IRVINE SENSORS CORPORATION NON-INCENTIVE STOCK OPTION AGREEMENT
Exhibit 10.60
IRVINE SENSORS CORPORATION
NON-INCENTIVE STOCK OPTION AGREEMENT
NON-INCENTIVE STOCK OPTION AGREEMENT
This NON-INCENTIVE STOCK OPTION AGREEMENT (the “Agreement”) is made this ___day of
___, ___, by and between Irvine Sensors Corporation, a Delaware corporation (the “Company”) and
___, an individual resident of ___, ___(“Optionee”).
The Option shall terminate at the close of business ten (10) years from the date hereof.
(a) Except as otherwise provided in this Agreement, the Option may be exercised by Optionee in
accordance with the following schedule:
Number of Shares | ||
On or after each of | with respect to which | |
the following dates | the Option is exercisable | |
(b) During the lifetime of Optionee, the Option shall be exercisable only by Optionee and
shall not be assignable or transferable by Optionee, other than by will or the laws of descent and
distribution. Notwithstanding the foregoing, Optionee may transfer the Option to any Family Member
(as such term is defined in the General Instructions to Form S-8 (or successor to such Instructions
or such Form)); provided, however, that (i) Optionee may not receive any consideration for such
transfer, (ii) the Family Member must agree in writing not to make any subsequent transfers of the
Option other than by will or the laws of the descent and distribution and (iii) the Company
receives prior written notice of such transfer.
(c) Notwithstanding the provisions set forth above in Section 2(a), (i) in the event of
termination of Optionee’s employment with or Service to the Company as a result of Optionee’s death
or Permanent Disability while in the employ or Service of the Company, the next vesting
date for the Option, as set out in Section 2(a) above, shall accelerate by twelve (12) months
as of such date of termination; and (ii) if, after the initial vesting date set forth above,
Optionee ceases
to be an employee or provide Service by reason of Ordinary Retirement prior to the
vesting of the Option under Sections 2 or 5 hereof, then the vesting of the Option, as set out in
Section 2(a) above, shall accelerate in full as of such date of Ordinary Retirement. For purposes
of this Agreement, “Ordinary Retirement” shall mean the retirement of the Optionee on a date upon
which, if the Optionee is an employee, the sum of the Optionee’s age and number of years of
employment with the Company equals or exceeds eighty-five (85) years or, if the Optionee is a
non-employee director, the number of years of Service to the Company exceeds five (5) years.
(a) If Optionee’s employment or Service shall be terminated for any reason, voluntary
or involuntary, other than for “Misconduct” (as defined in Section 3(e)) or Optionee’s death
or Permanent Disability, Optionee may at any time within a period of three (3) months after
such termination exercise the Option to the extent the Option was exercisable by Optionee on
the date of the termination of Optionee’s employment or Service.
(b) If Optionee’s employment or Service is terminated for Misconduct, the Option shall
be terminated as of the date of the act giving rise to such termination.
(c) If Optionee shall die while the Option is still exercisable according to its terms,
or if employment or Service is terminated because of Optionee’s Permanent Disability while
in the employ of the Company, and Optionee shall not have fully exercised the Option, such
Option may be exercised, at any time within twelve (12) months after Optionee’s death or
date of termination of employment or Service for Permanent Disability, by Optionee, personal
representatives or administrators or guardians of Optionee, as applicable, or by any person
or persons to whom the Option is transferred by will or the applicable laws of descent and
distribution, to the extent of the full number of Shares Optionee was entitled to purchase
under the Option on (i) the earlier of the date of death or termination of employment or
Service or (ii) the date of termination for such Permanent Disability, as applicable.
(d) Notwithstanding the above, in no case may the Option be exercised to any extent by
anyone after the termination date of the Option.
(e) “Misconduct” shall mean (i) the commission of any act of fraud, embezzlement or
dishonesty by Optionee, (ii) any unauthorized use or disclosure by such person of
confidential information or trade secrets of the Company (or of any Affiliate), or (iii) any
other intentional misconduct by such person adversely affecting the business or affairs of
the Company (or any Affiliate) in a material manner. However, if the term or concept has
been defined in an employment agreement between the Company and Optionee, then Misconduct
shall have the definition set forth in such employment agreement. The foregoing definition
shall not in any way preclude or restrict the right of
the Company (or any Affiliate) to discharge or dismiss any Optionee or other person in
the Service of the Company (or any Affiliate) for any other acts or omissions but such
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other
acts or omissions shall not be deemed, for purposes of the Agreement, to constitute grounds
for termination for Misconduct.
(a) Immediately prior to the effective date of a “Change in Control” (as defined in Section
5(e)), this Option shall vest and become exercisable for all of the Shares and may be exercised for
any or all of those Shares. However, this Option shall not vest and become exercisable on an
accelerated basis if and to the extent: (i) this Option is to be assumed by the successor
corporation (or parent thereof) or is otherwise to be continued in full force and effect pursuant
to the terms of the Change in Control transaction or (ii) this Option is to be replaced with a cash
incentive program of the successor corporation which preserves the spread existing at the time of
the Change in Control on the Shares for which this Option is not otherwise at that time exercisable
(the excess of the Fair Market Value of those Shares over the aggregate exercise price payable for
such Shares) and provides for subsequent payout of that spread no later than the time this Option
would have vested and become exercisable for those Shares.
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(b) Immediately following the consummation of the Change in Control, this Option shall
terminate, except to the extent assumed by the successor corporation (or parent thereof) or
otherwise continued in effect pursuant to the terms of the Change in Control transaction.
(c) If this Option is assumed or otherwise continued in effect in connection with a Change in
Control, then this Option shall be appropriately adjusted, upon such Change in Control, to apply to
the number and class of securities which would have been issuable to Optionee in consummation of
such Change in Control had this Option been exercised immediately prior to such Change in Control,
and appropriate adjustments shall also be made to the exercise price, provided the aggregate
exercise price shall remain the same. To the extent that the holders of Common Stock receive cash
consideration for their Common Stock in consummation of the Change in Control, the successor
corporation (or its parent) may, in connection with the assumption of this Option, substitute one
or more shares of its own common stock with a fair market value equivalent to the cash
consideration paid per share of Common Stock in such Change in Control.
(d) This Agreement shall not in any way affect the right of the Company to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or assets.
(e) For purposes of this Agreement, “Change in Control” shall mean a change in ownership or
control of the Company effected through any of the following transactions: (i) a merger,
consolidation or other reorganization unless securities representing more than 50% of the total
combined voting power of the voting securities of the successor corporation are immediately
thereafter beneficially owned, directly or indirectly and in substantially the same proportion, by
the persons who beneficially owned the Company’s outstanding voting securities immediately prior to
such transaction; (ii) the sale, transfer or other disposition of all or substantially all of the
Company’s assets; or (iii) the acquisition, directly or indirectly by any person or related group
of persons (other than the Company or a person that directly or indirectly controls, is controlled
by, or is under common control with, the Company), of beneficial ownership (within the meaning of
Rule 13d-3 of the Exchange Act) of securities possessing more than 50% of the total combined voting
power of the Company’s outstanding securities pursuant to a tender or exchange offer made directly
to the Company’s stockholders.
7.
Miscellaneous.
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inconsistent in any respect with the terms of the Plan, the terms of the Plan shall control.
All decisions of the Committee with respect to any question or issue arising under the Plan or this
Agreement shall be and binding on all persons having an interest in this Option. All capitalized
terms used in this Agreement and not otherwise defined in this Agreement shall have the meaning
assigned to them in the Plan.
(d) Governing Law. The validity, construction and effect of the Plan and the
Agreement, and any rules and regulations relating to the Plan and the Agreement, shall be
determined in accordance with the internal laws, and not the law of conflicts, of the State of
Delaware.
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(i) Conditions Precedent to Issuance of Shares. Shares shall not be issued pursuant
to the exercise of the Option unless such exercise and the issuance and delivery of the applicable
Shares pursuant thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act of 1934, as amended, the rules
and regulations promulgated thereunder, state blue sky laws, the requirements of any applicable
Stock Exchange or the Nasdaq Stock Market and the Delaware General Corporation Law. As a condition
to the exercise of the purchase price relating to the Option, the Company may require that the
person exercising or paying the purchase price represent and warrant that the Shares are being
purchased only for investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation and warranty is required by
law.
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any expectation or understanding that the Company or any of its employees or representatives
will pay or reimburse Optionee for such taxes or other items.
IRVINE SENSORS CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
OPTIONEE: | ||||
Name: | ||||
Address: | ||||
Facsimile: | ||||
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