PDT, INC.
AMENDED AND RESTATED OPTION AGREEMENT
This Option Agreement (the "Option") is made and entered into at Santa
Barbara, California, on the date hereinafter set forth by and between PDT, INC.,
a Delaware Corporation, hereinafter called the "Company", and (HOLDER),
hereinafter called the "Optionee".
WHEREAS:
A. The Optionee is acting as a Consultant to the Company under a Consulting
and Option Agreement of even date hereof; and
B. The Company wishes to grant the Optionee an option to purchase stock in
the Company as recognition of the Optionee's valuable services as a Consultant,
and the Optionee will, in consideration of receipt of said option, agree to bind
herself to the terms, conditions and provisions set forth herein.
NOW, THEREFORE, in consideration of the premises, it is agreed as follows:
1. GRANT OF OPTION. Subject to the conditions set forth herein, the Company
hereby grants to the Optionee the right, privilege and option to purchase NUMBER
(#) shares of the Company's Common Stock at a price per share (the "Option
Price") of SIX DOLLARS ($6.00) in the manner hereinafter provided, effective as
of (the "Grant Date") to be vested as follows: 25% per year for each full year
of Consulting Services from the Grant Date.
2. METHOD OF EXERCISE. Stock purchased under this Option shall, at the time
of purchase, be paid for in full. To the extent that the right to purchase
shares has accrued hereunder, this Option may be exercised, from time to time,
by written notice to the Company stating the number of shares with respect to
which this Option is being exercised and the time of delivery thereof, which
shall be at least fifteen (15) days after the giving of such notice, unless an
earlier date shall have been mutually agreed upon. At the time specified in such
notice, the Company shall, without transfer or issue tax to the Optionee,
deliver to him by certified mail, a certificate or certificates for such shares,
against the payment of the Option Price, in full, for the number of shares to be
delivered, by certified or bank cashier's check, or the equivalent thereof
acceptable to the Company. Provided, however, that the time of such delivery may
be postponed by the Company for such period as may be required for it, with
reasonable diligence, to comply with any requirements of any state or federal
agency or any securities exchange. If the Optionee fails to accept delivery of
and pay for all or any part of the number of shares specified in the notice
given by the Optionee, upon tender and delivery of said shares, the Optionee's
right to exercise this Option with respect to such undelivered shares shall be
terminated. The Option may only be exercised in increments of ONE HUNDRED (100)
shares, or more.
3. TERMINATION OF OPTION. Except as herein otherwise stated, this Option,
to the extent not theretofore exercised, shall expire at 5:00 p.m., Los Angeles,
California time on February 14, 2000. Notwithstanding the foregoing, if Optionee
ceases to be a Consultant for any reason other than death or permanent
disability, this Option shall expire thirty (30) days after the first day
Optionee is no longer a Consultant, but in no event later than the expiration
date specified under this Paragraph 3. If Optionee dies while a Consultant, this
Option may be exercised by the personal representative of the estate of Optionee
(or, if Optionee's estate has been closed, by his or her successors by bequest
or inheritance) for a period of six (6) months after Optionee ceases to be a
Consultant, but in no event later than the expiration date specified under this
Paragraph 3. If Optionee ceases to be a Consultant because of a permanent
disability, Optionee may exercise this Option for a period of six (6) months
after the date Optionee ceases to be a Consultant, but in no event later than
the expiration date specified under this Paragraph 3. If this Option remains
exercisable pursuant to this Paragraph 3 after termination of Optionee's
consulting services, the Option may be exercised only to the extent Optionee
could have exercised the Option pursuant to Paragraph 1, above, on the date
Optionee ceased to be a Consultant.
4. REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. The Optionee hereby
warrants and represents to the Company, as of the date hereof and as of the date
or dates on which any Option Shares are purchased hereunder, as follows:
(a.) Optionee is an Accredited Investor as defined in the Securities and
Exchange Commission's Regulation Section 230.501, a copy of which is
attached hereto as Exhibit B.
(b.) Optionee is, by reason of Optionee's business or financial experience,
capable of evaluating the merits and risks of this investment and of
protecting the Optionee's own interests in connection with the Option.
(c.) In deciding whether to acquire the Option Shares, the Optionee has
relied, and will rely, exclusively upon consultations with his legal,
financial and tax advisors with respect to the nature of the Option.
(d.) Optionee understands that neither the Department of Corporations of
the State of California, nor the Securities and Exchange Commission,
nor any other governmental agency having jurisdiction over the sale
and issuance of the Option Shares will make any finding or
determination relating to the appropriateness for investment of the
Option Shares and that none of them has or will recommend or endorse
the Option Shares.
(e.) The Optionee represents that the Option Shares will be purchased for
Optionee's own account for investment and will not be purchased with a
view to the sale or distribution thereof, and that the Optionee has no
intention of distributing or reselling any portion of the Option or
the Option Shares which Optionee is receiving or may purchase.
Optionee acknowledges that the Option and the Option Shares have not
been, and will not be, registered under the Act, and must be held
indefinitely unless subsequently registered under the Act or an
exemption for such registration is available. The Optionee also
acknowledges that Optionee is fully aware of the restrictions on
disposing of the Option Shares resulting from the provisions of the
Act and the General Rules and Regulations of the Securities and
Exchange Commission thereunder. Optionee further understands that the
Option Shares have not been, and will not be, qualified under the
California Law on the ground that the sale thereof is exempt under the
applicable provisions of the California Law.
(f.) Optionee understands that the ability to transfer the Option Shares is
also restricted under the terms of the Company's Certificate of
Incorporation, and that the Company and the other shareholders of the
Company have certain rights of first refusal with respect to the
Option Shares.
(g.) Optionee recognizes that there is not a public market for the shares
of the Company and that there is no assurance that there will be such
a market for these securities. Optionee understands that the shares
may have to be held indefinitely due to the lack of such a market.
(h.) Optionee, if requested by the Company's underwriters, will execute a
"lock-up" agreement.
(i.) Optionee recognizes that "stop transfers instructions will be issued
against any stock certificates under this Option and that the
following legends will be placed on the stock certificates issued for
the securities:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED SOLELY FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO ADDITIONAL
TRANSFER AND OTHER RESTRICTIONS AND A RIGHT OF FIRST REFUSAL CONTAINED IN THE
CERTIFICATE OF INCORPORATION OF THE CORPORATION. ANY ATTEMPTED TRANSFER WHICH
WOULD VIOLATE THESE RESTRICTIONS IS VOID. COPIES OF THE CERTIFICATE OF
rNCORPORATION ARE ON FILE WITH THE SECRETARY OF THE CORPORATION.
5. RECLASSIFICATION, CONSOLIDATION OR MERGER If, and to the extent that
the number of issued shares of Common Stock of the Company shall be increased or
reduced by a change in par value, split-up, reclassification, distribution of a
dividend payable in stock, or the like (but excluding dividends payable in
cash), the number of Option Shares subject to this Option, and the Option Price
therefor, shall be proportionately adjusted. If the Company is reorganized or
consolidated, or merged with any other corporation, the Optionee shall be
entitled to receive options covering shares of such reorganized, consolidated or
merged Company in the same proportion, at an equivalent price, and subject to
the same conditions. For purposes of the preceding sentence, the excess of the
aggregate fair market value of the shares subject to this Option immediately
after the reorganization, consolidation or merger over the aggregate Option
Price of such shares, shall not be more than the excess of the aggregate fair
market value of all shares subject to this Option immediately before such
reorganization, consolidation or merger over the aggregate Option Price of such
shares, and the new option or the assumption of the old option shall not give
the Optionee additional benefits which he did not have under the old option.
6. RIGHTS PRIOR TO EXERCISE OF OPTION. This Option is nontransferable by
the Optionee, and is exercisable only by the Optionee, and the Optionee shall
have no rights as a shareholder of shares subject to this Option until payment
of the Option Price and the delivery of such shares as herein provided.
Provided, however, that this Option may be exercisable by the Optionee's
executor or personal representative within six (6) months after Optionee's death
as defined in Paragraph 3 above.
7. RESTRICTIONS ON ISSUANCE OF SHARES. The Company shall not be obligated
to sell and issue any shares pursuant to this Option, unless permission to issue
said shares has first been obtained from the Commissioner of Corporations of the
State of California, and further, unless the shares with respect to which this
Option is exercised are, a the time, effectively registered, or exempt from
registration, under the Securities Act of 1933, as amended.
8. BINDING EFFECT. This Option shall be binding upon the heirs, executors,
administrators and successors of the parties hereto.
SIGNATURES ON NEXT PAGE
IN WITNESS WIIEREOF, the parties have caused this Option Agreement to be
executed on this _______day of (MONTH), (YEAR).
"Company"
PDT, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
CEO and Chairman
"Optionee"
(NAME)
Address:
(ADDRESS)
