NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SHARES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. NEITHER THE
SECURITIES REPRESENTED HEREBY MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED NOR MAY THE SHARES BE ISSUED UPON EXERCISE UNLESS SUCH SECURITIES AND
SHARES ARE REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH SALE, TRANSFER, PLEDGE OR ISSUANCE IS EXEMPT FROM REGISTRATION.
SYSCAN IMAGING, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), is made as of this ___
day of ____ 2005 by and between Syscan Imaging, Inc., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxxx ("Optionee").
R E C I T A L
On February 16, 2005, in connection with the execution of an employment
agreement between the Company and Optionee, the Company's Board of Directors
authorized the grant to Optionee of an option to purchase the number of shares
of common stock (the "Common Shares") of the Company specified in Paragraph 1
hereof, at the price specified therein, such option to be for the term and upon
the terms and conditions hereinafter stated. The Board of Directors, or such
other committee or individual that the Board of Directors appoints, shall be the
"Administrator" for purposes of this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and of the
undertakings of the parties hereto contained herein, it is hereby agreed:
1. Number of Shares; Option Price. Pursuant to said action of the Board
of Directors, the Company hereby grants to Optionee the option ("Option") to
purchase, upon and subject to the terms and conditions hereof, 800,000 Common
Shares of the Company at the price of $0.01 per share ("Exercise Price").
2. Term. This Option shall expire on the day before the seventh
anniversary of the date hereof (the "Expiration Date") unless such Option shall
have been terminated prior to that date in accordance with the provisions of
this Agreement. The term "Affiliate" as used herein shall have the meaning as
set forth in the Federal Securities laws of the United States.
3. Shares Subject to Exercise. Common Shares subject to exercise shall
be one-third (1/3rd) of such Common Shares on April 4, 2005, an additional
one-third (1/3rd) of such Common Shares on and after April 3, 2006 and the
remaining one-third (1/3rd) of such Common Shares on and after April 2, 2007.
All Common Shares shall thereafter remain subject to exercise for the term
specified in Paragraph 2 hereof.
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4. Method and Time of Exercise. The Option may be exercised by written
notice delivered to the Company at its principal executive office stating the
number of Common Shares with respect to which the Option is being exercised,
together with:
(A) a check or money order made payable to the Company in the
amount of the exercise price and any withholding tax, as provided under
Paragraph 5 hereof; or
(B) if expressly authorized in writing by the Administrator, in its sole
discretion, at the time of the Option exercise, the tender to the Company of
Common Shares owned by Optionee having a fair market value, as determined by the
Administrator, not less than the exercise price, plus the amount of applicable
federal, state and local withholding taxes; or
(C) the Optionee may, at its option, elect to exercise this
Option, in whole or in part and at any time or from time to time, on a cashless
basis, by surrendering this Option, with the purchase form attached to this
Option as Exhibit A duly executed by or on behalf of the Optionee, at the
principal office of the Company, or at such other office or agency as the
Company may designate, by canceling a portion of this Option in payment of the
Exercise Price payable in respect of the number of Common Shares purchased upon
such exercise. In the event of an exercise pursuant to this subsection 4(c), the
number of Common Shares issued to the Holder shall be determined according to
the following formula:
X = Y(A-B)
------
A
Where: X = the number of Common Shares that shall be issued to
the Holder;
Y = the number of Common Shares for which this Option
is being exercised (which shall include both the
number of Common Shares issued to the Holder and the
number of Common Shares subject to the portion of the
Option being cancelled in payment of the Exercise
Price);
A = the Fair Market Value (as defined below) of one
Common Share; and
B = the Exercise Price then in effect.
(ii) The Fair Market Value per Common Share shall be
determined as follows:
(a) If the Common Shares are listed on a national securities
exchange, the Nasdaq National Market, the OTC Bulletin Board
or another nationally recognized trading system as of the
Exercise Date, which shall be deemed to have been effected
immediately prior to the close of business on the business day
on which this option shall have been surrendered to the
Company as provided in Section 4(c) hereof ("Exercise Date"),
the Fair Market Value per Common Share shall be deemed to be
the average of the high and low reported sale prices per
Common Share thereon on the trading day immediately preceding
the Exercise Date, as defined below, (PROVIDED that if the
Common Shares are not so listed on such day, the Fair Market
Value per Common Share shall be determined pursuant to clause
(b) below).
(b) If the Common Shares are not listed on a national
securities exchange, the Nasdaq National Market, the OTC
Bulletin Board or another nationally recognized trading system
as of the Exercise Date, as defined below, the Fair Market
Value per Common Share shall be deemed to be the amount most
recently determined by the Board of Directors of the Company
or an authorized committee of the Board of Directors of the
Company (the "Board") to represent the fair market value per
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share of the Common Shares (including without limitation a
determination for purposes of granting common stock options or
issuing common stock under any plan, agreement or arrangement
with employees of the Company); and, upon request of the
Optionee, the Board (or a representative thereof) shall, as
promptly as reasonably practicable but in any event not later
than 15 days after such request, notify the Optionee of the
Fair Market Value per Common Share. Notwithstanding the
foregoing, if the Board has not made such a determination
within the three-month period prior to the Exercise Date, as
defined below, then (A) the Board shall make, and shall
provide or cause to be provided to the Optionee notice of, a
determination of the Fair Market Value per Common Share within
15 days of a request by the Optionee that it do so, and (B)
the exercise of this Option pursuant to this subsection 4(c)
shall be delayed until such determination is made and notice
thereof is provided to the Optionee.
Not less than 100 shares may be purchased at any one time unless the
number purchased is the total number purchasable under such Option at the time.
Only whole shares may be purchased.
5. Tax Withholding. As a condition to exercise of this Option, the
Company may require Optionee to pay over to the Company all applicable federal,
state and local taxes which the Company is required to withhold with respect to
the exercise of this Option. At the discretion of the Administrator and upon the
request of Optionee, the minimum statutory withholding tax requirements may be
satisfied by the withholding of Common Shares otherwise issuable to Optionee
upon the exercise of this Option.
6. Intentionally left blank.
7. Nontransferability. Except with the express written approval of the
Administrator, this Option may not be assigned or transferred except by will,
qualified domestic relations order or by the laws of descent and distribution,
and may be exercised only by Optionee during his lifetime and after his death,
by his personal representative or by the person entitled thereto under his will
or the laws of intestate succession.
8. Optionee Not a Shareholder. Optionee shall have no rights as a
shareholder with respect to the Common Shares of the Company covered by this
Option until the date of issuance of a stock certificate or stock certificates
to him upon exercise of this Option. 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.
9. No Right to Employment. Nothing in the Option granted hereby shall
interfere with or limit in any way the right of the Company or of any of its
Affiliates to terminate Optionee's employment or consulting at any time, nor
confer upon Optionee any right to continue in the employ of, or consult with,
the Company or any of its Affiliates.
10. Anti-dilution Adjustment.
10.1 Stock Dividends, Stock Splits, Etc. If the Company
declares or pays a dividend on its Common Stock payable in Common Stock or other
securities, or subdivides the outstanding Common Stock into a greater amount of
Common Stock, then upon exercise of this Option, for each Common Share acquired,
Optionee shall receive, without cost to Optionee, the total number and kind of
securities to which Optionee would have been entitled had Optionee owned the
Common Shares of record as of the date the dividend or subdivision occurred.
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10.2 Reclassifications, Exchange or Substitution. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise of
this Option, Optionee shall be entitled to receive, upon exercise of this
Option, the number and kind of securities and property that Optionee would have
received for the Common Shares if this Option had been exercised immediately
before such reclassification, exchange, substitution, or other event. The
Company or its successor shall promptly issue to Optionee a new Option for such
new securities or other property. The new Option shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 10.2, including, without limitation, adjustments to
the Exercise Price and to the number of securities or property issuable upon
exercise of the new Option. The provisions of this Section 10.2 shall similarly
apply to successive reclassifications, exchanges, substitutions, or other
events.
10.3 Adjustments for Combinations, Etc. If the outstanding
shares of Common Stock are combined or consolidated, by reclassification or
otherwise, into a lesser number of shares, the Exercise Price shall be
proportionately increased.
10.4 Merger or Consolidation. In case of any consolidation of
the Company with, or merger of the Company into any other corporation, or in the
case of any sale or conveyance of all or substantially all of the assets of the
Company other than in connection with a plan of complete liquidation of the
Company, then as a condition of such consolidation, merger or sale or
conveyance, adequate provision will be made whereby the registered holder of the
Option will have the right to acquire and receive upon exercise of this Option
in lieu of the shares of Common Stock immediately theretofore subject to
acquisition upon the exercise of this Option, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore subject to acquisition
and receivable upon exercise of this Option had such consolidation, merger or
sale or conveyance not taken place. In any such case, the Company will make
appropriate provision to insure that the provisions of this Section 10 hereof
will thereafter be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise of this Option.
11. Restrictions on Sale of Common Shares. Optionee represents and
agrees that upon his exercise of this Option, in whole or in part, unless there
is in effect at that time under the Securities Act a registration statement
relating to the Common Shares issued to him, he will acquire the Common Shares
issuable upon exercise of this Option for the purpose of investment and not with
a view to their resale or further distribution, and that upon such exercise
thereof he will furnish to the Company a written statement to such effect,
satisfactory to the Company in form and substance. Optionee agrees that any
certificates issued upon exercise of this Option may bear a legend indicating
that their transferability is restricted in accordance with applicable state and
federal securities law. Any person or persons entitled to exercise this Option
under the provisions of Paragraphs 5 and 6 hereof shall, upon each exercise of
this Option under circumstances in which Optionee would be required to furnish
such a written statement, also furnish to the Company a written statement to the
same effect, satisfactory to the Company in form and substance.
12. Notices. All notices to the Company shall be addressed to the Chief
Financial Officer at the principal executive office of the Company, and all
notices to Optionee shall be addressed to Optionee at the address of Optionee on
file with the Company or its subsidiary, or to such other address as either may
designate to the other in writing. A notice shall be deemed to be duly given if
and when enclosed in a properly addressed sealed envelope deposited, postage
prepaid, with the United States Postal Service. In lieu of giving notice by mail
as aforesaid, written notices under this Agreement may be given by personal
delivery to Optionee or to the Chief Financial Officer (as the case may be).
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13. Sale or Other Disposition. If Optionee at any time contemplates the
disposition (whether by sale, gift, exchange, or other form or transfer) of any
Shares acquired by exercise of this Option, he or she shall first notify the
Company in writing of such proposed disposition and cooperate with the Company
in complying with all applicable requirements of law, which, in the judgment of
the Company, must be satisfied prior to such disposition.
[SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SYSCAN IMAGING, INC.
By : /S/ XXXXXX XX
--------------
Name: Xxxxxx Xx
Title: Chairman and CEO
OPTIONEE
By : /S/ XXXXXX XX
--------------
Name: Xxxxxx Xx
Address:
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EXHIBIT A
PURCHASE FORM
To: Syscan Imaging, Inc. Dated:____________
The undersigned, pursuant to the provisions set forth in the attached option,
hereby elects to purchase (CHECK APPLICABLE BOX): _________ shares of the Common
Stock of Syscan Imaging, Inc. covered by such Option; or
the maximum number of shares of Common Stock covered by such Option pursuant to
the cashless exercise procedure set forth in subsection 4(c).
The undersigned herewith makes payment of the full Exercise Price for such
shares at the price per share provided for in such Option. Such payment takes
the form of (CHECK APPLICABLE BOX OR BOXES): $______ in lawful money of the
United States; and/or
the cancellation of such portion of the attached Option as is exercisable for a
total of _____ Common Shares (using a Fair Market Value of $_____ per share for
purposes of this calculation) ; and/or
the cancellation of such number of Option Shares as is necessary, in accordance
with the formula set forth in subsection 4(c), to exercise this Option with
respect to the maximum number of Option Shares purchasable pursuant to the
cashless exercise procedure set forth in subsection 4(c).
----------------------------------------
Print or Type Name
----------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Option)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
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