NOVASTAR RESOURCES LTD. SECOND AMENDED AND RESTATED 2006 STOCK PLAN NOTICE OF GRANT
Exhibit
10.2
Mushakov
Option Agreement
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
NOTICE
OF GRANT
Capitalized
but otherwise undefined terms in this Notice of Grant and the attached Stock
Option Agreement shall have the same defined meanings as in the Second Amended
and Restated 2006 Stock Plan (the “Plan”).
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Name:
XXXXXX
XXXXXXXX
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Address:
c/o
Novastar Resources Ltd.,
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0000
Xxxxxxxxxx Xxxxx, Xxxxx 000,
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McLean,
VA 22102
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You
have
been granted an option (the “Option”) to purchase Common Stock of the
Corporation, subject to the terms and conditions of the Plan and the attached
Stock Option Agreement, as follows:
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Date
of Grant:
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July
27, 2006
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Vesting
Commencement Date:
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July
27, 2006
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Option
Price per Share:
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$0.49
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Total
Number of Shares Granted:
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2,250,000
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Total
Option Price:
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$1,102,500
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Type
of Option:
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Nonqualified
Stock Option
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Term/Expiration
Date:
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Ten
(10) years after Date of Xxxxx
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Vesting
Schedule:
The
Option shall vest, in whole or in part, in accordance with the following
schedule:
The
Option shall vest with respect to 234,375 shares on the Vesting Commencement
Date and the remaining 2,015,625 shares shall thereafter vest in equal monthly
installments of 46,875 shares on each one month anniversary of the Vesting
Commencement Date until all shares underlying the Option have vested. The Option
shall immediately and automatically vest in full upon a Change of Control,
upon
the termination of the Optionee’s employment by the Company without Cause or
upon cessation by the Optionee of his employment with the Company for Good
Reason. For purposes of this Notice of Grant, the terms “Change of Control”,
“Cause” and “Good Reason” shall have the meanings given for them in the
Employment Agreement, between the Optionee and the Company, of even date
herewith.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
This
STOCK
OPTION AGREEMENT (“Agreement”),
dated as of the 27th day of July, 2006 is made by and between NOVASTAR RESOURCES
LTD., a Nevada corporation (the “Corporation”), and XXXXXX XXXXXXXX (the
“Optionee,” which term as used herein shall be deemed to include any successor
to the Optionee by will or by the laws of descent and distribution, unless
the
context shall otherwise require).
BACKGROUND
Pursuant
to the Corporation’s Second Amended and Restated 2006 Stock Plan (the “Plan”),
the Corporation, acting through the Committee of the Board of Directors (if
a
committee has been formed to administer the Plan) or its entire Board of
Directors (if no such committee has been formed) responsible for administering
the Plan (in either case, referred to herein as the “Committee”), approved the
issuance to the Optionee, effective as of the date set forth above, of a stock
option to purchase shares of Common Stock of the Corporation at the price (the
“Option Price”) set forth in the attached Notice of Grant (which is expressly
incorporated herein and made a part hereof, the “Notice of Grant”), upon the
terms and conditions hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the mutual premises and undertakings hereinafter set forth,
the
parties hereto agree as follows:
1. Option;
Option Price.
On
behalf of the Corporation, the Committee hereby grants to the Optionee the
option (the “Option”) to purchase, subject to the terms and conditions of this
Agreement and the Plan (which is incorporated by reference herein and which
in
all cases shall control in the event of any conflict with the terms, definitions
and provisions of this Agreement), that number of shares of Common Stock of
the
Corporation set forth in the Notice of Grant, at an exercise price per share
equal to the Option Price as is set forth in the Notice of Grant (the “Optioned
Shares”). If designated in the Notice of Grant as an “incentive stock option,”
the Option is intended to qualify for Federal income tax purposes as an
“incentive stock option” within the meaning of Section 422 of the Code. A copy
of the Plan as in effect on the date hereof has been supplied to the Optionee,
and the Optionee hereby acknowledges receipt thereof.
2. Term.
The term
(the “Option Term”) of the Option shall commence on the date of this Agreement
and shall expire on the Expiration Date set forth in the Notice of Grant unless
such Option shall theretofore have been terminated in accordance with the terms
of the Notice of Grant, this Agreement or of the Plan.
3. Time
of Exercise.
(a) Unless
accelerated in the discretion of the Committee or as otherwise provided herein,
the Option shall become exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Grant. Subject to the provisions
of
Sections 5 and 8 hereof, shares as to which the Option becomes exercisable
pursuant to the foregoing provisions may be purchased at any time thereafter
prior to the expiration or termination of the Option.
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(b) Anything
contained in this Agreement to the contrary notwithstanding, to the extent
the
Option is intended to be an Incentive Stock Option, the Option shall not be
exercisable as an Incentive Stock Option, and shall be treated as a
Non-Statutory Option, to the extent that the aggregate Fair Market Value on
the
date hereof of all stock with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
the Plan and all other plans of the Corporation, its parent and its
subsidiaries, if any) exceeds $100,000.
4. Termination
of Option.
(a)
The
Optionee may exercise the Option (but only to the extent the Option was
exercisable at the time of termination of the Optionee’s employment with the
Corporation, its parent or any of its subsidiaries) at any time within three
(3)
months following the termination of the Optionee’s employment with the
Corporation, its parent or any of its subsidiaries, but not later than the
scheduled expiration date. If the termination of the Optionee’s employment is
for cause or is otherwise attributable to a breach by the Optionee of an
employment, non-competition, non-disclosure or other material agreement, the
Option shall expire immediately upon such termination. If the Optionee is a
natural person who dies while in employment with the Corporation, its parent
or
any of its subsidiaries, this option may be exercised, to the extent of the
number of shares with respect to which the Optionee could have exercised it
on
the date of his death, by his estate, personal representative or beneficiary
to
whom this option has been assigned pursuant to Section 9 of the Plan, at any
time within the twelve (12) month period following the date of death. If the
Optionee is a natural person whose employment with the Corporation, its parent
or any of its subsidiaries is terminated by reason of his disability, this
Option may be exercised, to the extent of the number of shares with respect
to
which the Optionee could have exercised it on the date the employment was
terminated, at any time within the twelve (12) month period following the date
of such termination, but not later than the scheduled expiration date. At the
expiration of such three (3) or twelve (12) month period or the scheduled
expiration date, whichever is the earlier, this Option shall terminate and
the
only rights hereunder shall be those as to which the Option was properly
exercised before such termination.
(b) Anything
contained herein to the contrary notwithstanding, the Option shall not be
affected by any change of duties or position of the Optionee (including a
transfer to or from the Corporation, its parent or any of its subsidiaries)
so
long as the Optionee continues in a Business Relationship with the Corporation,
its parent or any of its subsidiaries.
5. Procedure
for Exercise.
(a) The
Option may be exercised, from time to time, in whole or in part (but for the
purchase of whole shares only), by delivery of a written notice in the form
attached as Exhibit
A
hereto
(the “Notice”) from the Optionee to the Secretary of the Corporation, which
Notice shall:
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(i) state
that the Optionee elects to exercise the Option;
(ii) state
the
number of shares with respect to which the Option is being exercised (the
“Optioned Shares”);
(iii) state
the
method of payment for the Optioned Shares pursuant to Section 5(b);
(iv) state
the
date upon which the Optionee desires to consummate the purchase of the Optioned
Shares (which date must be prior to the termination of such Option and no later
than 30 days from the delivery of such Notice);
(v) include
any representations of the Optionee required under Section 8(b);
(vi) if
the
Option shall be exercised in accordance with Section 9 of the Plan by any person
other than the Optionee, include evidence to the satisfaction of the Committee
of the right of such person to exercise the Option; and
(b) Payment
of the Option Price for the Optioned Shares shall be made either (i)
by
delivery of cash or a check to the order of the Corporation in an amount equal
to the Option Price, (ii) if approved by the Committee, by delivery to the
Corporation of shares of Common Stock of the Corporation having a Fair Market
Value on the date of exercise equal in amount to the Option Price of the options
being exercised, (iii) by any other means which the Board of Directors
determines are consistent with the purpose of the Plan and with applicable
laws
and regulations (including, without limitation, the provisions of Rule 16b-3
and
Regulation T promulgated by the Federal Reserve Board), or (iv) by any
combination of such methods of payment. Notwithstanding
any provisions herein to the contrary, if the Fair Market Value of one share
of
Common Stock of the Corporation is greater than the Option Price (at the date
of
calculation as set forth below), in lieu of paying the Option Price in cash,
the
Optionee may elect to receive shares equal to the value (as determined below)
of
the Optioned Shares by delivering notice of such election to the Corporation
in
which event the Corporation shall issue to the Optionee a number of shares
of
Common Stock computed using the following formula:
X
=
Y(A-B)
A
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X
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=
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the
number of shares of Common Stock to be issued to the
Optionee
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Y
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=
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the
number of Optioned Shares
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A
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=
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the
Fair Market Value of one share of Common Stock (at the date of such
calculation)
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B
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=
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Option
Price (as adjusted to the date of such
calculation)
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(c) The
Corporation shall issue a stock certificate in the name of the Optionee (or
such
other person exercising the Option in accordance with the provisions of Section
9 of the Plan) for the Optioned Shares as soon as practicable after receipt
of
the Notice and payment of the aggregate Option Price for such
shares.
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6. No
Rights as a Stockholder.
The
Optionee shall not have any privileges of a stockholder of the Corporation
with
respect to any Optioned Shares until the date of issuance of a stock certificate
pursuant to Section 5(c).
7. Adjustments. The
Plan
contains provisions covering the treatment of options in a number of
contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to stock subject to options and the related provisions
with respect to successors to the business of the Corporation are hereby made
applicable hereunder and are incorporated herein by reference. In general,
the
Optionee should not assume that options would survive the acquisition of the
Corporation.
8. Additional
Provisions Related to Exercise.
(a) The
Option shall be exercisable only on such date or dates and during such period
and for such number of shares of Common Stock as are set forth in this
Agreement.
(b) To
exercise the Option, the Optionee shall follow the procedures set forth in
Section 5 hereof. Upon the exercise of the Option at a time when there is not
in
effect a registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), relating to the shares of Common Stock issuable upon
exercise of the Option, the Committee in its discretion may, as a condition
to
the exercise of the Option, require the Optionee (i) to execute an Investment
Representation Statement substantially in the form set forth in Exhibit
B
hereto
and (ii) to make such other representations and warranties as are deemed
appropriate by counsel to the Corporation.
(c) Stock
certificates representing shares of Common Stock acquired upon the exercise
of
Options that have not been registered under the Securities Act shall, if
required by the Committee, bear an appropriate restrictive legend referring
to
the Securities Act. No shares of Common Stock shall be issued and delivered
upon
the exercise of the Option unless and until the Corporation and/or the Optionee
shall have complied with all applicable Federal or state registration, listing
and/or qualification requirements and all other requirements of law or of any
regulatory agencies having jurisdiction.
9. No
Evidence of Employment or Service.
Nothing
contained in the Plan or this Agreement shall confer upon the Optionee any
right
to continue in employment with the Corporation, its parent or any of its
subsidiaries or interfere in any way with the right of the Corporation, its
parent or its subsidiaries (subject to the terms of any separate agreement
to
the contrary) to terminate the Optionee’s employment or to increase or decrease
the Optionee’s compensation at any time.
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10. Restriction
on Transfer.
The
Option may not be transferred, pledged, assigned, hypothecated or otherwise
disposed of in any way by the Optionee, except by will or by the laws of descent
and distribution, and may be exercised during the lifetime of the Optionee
only
by the Optionee. If the Optionee dies, the Option shall thereafter be
exercisable, during the period specified in Section 4, by his executors or
administrators to the full extent to which the Option was exercisable by the
Optionee at the time of his death. The Option shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, and the levy of any execution, attachment or similar process upon the
Option, shall be null and void and without effect. The words “transfer” and
“dispose” include without limitation the making of any sale, exchange,
assignment, gift, security interest, pledge or other encumbrance, or any
contract therefor, any voting trust or other agreement or arrangement with
respect to the transfer of any interest, beneficial or otherwise, in the Option,
the creation of any other claim thereto or any other transfer or disposition
whatsoever, whether voluntary or involuntary, affecting the right, title,
interest or possession with respect to the Option.
11. Specific
Performance.
Optionee expressly agrees that the Corporation will be irreparably damaged
if
the provisions of this Agreement and the Plan are not specifically enforced.
Upon a breach or threatened breach of the terms, covenants and/or conditions
of
this Agreement or the Plan by the Optionee, the Corporation shall, in addition
to all other remedies, be entitled to a temporary or permanent injunction,
without showing any actual damage, and/or decree for specific performance,
in
accordance with the provisions hereof and thereof. The Board of Directors shall
have the power to determine what constitutes a breach or threatened breach
of
this Agreement or the Plan. Any such determinations shall be final and
conclusive and binding upon the Optionee.
12. Disqualifying
Dispositions.
To the
extent the Option is intended to be an Incentive Stock Option, and if the
Optioned Shares are disposed of within two years following the date of this
Agreement or one year following the issuance thereof to the Optionee (a
“Disqualifying Disposition”), the Optionee shall, immediately prior to such
Disqualifying Disposition, notify the Corporation in writing of the date and
terms of such Disqualifying Disposition and provide such other information
regarding the Disqualifying Disposition as the Corporation may reasonably
require.
13. Notices.
All
notices or other communications which are required or permitted hereunder shall
be in writing and sufficient if (i)
personally delivered or sent by telecopy, (ii)
sent by
nationally-recognized overnight courier or (iii)
sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if
to the
Optionee, to the address (or telecopy number) set forth on the Notice of Grant;
and
if
to the
Corporation, to its principal executive office as specified in any report filed
by the Corporation with the Securities and Exchange Commission or to such
address as the Corporation may have specified to the Optionee in writing,
Attention: Corporate Secretary.
or
to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such communication
shall be deemed to have been given (i) when delivered, if personally delivered,
or when telecopied, if telecopied, (ii) on the first Business Day (as
hereinafter defined) after dispatch, if sent by nationally-recognized overnight
courier and (iii) on the third Business Day following the date on which the
piece of mail containing such communication is posted, if sent by mail. As
used
herein, “Business Day” means a day that is not a Saturday, Sunday or a day on
which banking institutions in the city to which the notice or communication
is
to be sent are not required to be open.
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14. No
Waiver.
No
waiver of any breach or condition of this Agreement shall be deemed to be a
waiver of any other or subsequent breach or condition, whether of like or
different nature.
15. Optionee
Undertaking.
The
Optionee hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Optionee pursuant to the express
provisions of this Agreement.
16. Modification
of Rights.
The
rights of the Optionee are subject to modification and termination in certain
events as provided in this Agreement and the Plan.
17. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Nevada applicable to contracts made and to be wholly performed
therein, without giving effect to its conflicts of laws principles.
18. Counterparts;
Facsimile Execution.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument. Facsimile execution and delivery of this Agreement is legal,
valid and binding execution and delivery for all purposes.
19. Entire
Agreement.
This
Agreement (including the Notice of Grant) and the Plan, and, upon execution,
the
Notice and Investment Representation Statement, constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede
all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
20. Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
21. WAIVER
OF JURY TRIAL.
THE
OPTIONEE HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
[Signature
Page Follows]
7
IN
WITNESS WHEREOF,
the
parties hereto have executed this Option Agreement as of the date first written
above.
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By:
/s/ Xxxx Xxxx
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Xxxx
Xxxx
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President
and Chief Executive Officer
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OPTIONEE:
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/s/
Xxxxxx Xxxxxxxx
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Xxxxxx
Xxxxxxxx
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[Signature
Page to Option Agreement]
8
NOTE
RE: EXHIBITS
EXHIBITS
A AND B ARE TO BE SIGNED
WHEN
OPTIONS ARE EXERCISED,
NOT
WHEN OPTION AGREEMENT IS SIGNED.
9
EXHIBIT
A
AMENDED
AND RESTATED 2006 STOCK PLAN
EXERCISE
NOTICE
Attention:
Chief Executive Officer
1. Exercise
of Option.
Effective as of today, _______________________, 20__ , the undersigned (the
“Optionee”) hereby elects to exercise the Optionee’s option to purchase
________________ shares of the Common Stock (the “Shares”) of Novastar Resources
Ltd. (the “Corporation”) under and pursuant to the Amended and Restated 2006
Stock Plan (the “Plan”) and the Stock Option Agreement dated July 27, 2006 (the
“Stock Option Agreement”), with the purchase of the Shares to be consummated on
______________ ___, ____ (the “Effective Date”), which date is prior to the
termination of the Option and no later than 30 days from the date of delivery
of
this Notice.
2. Representations
of the Optionee.
The
Optionee acknowledges that the Optionee has received, read and understood the
Plan and the Stock Option Agreement and agrees to abide by and be bound by
their
terms and conditions.
3. Rights
as Shareholder; Shares Subject to Stockholders Agreement.
Until
the stock certificate evidencing such Shares is issued (as evidenced by the
appropriate entry on the books of the Corporation or of a duly authorized
transfer agent of the Corporation), no right to vote or receive dividends or
any
other rights as a stockholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Corporation shall issue (or
cause to be issued) such stock certificate promptly after the Effective Date,
provided the applicable price has been paid and the required documents have
been
received. No adjustment will be made for a dividend or other right for which
the
record date is prior to the date the stock certificate is issued, except as
otherwise provided in the Plan. Unless waived by the Corporation in writing,
the
Shares shall automatically become subject to the terms and conditions of any
stockholders agreement or similar agreement to which a majority of the
outstanding capital stock of the Corporation is subject at the time of exercise
and the Optionee shall sign as a condition to the issuance of the Shares such
joinder agreement, signature pages or other documents in order to evidence
the
Optionee’s agreement to be so bound.
4. Tax
Consultation.
The
Optionee understands that the Optionee may suffer adverse tax consequences
as a
result of the Optionee’s purchase or disposition of the Shares. The Optionee
represents that the Optionee has consulted with any tax consultants the Optionee
deems advisable in connection with the purchase or disposition of the Shares
and
that the Optionee is not relying on the Corporation for any tax
advice.
5. Successors
and Assigns.
The
Corporation may assign any of its rights under the Stock Option Agreement to
single or multiple assignees (who may be stockholders, officers, directors,
employees or consultants of the Corporation), and this Agreement shall inure
to
the benefit of the successors and assigns of the Corporation. Subject to the
restrictions on transfer set forth in the Stock Option Agreement, this Agreement
shall be binding upon the Optionee and his or her heirs, executors,
administrators, successors and assigns.
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6. Interpretation.
Any
dispute regarding the interpretations of this Agreement shall be submitted
by
the Optionee or by the Corporation forthwith to the Committee, which shall
review such dispute at its next regular meeting. The resolution of such a
dispute by the Committee shall be final and binding on the Corporation and
on
the Optionee.
7. Governing
Laws: Severability.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York applicable to contracts made and to be wholly performed
therein, without giving effect to its conflicts of laws principles. Should
any
provision of this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
8. Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given if given in the manner specified in the Stock Option
Agreement.
9. Further
Instruments.
The
parties agree to execute such further instruments and to take such further
action as may be reasonably necessary to carry out the purposes and intent
of
this Agreement.
10. Delivery
of Payment.
The
Optionee herewith delivers to the Corporation the full Option Price for the
Shares.
11. Entire
Agreement.
The
Plan, the Notice of Grant, and the Stock Option Agreement are incorporated
herein by reference. This Agreement, the Plan, the Notice of Grant, the Stock
Option Agreement, and the Investment Representation Statement constitute the
entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Corporation and the Optionee with respect
to
the subject matter hereof.
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Submitted
by:
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Accepted
by:
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OPTIONEE:
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By:_____________________________
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___________________________
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Its:______________________________
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XXXXXX
XXXXXXXX
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EXHIBIT
B
AMENDED
AND RESTATED 2006 STOCK PLAN
INVESTMENT
REPRESENTATION STATEMENT
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OPTIONEE
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:
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___________________________________
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CORPORATION
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:
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NOVASTAR
RESOURCES LTD.
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SECURITY
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:
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Common
Stock
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AMOUNT
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:
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___________________________________
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DATE
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:
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___________________________________
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In
connection with the purchase of the above-listed Securities, the undersigned
Optionee represents to the Corporation the following:
(a) The
Optionee is aware of the Corporation’s business affairs and financial condition
and has acquired sufficient information about the Corporation to reach an
informed and knowledgeable decision to acquire the Securities. The Optionee
is
acquiring these Securities for investment for the Optionee’s own account only
and not with a view to, or for resale in connection with, a “distribution”
thereof within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”).
(b) The
Optionee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Optionee’s
investment intent as expressed herein. In this connection, the Optionee
understands that, in the view of the Securities and Exchange Commission, the
statutory basis for such exemption may be unavailable if the Optionee’s
representation was predicated solely upon a present intention to hold these
Securities for the minimum capital gains period specified under tax statutes,
for a deferred sale, for or until an increase or decrease in the market price
of
the Securities, or for a period of one year or any other fixed period in the
future. The Optionee further understands that the Securities must be held
indefinitely unless they are subsequently registered under the Securities Act
or
an exemption from such registration is available. The Optionee further
acknowledges and understands that the Corporation is under no obligation to
register the Securities. The Optionee understands that the certificate
evidencing the Securities will be imprinted with a legend which prohibits the
transfer of the Securities unless they are registered or such registration
is
not required in the opinion of counsel satisfactory to the Corporation and
other
legends required under the applicable state or federal securities
laws.
Signature
of Optionee: _____________________________
XXXXXX
XXXXXXXX
Date:__________________
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