THIS AGREEMENT CERTIFICATE IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
Exhibit 4.6
THIS AGREEMENT CERTIFICATE IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
To:
Date: [ ]
Dear [ ]
Zeus Inc, Replacement Incentive Stock Option
BACKGROUND
| A | NaturalMotion Limited granted you (the “Option Holder”) on [—] an option to acquire [—] shares in NaturalMotion Limited [(the “Original Option”) on the terms of, and subject to, the rules of [the NaturalMotion Limited Enterprise Management Incentive Scheme][the NaturalMotion Limited Option Plan 2012] and in accordance with and under the provisions of Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”). |
| B | The Option Holder wishes to convert the Original Option to an Incentive Stock Option (“ISO”) issued by Zeus, Inc. (the “Company”), under the Zeus, Inc. 2011 Equity Incentive Plan (the “Company Plan”) and on the terms set out in this Agreement, over [—] shares in the Company (the “Replacement Option”) in consideration of the release of the Original Option on the terms set out in this Agreement. Upon exercise of the Replacement Option, Company shares will be issued to you under the Company Plan. |
| C | It is intended that the Replacement Option granted under this Agreement shall be an incentive stock option as defined in Section 422 of the Code and that the Original Option be converted to the Replacement Option in accordance with the provisions of Section 424(a) and 409A of the Code. |
AGREEMENT
| 1 | In consideration of the release of the Original Option under clause 2, the Company hereby grants to the Option Holder the Replacement Option on the terms of this Agreement and the rules set out in Schedule 1 (the “Rules”). The Date of Grant of the Replacement Option shall be deemed to be the same as the date of grant of the Original Option. |
| 2 | In consideration of the grant of the Replacement Option under clause 1, the Option Holder releases all rights the Option Holder has or may have under the Original Option. |
| 3 | The Rules are legally binding and are incorporated in the terms of your Replacement Option. They reflect the rules of [the NaturalMotion Limited Enterprise Management Incentive Scheme][the NaturalMotion Limited Option Plan 2012] save that references to NaturalMotion Limited and shares in NaturalMotion Limited are replaced by references to the Company and its shares. Terms not otherwise defined in this Option Agreement shall have the meanings set out in the Rules. |
| 4 | Details of your Replacement Option are as follows: |
| • | number of shares subject to your Replacement Option [ ] Company shares |
| • | Exercise Price under your Replacement Option $[ ] per Company share |
| • | Date of Grant of your Replacement Option [insert date of grant of Original Option] |
| • | Dates on which your Option may be exercised See Schedule 2 |
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| 5 | Your Replacement Option is exercisable only in accordance with the Rules. In particular, the Replacement Option is ordinarily only exercisable if the conditions set out in the attached schedule have been satisfied and then only in relation to that part of the Replacement Option which has vested in accordance with the attached schedule, which reflects the vesting schedule of the Original Option. |
| 6 | The Rules include provisions to allow exercise of the Replacement Option in certain circumstances (subject to the satisfaction of the conditions). These circumstances include death, injury, disability, redundancy, retirement, relocation abroad and takeover, reconstruction, amalgamation or winding-up of the Company. |
| 7 | The Replacement Option may not be exercised after the tenth anniversary of the original Date of Grant. The shares issued or transferred to you following your exercise of the Replacement Option will be subject to certain restrictions details of which are set out in Schedule 3 to this Agreement. Where the shares you acquire are subject to restrictions, you may be required under rule 12.4 to sign an election as a condition of exercise such that the restrictions are ignored in valuing the shares at the time of exercise. |
| 8 | Your Replacement Option shall be exercisable by delivery to [the Company] of the Notice of Exercise which is attached, together with payment for the shares and all tax which is due. |
| 9 | Federal, state or local income and employment tax contributions may become due, either directly or indirectly, as a result of the exercise of your Replacement Option or the sale of shares following exercise of the Replacement Option. If so, you will be required to make payment to the Company or your employing company of any federal, state or local income and employment taxes required by law to be paid in respect thereof. You will not be allowed to exercise the Replacement Option until you make such payment, or enter into arrangements for such payment to the satisfaction of the Company. If you dispose of shares acquired upon exercise of this option within two years from the Date of Grant or one year after such shares were acquired pursuant to exercise of this option, you must notify the Company in writing of such disposition. |
| 10 | Your Replacement Option is personal to you and, other than in the event of your death, is not transferable and will lapse immediately should you purport to transfer, charge or otherwise alienate the option. |
| 11 | Counterparts |
This Agreement may be executed in one or more counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, and all the counterparts shall together constitute the same instrument.
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EXECUTED by the Company and the option holder as a deed and delivered on [ ] 2014.
| [Zeus], Inc. |
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| Name: |
| Title: |
| Option Holder |
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| Name: |
| Witness: | Signature: | |
| Name: | ||
| Address: | ||
| Occupation: |
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SCHEDULE 1
The Rules
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SCHEDULE 2
Conditions of Exercise
The Replacement Option is exercisable subject to compliance with the following conditions:
| 1. | Taxes |
The Replacement Option may not be exercised unless and until you pay to the Company or your employing company, or make provision satisfactory to the Company or your employing company for payment of, any federal, state or local income and employment taxes required by law to be paid in respect of this Replacement Option.
| 2. | Vesting |
Subject to the achievement of the conditions set out in the Option Agreement, the Option will become exercisable as to [25% on the completion of 12 months from the Date of Grant and a further 2.08% per month thereafter, such that 100% of the Option may vest on the expiry of 48 months from the Date of Grant].
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SCHEDULE 3
Restrictions on Shares
Shares issued upon exercise of the Replacement Option will be subject to all relevant provisions of applicable law, including, without limitation, the U.S. Securities Act of 1933, as amended (and the rules and regulations thereunder), the U.S. Securities Exchange Act of 1934, as amended (and the rules and regulations thereunder), and the requirements of any stock exchange upon which such shares may then be listed (collectively, “Applicable Law”). In no event shall any shares be issued on exercise of a Replacement Option in violation of Applicable Law. In the event of any such violation, the Company and the Option Holder will cooperate in good faith to endeavour to meet the requirements of Applicable Law in a manner which preserves to the greatest extent possible the intent and purposes of the Replacement Option.
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