Exhibit 10.76
CHARLES & COLVARD,
LTD.
1997 OMNIBUS STOCK
PLAN
Employee Incentive Stock Option
Agreement
THIS AGREEMENT (together with
Schedule A, attached hereto, the “Agreement”),
effective as of the date specified as the Grant Date (the
“Grant Date”) on Schedule A, attached hereto, between
CHARLES & COLVARD, LTD., a North Carolina corporation (the
“Corporation”), and the individual identified on
Schedule A, an employee of the Corporation or a related corporation
(the “Participant”);
R E C I T A
L S :
In furtherance of the purposes of
the 1997 Omnibus Stock Plan of Charles & Colvard, Ltd., as
amended and restated and as it may be hereafter amended (the
“Plan”), the Corporation and the Participant hereby
agree as follows:
Incorporation of Plan
. The rights and duties of the
Corporation and the Participant under this Agreement shall in all
respects be subject to and governed by the provisions of the Plan,
a copy of which is delivered herewith or has been previously
provided to the Participant and the terms of which are incorporated
herein by reference. In the event of any conflict between the
provisions in the Agreement and those of the Plan, the provisions
of the Plan shall govern. Unless otherwise defined herein,
capitalized terms in this Agreement shall have the same definitions
as set forth in the Plan.
Grant of Option; Term of
Option . The Corporation
hereby grants to the Participant pursuant to the Plan, as a matter
of separate inducement and agreement in connection with his or her
employment with or service to the Corporation, and not in lieu of
any salary or other compensation for his or her services, the right
and Option (the “Option”) to purchase all or any part
of such aggregate number of shares (the “Shares”) of
common stock of the Corporation (the “Common Stock”) at
a purchase price (the “Option Price”) as specified on
Schedule A, and subject to such other terms and conditions as may
be stated herein or in the Plan or on Schedule A. The
Participant expressly acknowledges that the terms of Schedule A
shall be incorporated herein by reference and shall constitute part
of this Agreement. The Corporation and the Participant further
acknowledge and agree that the signatures of the Corporation and
the Participant on the Grant Notice contained in Schedule A shall
constitute their acceptance of all of the terms of this Agreement
and their agreement to be bound by the terms of this Agreement
. The Option (or any portion thereof) shall be designated as an
Incentive Option, as stated on Schedule A. To the extent that the
Option or any portion thereof is designated as an Incentive Option
and such Option does not qualify as an Incentive Option, the Option
or portion thereof shall be treated as a Nonqualified Option.
Except as otherwise provided in the Plan or this Agreement, this
Option will expire if not exercised in full by the Expiration Date
specified on Schedule A.
Exercise of Option
. Subject to the terms of the Plan
and this Agreement, the Option shall become exercisable on the date
or dates, and subject to such conditions, as are set forth on
Schedule A. To the extent that the Option is exercisable but is not
exercised, the Option shall accumulate and be exercisable by the
Participant in whole or in part at any time prior to expiration of
the Option, subject to the terms of the Plan and this Agreement.
The minimum number of Shares that may be purchased under the Option
at one time shall be ten (10). The Participant expressly
acknowledges that the Option may vest and be exercisable only upon
such terms and conditions as are provided in this Agreement
(including
the terms set forth in Schedule A) and the
Plan . Upon the exercise
of the Option in whole or in part and payment of the Option Price
in accordance with the provisions of the Plan and this Agreement,
the Corporation shall, as soon thereafter as practicable, deliver
to the Participant a certificate or certificates for the Shares
purchased. Payment of the Option Price may be made in the form: (i)
of cash; (ii) by delivery of shares of Common Stock owned by the
Participant at the time of exercise; (iii) by delivery of written
notice of exercise to the Corporation and delivery to a broker of
written notice of exercise and irrevocable instructions to promptly
deliver to the Corporation the amount of sale or loan proceeds to
pay the Option Price; or (iv) by any combination of the foregoing
methods. Notwithstanding the foregoing, in the event of a
“change of control” of the Corporation (as such term is
defined in the Plan), payment may also be made by the withholding
of shares of Common Stock otherwise deliverable upon exercise.
Shares delivered or withheld in payment on the exercise of the
Option shall be valued at their fair market value on the date of
exercise, as determined by the Committee by applying the provisions
of the Plan.
No Right of Employment or
Service . Neither the
Plan, this Agreement nor any other action related to the Plan shall
confer upon the Participant any right to continue in the employment
or service of the Corporation or a related corporation or interfere
with the right of the Corporation or a related corporation to
terminate the Participant’s employment or service at any
time. Except as otherwise expressly provided in the Plan or this
Agreement, all rights of the Participant with respect to the Option
shall terminate upon termination of the employment of the
Participant with the Corporation or a related
corporation.
Termination of
Employment . The Option
shall not be exercised unless the Participant is, at the time of
exercise, an employee or in service as described in the Plan and
has been an employee or in service continuously since the date the
Option was granted, subject to the following:
The Option shall not be affected by
any change in the terms, conditions or status of the
Participant’s employment or service, provided that the
Participant continues to be an employee of, or in service to, the
Corporation or a related corporation.
The employment or service
relationship of the Participant shall be treated as continuing
intact for any period that the Participant is on military or sick
leave or other bona fide leave of absence, provided that the period
of such leave does not exceed ninety days, or, if longer, as long
as the Participant’s right to reemployment or service is
guaranteed either by statute or by contract. The employment or
service relationship of the Participant shall also be treated as
continuing intact while the Participant is not in active service
because of disability. The Committee shall determine whether the
Participant is disabled and, if applicable, the date of the
Participant’s termination of employment or service (the
“termination date”).
If the employment or service of the
Participant is terminated because of disability or if the
Participant dies while he is an employee or in service or dies
after the termination of his employment or service because of
disability, the Option may be exercised only to the extent
exercisable on the Participant’s termination date. The Option
must be exercised, if at all, prior to the first to occur of the
following, whichever shall be applicable (X) the close of the
period of twelve months next succeeding the termination date; or
(Y) the close of the Option Period. In the event of the
Participant’s death, the Option shall be exercisable by such
person or persons as shall have acquired the right to exercise the
Option by will or by the laws of intestate succession.
If the employment or service of the
Participant is terminated for cause, the Option shall lapse and no
longer be exercisable as of his or her termination date, as
determined by the Committee. For purposes of the Agreement, the
Participant’s termination shall be for “cause”
if
such termination results from the
Participant’s personal dishonesty, gross incompetence,
willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of any law, rule, regulation (other than traffic
violations or similar offences), written Corporation policy or
final cease-and-desist order, conviction of a felony
