IFTH ACQUISITION CORP.
STOCK OPTION AGREEMENT
(NON-PLAN)
THIS STOCK OPTION AGREEMENT
(the “Stock Option
Agreement”) is entered into as of the
day of
, by and between IFTH Acquisition Corp., a Delaware corporation
(the “Company”) and
(the “Grantee”).
WHEREAS , the Company has determined that it is in the
best interests of the Company to grant to the Grantee a stock
option covering shares of the common stock of the Company (the
“Common Stock”) to be issued outside of any Company
stock option plan; and
WHEREAS , the Grantee desires to accept the stock option
and agrees to be bound by the terms and conditions of this Stock
Option Agreement.
NOW, THEREFORE , in consideration of the premises and mutual
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Grantee agree as
follows:
1. Grant of Option . The
Company, subject to the terms and conditions of this Stock Option
Agreement, hereby grants to the Grantee, effective
(the “Grant Date”), the right to purchase from the
Company at a price of $
per share (the “Exercise Price”) an aggregate of
shares of Common Stock (the “Option”), purchasable as
set forth in, and subject to the terms and conditions of, this
Stock Option Agreement.
2. Administration of Option
. The Board of Directors of the Company (the
“Board”) shall administer the Option. The Board shall
have the authority, in its sole and absolute discretion, to
construe and interpret the terms of this Stock Option Agreement,
and to make all other determinations deemed necessary or advisable
for administering this Stock Option Agreement. Each determination,
interpretation and other action made or taken pursuant to the
provisions of this Stock Option Agreement by the Board in good
faith shall be final, conclusive and binding for all purposes and
upon all persons, including, without limitation, the Grantee and
the Company, and their respective heirs, executors, administrators,
personal representatives and other successors in
interest.
3. Vesting and Exercisability of
Option . Subject to the limitations on exercise in
Section 8 of this Stock Option Agreement, the Grantee’s
interest in the Option shall vest and be exercisable immediately on
the Grant Date.
4. Term of Option . The
Option shall expire and terminate and cease to be exercisable with
respect to any shares of Common Stock at 5:00 p.m. on
.
(a) The Option may be exercised by
delivering to the Company a written or electronic notice of the
Grantee’s intention to exercise the Option, which shall set
forth, inter alia, (1) the Grantee’s election to
exercise the Option, (2) the number of full shares of Common
Stock being purchased, (3) at the request of the Company, any
representations, warranties and agreements regarding the
Grantee’s investment intent and access to information as may
be required by the Company to comply with applicable securities
laws, and (4) payment in full of the aggregate Exercise
Price.
(b) The Option may not be exercised unless
such exercise is in compliance with all applicable federal and
state securities law, as they are in effect on the date of
exercise.
(c) Payment of the aggregate Exercise Price
and any applicable withholding taxes may be made by one of the
following methods:
(i) By cash, certified or cashiers’
check, bank draft or money order; or
(ii) Through a “cashless exercise
sale and remittance procedure” pursuant to which the Grantee
shall concurrently provide irrevocable instructions (1) to a
brokerage firm approved by the Company to effect the immediate sale
of the purchased shares and remit to the Company, out of the sales
proceeds available on the settlement date, sufficient funds to
cover the aggregate Exercise Price payable through the purchased
shares plus applicable federal, state and local income, employment,
excise, foreign and other taxes required to be withheld by the
Company by reason of such exercise and (2) to the Company to
deliver the certificates for the purchased shares directly to such
brokerage firm in order to complete the sale.
6. Nontransferability of Option
. The Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process, except that
the Option may be transferred in whole or in part by will or the
laws of descent and distribution.
7. Shares; Adjustment Provisions
.
(a) Shares of Common Stock to be issued
under this Stock Option Agreement shall be made available, at the
discretion of the Board, either from authorized but unissued
shares, from issued shares reacquired by the Company or from shares
purchased by the Company on the open market specifically for this
purpose.
(b) The existence of this Stock Option
Agreement and the Option granted hereunder shall not affect in any
way the right or power of the Board or the stockholders of the
Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company’s capital
structure or its business, any merger or consolidation of the
Company or any affiliate, any issue of bonds, debentures, preferred
or prior preference stocks ahead of or affecting the shares of
Common Stock, the authorization or issuance of additional shares of
Common Stock, the dissolution or liquidation of the Company or any
affiliate or sale or transfer of all or part of the assets or
business of the Company or any affiliate, or any other corporate
act or proceeding.
2
(c) If there is any change in the Common
Stock of the Company by reason of any stock dividend, spin-off,
split-up, spin-out, recapitalization, merger, consolidation,
reorganization, combination or exchange of shares, or otherwise,
the number of shares subject to this Option and the Exercise Price
thereof, as applicable, shall be appropriately adjusted by the
Board.
(a) Notwithstanding anything herein to the
contrary, in no event will the Grantee be entitled to exercise any
portion of the Option in excess of that portion of any stock
options of the Company issued to Grantee that, upon exercise, the
sum of which (i) the number of shares of common stock of the
Company beneficially owned by Grantee (other than shares of common
stock that may be deemed beneficially owned through the ownership
of the unexercised portion of any stock options of the Company
issued to Grantee o
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