period thereunder;
(iv) decrease the minimum Incentive Stock Option price or permit reductions
of the price at which shares may be purchased for Incentive Stock Options
granted under the Plan; or (v) cause Incentive Stock Options issued under the
Plan to fail to meet the requirements of incentive stock options under Code
Section 422A. An amendment or modification made pursuant to the provisions
of this Section 7 shall be deemed adopted as of the date of the action of the
Committee effecting such amendment or modification and shall be effective
immediately, unless otherwise provided therein, subject to approval thereof
(1) within twelve (12) months before or after the effective date by
stockholders of the Corporation holding not less than a majority vote of the
voting power of the Corporation voting in person or by proxy at a duly held
stockholders meeting when required to maintain or satisfy the requirements of
Code Section 422A with respect to Incentive Stock Options, and (2) by any
appropriate governmental agency. No Option may be granted during any
suspension or after termination of the Plan.
7.2 Ten (10) Year Maximum Term. Unless previously terminated by
the Committee, this Plan shall terminate on November 1, 2010, and no Options
shall be granted under the Plan thereafter.
7.3 Effect on Outstanding Options. Amendment, suspension or
termination of this Plan shall not, without the consent of the Optionee,
alter or impair any rights or obligations under any Option theretofore
granted.
8. EFFECTIVE DATE OF PLAN. This Plan shall be effective as of November
1, 2000, the date the Plan was adopted by the Board of Directors, subject to
the approval of the Plan by the affirmative vote of a majority of the issued
and outstanding Shares of common stock of the Corporation represented and
voting at a duly held meeting at which a quorum is present within twelve (12)
months thereafter. The Committee shall be authorized and empowered to make
grants of Options pursuant to this Plan prior to such approval of this Plan
by the stockholders; provided, however, in such event the Option grants shall
be made subject to the approval of both this Plan and such Option grants by
the stockholders in accordance with the provisions of this Section 8.
9. MISCELLANEOUS PROVISIONS.
9.1 Exculpation and Indemnification. The Corporation shall
indemnify and hold harmless the Committee from and against any and all
liabilities, costs and expenses incurred by such persons as a result of any
act, or omission to act, in connection with the performance of such persons'
duties, responsibilities and obligations under the Plan, other than such
liabilities, costs and expenses as may result from the gross negligence, bad
faith, willful conduct and/or criminal acts of such persons.
9.2 Governing Law. The Plan shall be governed and construed in
accordance with the laws of the State of Delaware and the Code.
9.3 Compliance with Applicable Laws. The inability of the
Corporation to obtain from any regulatory body having jurisdiction authority
deemed by the Corporation's counsel to be necessary to the lawful issuance
and sale of any Shares upon the exercise of an Option shall relieve the
Corporation of any liability in respect of the non-issuance or sale of such
Shares as to which such requisite authority shall not have been obtained.
As approved by the Board of Directors of
Abacus Research and Development, Inc. on
November 1, 2000.
By:__________________________
Secretary
EXHIBIT I
[FORM OF]
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") is entered into as
of , by and between ABACUS RESEARCH AND
DEVELOPMENT, INC., a Delaware corporation ("Corporation"), and
("Optionee").
R E C I T A L S
A. On November 1, 2000, the Board of Directors of the Corporation
adopted the ABACUS RESEARCH AND DEVELOPMENT, INC. 2000-2001 Stock Option Plan
(the "Plan").
B. Pursuant to the Plan, on ________________, the Board of Directors
of the Corporation acting as the Plan Committee ("Committee") authorized
granting to Optionee options to purchase shares of the common stock, $.001
par value, of the Corporation ("Shares") for the term and subject to the
terms and conditions hereinafter set forth.
A G R E E M E N T
It is hereby agreed as follows:
1. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the
context otherwise clearly requires, terms with initial capital letters used
herein shall have the meanings assigned to such terms in the Plan.
2. GRANT OF OPTIONS. The Corporation hereby grants to Optionee,
options ("Options") to purchase all or any part of Shares, upon
and subject to the terms and conditions of the Plan, which is incorporated in
full herein by this reference, and upon the other terms and conditions set
forth herein.
3. OPTION PERIOD. The Options shall be exercisable at any time during
the period commencing on the following dates (subject to the provisions of
Section 18) and expiring on the date ten (10) years from the date of grant,
unless earlier terminated pursuant to Section 7:
[terms of option vesting to be set forth here]
4. METHOD OF EXERCISE. The Options shall be exercisable by Optionee
by giving written notice to the Corporation of the election to purchase and
of the number of Shares Optionee elects to purchase, such notice to be
accompanied by such other executed instruments or documents as may be
required by the Committee pursuant to this Agreement, and unless otherwise
directed by the Committee, Optionee shall at the time of such exercise tender
the purchase price of the Shares he has elected to purchase. An Optionee may
purchase less than the total number of Shares for which the Option is
exercisable, provided that a partial exercise of an Option may not be for
less than One Hundred (100) Shares. If Optionee shall not purchase all of
the Shares which he is entitled to purchase under the Options, his right to
purchase the remaining unpurchased Shares shall continue until expiration of
the Options. The Options shall be exercisable with respect of whole Shares
only, and fractional Share interests shall be disregarded.
5. AMOUNT OF PURCHASE PRICE. The purchase price per Share for each
Share which Optionee is entitled to purchase under the Options shall be
per Share.
6. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or
bank cashier's check payable to the Corporation, the purchase price for all
Shares then being purchased. Provided, however, the Board of Directors may,
in its sole discretion, permit payment by the Corporation of the purchase
price in whole or in part with Shares. If the Optionee is so permitted, and
the Optionee elects to make payment with Shares, the Optionee shall deliver
to the Corporation certificates representing the number of Shares in payment
for new Shares, duly endorsed for transfer to the Corporation, together with
any written representations relating to title, liens and encumbrances,
securities laws, rules and regulatory compliance, or other matters,
reasonably requested by the Board of Directors. The value of Shares so
tendered shall be their Fair Market Value Per Share on the date of the
Optionee's notice of exercise.
7. EFFECT OF TERMINATION OF EMPLOYMENT. If an Optionee's employment
or other relationship with the Corporation (or a Subsidiary) terminates, the
effect of the termination on the Optionee's rights to acquire Shares shall be
as follows:
7.1 Termination for Other than Disability or Cause. If an
Optionee ceases to be employed by, or ceases to have a relationship with, the
Corporation or a Subsidiary for any reason other than for disability or
cause, such Optionee's Options shall expire not later than three (3) months
thereafter. During such three (3) month period and prior to the expiration
of the Option by its terms, the Optionee may exercise any Option granted to
him, but only to the extent such Options were exercisable on the date of
termination of his employment or relationship and except as so exercised,
such Options shall expire at the end of such three (3) month period unless
such Options by their terms expire before such date. The decision as to
whether a termination for a reason other than disability, cause or death has
occurred shall be made by the Committee, whose decision shall be final and
conclusive, except that employment shall not be considered terminated in the
case of sick leave or other bona fide leave of absence approved by the
Corporation.
7.2 Disability. If an Optionee ceases to be employed by, or
ceases to have a relationship with, the Corporation or a Subsidiary by reason
of disability (within the meaning of Code Section 22(e)(3)), such Optionee's
Options shall expire not later than one (1) year thereafter. During such
one (1) year period and prior to the expiration of the Option by its terms,
the Optionee may exercise any Option granted to him, but only to the extent
such Options were exercisable on the date the Optionee ceased to be employed
by, or ceased to have a relationship with, the Corporation or Subsidiary by
reason of disability. The decision as to whether a termination by reason of
disability has occurred shall be made by the Committee, whose decision shall
be final and conclusive.
7.3 Termination for Cause. If an Optionee's employment by, or
relationship with, the Corporation or a Subsidiary is terminated for cause,
such Optionee's Option shall expire immediately; provided, however, the
Committee may, in its sole discretion, within thirty (30) days of such
termination, waive the expiration of the Option by giving written notice of
such waiver to the Optionee at such Optionee's last known address. In the
event of such waiver, the Optionee may exercise the Option only to such
extent, for such time, and upon such terms and conditions as if such Optionee
had ceased to be employed by, or ceased to have a relationship with, the
Corporation or a Subsidiary upon the date of such termination for a reason
other than disability, cause or death. Termination for cause shall include
termination for malfeasance or gross misfeasance in the performance of duties
or conviction of illegal activity in connection therewith or any conduct
detrimental to the interests of the Corporation or a Subsidiary. The
determination of the Committee with respect to whether a termination for
cause has occurred shall be final and conclusive.
8. NONTRANSFERABILITY OF OPTIONS. The Options shall not be
transferable, either voluntarily or by operation of law, otherwise than by
will or the laws of descent and distribution and shall be exercisable during
the Optionee's lifetime only by Optionee.
9. ADDITIONAL RESTRICTIONS REGARDING DISPOSITIONS OF SHARES. The
Shares acquired pursuant to the exercise of Options shall be subject to the
restrictions set forth in Exhibit "A" attached hereto and incorporated herein
as if fully set forth.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. As used herein, the
term "Adjustment Event" means an event pursuant to which the outstanding
Shares of the Corporation are increased, decreased or changed into, or
exchanged for a different number or kind of shares or securities, without
receipt of consideration by the Corporation, through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an
Adjustment Event, (i) appropriate and proportionate adjustments shall be made
to the number and kind and exercise price for the shares subject to the
Options, and (ii) appropriate amendments to this Agreement shall be executed
by the Corporation and Optionee if the Committee determines that such an
amendment is necessary or desirable to reflect such adjustments. If
determined by the Committee to be appropriate, in the event of an Adjustment
Event which involves the substitution of securities of a corporation other
than the Corporation, the Committee shall make arrangements for the
assumptions by such other corporation of the Options. Notwithstanding the
<PAGE.
foregoing, any such adjustment to the Options shall be made without change in
the total exercise price applicable to the unexercised portion of the
Options, but with an appropriate adjustment to the number of shares, kind of
shares and exercise price for each share subject to the Options. The
determination by the Committee as to what adjustments, amendments or
arrangements shall be made pursuant to this Section 10, and the extent
thereof, shall be final and conclusive. No fractional Shares shall be
issued on account of any such adjustment or arrangement.
11. NO RIGHTS TO CONTINUED EMPLOYMENT OR RELATIONSHIP. Nothing
contained in this Agreement shall obligate the Corporation to employ or have
another relationship with Optionee for any period or interfere in any way
with the right of the Corporation to reduce Optionee's compensation or to
terminate the employment of or relationship with Optionee at any time.
12. TIME OF GRANTING OPTIONS. The time the Options shall be deemed
granted, sometimes referred to herein as the "date of grant," shall be
.
13. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled to
the privileges of stock ownership as to any Shares not actually issued and
delivered to Optionee. No Shares shall be purchased upon the exercise of any
Options unless and until, in the opinion of the Corporation's counsel, any
then applicable requirements of any laws, or governmental or regulatory
agencies having jurisdiction, and of any exchanges upon which the stock of
the Corporation may be listed shall have been fully complied with.
14. SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any stock is
issued pursuant to the Options. Without limiting the generality of the
foregoing, the Corporation may require from the Optionee such investment
representation or such agreement, if any, as counsel for the Corporation may
consider necessary in order to comply with the Securities Act of 1933 as then
in effect, and may require that the Optionee agree that any sale of the
Shares will be made only in such manner as is permitted by the Committee.
The Committee may in its discretion cause the Shares underlying the Options
to be registered under the Securities Act of 1933 as amended by filing a Form
S-8 Registration Statement covering the Options and the Shares underlying the
Options. Optionee shall take any action reasonably requested by the
Corporation in connection with registration or qualification of the Shares
under federal or state securities laws.
15. INTENDED TREATMENT AS INCENTIVE STOCK OPTIONS. The Options granted
herein are intended to be "incentive stock options" to which Sections 421 and
422A of the Internal Revenue Code of 1986, as amended from time to time
("Code") apply, and shall be construed to implement that intent. If all or
any part of the Options shall not be subject to Sections 421 and 422A of the
Code, the Options shall nevertheless be valid and carried into effect.
16. PLAN CONTROLS. The Options shall be subject to and governed by the
provisions of the Plan. All determinations and interpretations of the Plan
made by the Committee shall be final and conclusive.
17. SHARES SUBJECT TO LEGEND. If deemed necessary by the Corporation's
counsel, all certificates issued to represent Shares purchased upon exercise
of the Options shall bear such appropriate legend conditions as counsel for
the Corporation shall require.
18. CONDITIONS TO OPTIONS.
18.1 Compliance with Applicable Laws. THE CORPORATION'S OBLIGATION
TO ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS EXPRESSLY
CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY REGISTRATION OR
OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR
RULINGS OR REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY, OR THE MAKING OF
SUCH INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND UNDERTAKINGS BY
THE OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN ORDER TO COMPLY
WITH THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL, IN ITS SOLE
DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND
UNDERTAKINGS MAY INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE OR
ANY PERSON ENTITLED TO EXERCISE THE OPTION (i) IS NOT PURCHASING SUCH SHARES
FOR DISTRIBUTION AND (ii) AGREES TO HAVE PLACED UPON THE FACE AND REVERSE OF
ANY CERTIFICATES A LEGEND SETTING FORTH ANY REPRESENTATIONS AND UNDERTAKINGS
WHICH HAVE BEEN GIVEN TO THE COMMITTEE OR A REFERENCE THERETO.
18.2 SHAREHOLDER APPROVAL OF PLAN. IF THE OPTIONS GRANTED HEREBY
ARE GRANTED PRIOR TO APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE
CORPORATION PURSUANT TO SECTION 8 OF THE PLAN, THE GRANT OF THE OPTIONS MADE
HEREBY IS EXPRESSLY CONDITIONED UPON AND SUCH OPTIONS SHALL NOT BE
EXERCISABLE UNTIL THE APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE
CORPORATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE PLAN.
18.3 Maximum Exercise Period. Notwithstanding any provision of
this Agreement to the contrary, the Options shall expire no later than ten
years from the date hereof or five years if, as of the date hereof, the
Optionee owns or is considered to own by reason of Code Section 425(d) more
than 10% of the total combined voting power of all classes of stock of the
Corporation or any Subsidiary or parent corporation of the Corporation.
19. MISCELLANEOUS.
19.1 Binding Effect. This Agreement shall bind and inure to the
benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
19.2 Further Acts. Each party agrees to perform any further acts
and execute and deliver any documents which may be necessary to carry out the
provisions of this Agreement.
19.3 Amendment. This Agreement may be amended at any time by the
written agreement of the Corporation and the Optionee.
19.4 Syntax. Throughout this Agreement, whenever the context so
requires, the singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders. The headings and captions of
the various Sections hereof are for convenience only and they shall not
limit, expand or otherwise affect the construction or interpretation of this
Agreement.
19.5 Choice of Law. The parties hereby agree that this Agreement
has been executed and delivered in the State of Delaware and shall be
construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree
that any uncertainty or ambiguity existing herein shall not be interpreted
against either of them.
19.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be
construed to have any effect on, the remaining provisions of this Agreement.
19.7 Notices. All notices and demands between the parties hereto
shall be in writing and shall be served either by registered or certified
mail, and such notices or demands shall be deemed given and made forty-eight
(48) hours after the deposit thereof in the United States mail, postage
prepaid, addressed to the party to whom such notice or demand is to be given
or made, and the issuance of the registered receipt therefor. If served by
telegraph, such notice or demand shall be deemed given and made at the time
the telegraph agency shall confirm to the sender, delivery thereof to the
addressee. All notices and demands to Optionee or the Corporation may be
given to them at the following addresses:
If to Optionee:
If to Corporation: ABACUS RESEARCH AND DEVELOPMENT
1650 University Blvd NE, Suite 4-101
Albuquerque, NM 87102
Such parties may designate in writing from time to time such other place or
places that such notices and demands may be given.
19.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations
or other agreements between the parties in connection with the subject
matter hereof except as set forth or referred to herein. No supplement,
modification or waiver or termination of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall constitute a waiver of any
other provision hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
19.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in
each respective such action or proceeding shall be entitled, in addition to
any and all other relief granted by a court or other tribunal or body, as may
be appropriate, to an award in such action or proceeding of that sum of money
which represents the attorneys' fees reasonably incurred by the prevailing
party therein in filing or otherwise instituting and in prosecuting or
otherwise pursuing or defending such action or proceeding, and, additionally,
the attorneys' fees reasonably incurred by such prevailing party in
negotiating any and all matters underlying such action or proceeding and in
preparation for instituting or defending such action or proceeding.
IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date first set forth above.
"CORPORATION"
ABACUS RESEARCH AND DEVELOPMENT, INC.
a Delaware corporation
By:
Secretary
"OPTIONEE"
EXHIBIT II
[FORM OF]
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement") is entered into
as of , by and between ABACUS RESEARCH AND
DEVELOPMENT, INC., a Delaware corporation ("Corporation"), and
____________________ ("Optionee").
R E C I T A L S
A. On November 1, 2000, the Board of Directors of the Corporation
adopted, subject to the approval of the Corporation's shareholders, the
Abacus Research and Development, Inc. 2000-2001 Stock Option Plan (the
"Plan").
B. Pursuant to the Plan, on , the Board of
Directors of the Corporation acting as the Plan Committee ("Committee")
authorized granting to Optionee options to purchase shares of the common
stock, $.001 par value, of the Corporation ("Shares") for the term and
subject to the terms and conditions hereinafter set forth.
A G R E E M E N T
It is hereby agreed as follows:
1. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the
context otherwise clearly requires, terms with initial capital letters used
herein shall have the meanings assigned to such terms in the Plan.
2. GRANT OF OPTIONS. The Corporation hereby grants to Optionee,
options ("Options") to purchase all or any part of __________ Shares, upon
and subject to the terms and conditions of the Plan, which is incorporated in
full herein by this reference, and upon the other terms and conditions set
forth herein.
3. OPTION PERIOD. The Options shall be exercisable at any time during
the period commencing on the following dates (subject to the provisions of
Section 18) and expiring on the date five (5) years from the date of grant,
unless earlier terminated pursuant to Section 7:
[Terms of vesting to be set forth here]
4. METHOD OF EXERCISE. The Options shall be exercisable by Optionee
by giving written notice to the Corporation of the election to purchase and
of the number of Shares Optionee elects to purchase, such notice to be
accompanied by such other executed instruments or documents as may be
required by the Committee pursuant to this Agreement, and unless otherwise
directed by the Committee, Optionee shall at the time of such exercise tender
the purchase price of the Shares he has elected to purchase. An Optionee may
purchase less than the total number of Shares for which the Option is
exercisable, provided that a partial exercise of an Option may not be for
less than One Hundred (100) Shares. If Optionee shall not purchase all of
the Shares which he is entitled to purchase under the Options, his right to
purchase the remaining unpurchased Shares shall continue until expiration of
the Options. The Options shall be exercisable with respect of whole Shares
only, and fractional Share interests shall be disregarded.
5. AMOUNT OF PURCHASE PRICE. The purchase price per Share for each
Share which Optionee is entitled to purchase under the Options shall be $
per Share.
6. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or
bank cashier's check payable to the Corporation, the purchase price for all
Shares then being purchased. Provided, however, the Board of Directors may,
in its sole discretion, permit payment by the Corporation of the purchase
price in whole or in part with Shares. If the Optionee is so permitted, and
the Optionee elects to make payment with Shares, the Optionee shall deliver
to the Corporation certificates representing the number of Shares in payment
for new Shares, duly endorsed for transfer to the Corporation, together with
any written representations relating to title, liens and encumbrances,
securities laws, rules and regulatory compliance, or other matters,
reasonably requested by the Board of Directors. The value of Shares so
tendered shall be their Fair Market Value Per Share on the date of the
Optionee's notice of exercise.
7. EFFECT OF TERMINATION OF RELATIONSHIP OR DEATH. If Optionee's
relationship with the Corporation as a director terminates (whether
voluntarily or involuntarily because he is not re-elected by the
shareholders), or if optionee dies, all options which have previously vested
shall expire six (6) months thereafter. All unvested options shall laps and
automatically expire. During such six (6) month period (or such shorter
period prior to the expiration of the Option by its own terms), such Options
may be exercised by the Optionee, his executor or administrator or the person
or persons to whom the Option is transferred by will or the applicable laws
of descent and distribution, as the case may be, but only to the extent such
Options were exercisable on the date Optionee ceased to have a relationship
with the Corporation as a director or died.
8. NONTRANSFERABILITY OF OPTIONS. The Options shall not be
transferable, either voluntarily or by operation of law, otherwise than by
will or the laws of descent and distribution and shall be exercisable during
the Optionee's lifetime only by Optionee.
9. ADDITIONAL RESTRICTIONS REGARDING DISPOSITIONS OF SHARES. The
Shares acquired pursuant to the exercise of Options shall be subject to the
restrictions set forth in Exhibit "A" attached hereto and incorporated herein
as if fully set forth.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. As used herein, the
term "Adjustment Event" means an event pursuant to which the outstanding
Shares of the Corporation are increased, decreased or changed into, or
exchanged for a different number or kind of shares or securities, without
receipt of consideration by the Corporation, through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an
Adjustment Event, (i) appropriate and proportionate adjustments shall be made
to the number and kind and exercise price for the shares subject to the
Options, and (ii) appropriate amendments to this Agreement shall be executed
by the Corporation and Optionee if the Committee determines that such an
amendment is necessary or desirable to reflect such adjustments. If
determined by the Committee to be appropriate, in the event of an Adjustment
Event which involves the substitution of securities of a corporation other
than the Corporation, the Committee shall make arrangements for the
assumptions by such other corporation of the Options. Notwithstanding the
foregoing, any such adjustment to the Options shall be made without change in
the total exercise price applicable to the unexercised portion of the
Options, but with an appropriate adjustment to the number of shares, kind of
shares and exercise price for each share subject to the Options. The
determination by the Committee as to what adjustments, amendments or
arrangements shall be made pursuant to this Section 10, and the extent
thereof, shall be final and conclusive. No fractional Shares shall be issued
on account of any such adjustment or arrangement.
11. NO RIGHTS TO CONTINUED EMPLOYMENT OR RELATIONSHIP. Nothing
contained in this Agreement shall obligate the Corporation to employ or have
another relationship with Optionee for any period or interfere in any way
with the right of the Corporation to reduce Optionee's compensation or to
terminate the employment of or relationship with Optionee at any time.
12. TIME OF GRANTING OPTIONS. The time the Options shall be deemed
granted, sometimes referred to herein as the "date of grant," shall be
.
13. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled to
the privileges of stock ownership as to any Shares not actually issued and
delivered to Optionee. No Shares shall be purchased upon the exercise of any
Options unless and until, in the opinion of the Corporation's counsel, any
then applicable requirements of any laws, or governmental or regulatory
agencies having jurisdiction, and of any exchanges upon which the stock of
the Corporation may be listed shall have been fully complied with.
14. SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any stock is
issued pursuant to the Options. Without limiting the generality of the
foregoing, the Corporation may require from the Optionee such investment
representation or such agreement, if any, as counsel for the Corporation may
consider necessary in order to comply with the Securities Act of 1933 as then
in effect, and may require that the Optionee agree that any sale of the
Shares will be made only in such manner as is permitted by the Committee.
The Committee may in its discretion cause the Shares underlying the Options
to be registered under the Securities Act of 1933 as amended by filing a Form
S-8 Registration Statement covering the Options and the Shares underlying the
Options. Optionee shall take any action reasonably requested by the
Corporation in connection with registration or qualification of the Shares
under federal or state securities laws.
15. INTENDED TREATMENT AS NON-QUALIFIED STOCK OPTIONS. The Options
granted herein are intended to be non-qualified stock options described in
U.S. Treasury Regulation ("Treas. Reg.") ?1.83-7 to which Sections 421 and
422A of the Internal Revenue Code of 1986, as amended from time to time
("Code") do not apply, and shall be construed to implement that intent. If
all or any part of the Options shall not be described in Treas. Reg. ?1.83-7
or be subject to Sections 421 and 422A of the Code, the Options shall
nevertheless be valid and carried into effect.
16. PLAN CONTROLS. The Options shall be subject to and governed by the
provisions of the Plan. All determinations and interpretations of the Plan
made by the Committee shall be final and conclusive.
17. SHARES SUBJECT TO LEGEND. If deemed necessary by the Corporation's
counsel, all certificates issued to represent Shares purchased upon exercise
of the Options shall bear such appropriate legend conditions as counsel for
the Corporation shall require.
18. CONDITIONS TO OPTIONS.
18.1 Compliance with Applicable Laws. THE CORPORATION'S OBLIGATION
TO ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS
EXPRESSLY CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY
REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR
FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY,
OR THE MAKING OF SUCH INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND
UNDERTAKINGS BY THE OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN
ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH
REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE
SHALL, IN ITS SOLE DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED
REPRESENTATIONS AND UNDERTAKINGS MAY INCLUDE REPRESENTATIONS AND AGREEMENTS
THAT THE OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION (i) IS NOT
PURCHASING SUCH SHARES FOR DISTRIBUTION AND (ii) AGREES TO HAVE PLACED UPON
THE FACE AND REVERSE OF ANY CERTIFICATES A LEGEND SETTING FORTH ANY
REPRESENTATIONS AND UNDERTAKINGS WHICH HAVE BEEN GIVEN TO THE COMMITTEE OR A
REFERENCE THERETO.
18.2 SHAREHOLDER APPROVAL OF PLAN. IF THE OPTIONS GRANTED HEREBY
ARE GRANTED PRIOR TO APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE
CORPORATION PURSUANT TO SECTION 8 OF THE PLAN, THE GRANT OF THE OPTIONS MADE
HEREBY IS EXPRESSLY CONDITIONED UPON AND SUCH OPTIONS SHALL NOT BE
EXERCISABLE UNTIL THE APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE
CORPORATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE PLAN.
19. MISCELLANEOUS.
19.1 Binding Effect. This Agreement shall bind and inure to the
benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
19.2 Further Acts. Each party agrees to perform any further acts
and execute and deliver any documents which may be necessary to carry out the
provisions of this Agreement.
19.3 Amendment. This Agreement may be amended at any time by the
written agreement of the Corporation and the Optionee.
19.4 Syntax. Throughout this Agreement, whenever the context so
requires, the singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders. The headings and captions of
the various Sections hereof are for convenience only and they shall not
limit, expand or otherwise affect the construction or interpretation of this
Agreement.
19.5 Choice of Law. The parties hereby agree that this Agreement
has been executed and delivered in the State of Delaware and shall be
construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree
that any uncertainty or ambiguity existing herein shall not be interpreted
against either of them.
19.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be
construed to have any effect on, the remaining provisions of this Agreement.
19.7 Notices. All notices and demands between the parties hereto
shall be in writing and shall be served either by registered or certified
mail, and such notices or demands shall be deemed given and made forty-eight
(48) hours after the deposit thereof in the United States mail, postage
prepaid, addressed to the party to whom such notice or demand is to be given
or made, and the issuance of the registered receipt therefor. If served by
telegraph, such notice or demand shall be deemed given and made at the time
the telegraph agency shall confirm to the sender, delivery thereof to the
addressee. All notices and demands to Optionee or the Corporation may be
given to them at the following addresses:
If to Optionee: _________________________
_________________________
_________________________
If to Corporation: Abacus Research and Development, Inc.
1650 University Blvd. NE Suite 4-101
Albuquerque, NM 87102
Such parties may designate in writing from time to time such other place or
places that such notices and demands may be given.
19.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations
or other agreements between the parties in connection with the subject matter
hereof except as set forth or referred to herein. No supplement,
modification or waiver or termination of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall constitute a waiver of any
other provision hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
19.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in
each respective such action or proceeding shall be entitled, in addition to
any and all other relief granted by a court or other tribunal or body, as may
be appropriate, to an award in such action or proceeding of that sum of money
which represents the attorneys' fees reasonably incurred by the prevailing
party therein in filing or otherwise instituting and in prosecuting or
otherwise pursuing or defending such action or proceeding, and, additionally,
the attorneys' fees reasonably incurred by such prevailing party in
negotiating any and all matters underlying such action or proceeding and in
preparation for instituting or defending such action or proceeding.
IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date first set forth above.
"CORPORATION"
ABACUS RESEARCH AND DEVELOPMENT, INC.
a Delaware corporation
By:
Secretary
"OPTIONEE"