OPHTHALMIC IMAGING SYSTEMS STOCK OPTION AGREEMENT
Exhibit
99.2
This
Stock Option Agreement (this “Agreement”) is between Ophthalmic Imaging Systems,
a California corporation (the “Company”), and _____________________, an
individual (the “Optionee”). Each capitalized term used but not
defined herein shall have the meaning assigned to it in the Ophthalmic Imaging
Systems 2009 Stock Option Plan (the “Plan”).
The
parties agree as follows:
1. Option
Granted. The Company, in accordance with the allotment made by
the Administrators and subject to the terms and conditions of the Plan and this
Agreement, hereby grants to the Optionee an option to purchase an aggregate of
( ) shares of Common Stock at an exercise price of 0.XX United
States Dollars ($0.XX) per share, being at least equal to the fair market value
of such shares on the date hereof. This option is intended to
constitute an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”)
2. Term;
Vesting.
(a) The
term of this option shall be ten (10) years from the date hereof, subject to
earlier termination as provided in this Agreement and the Plan. This
option shall vest and become exercisable as to all of the shares of Common Stock
subject hereto upon the terms and conditions set forth on Exhibit A attached
hereto; provided, however, that the Optionee is then employed by the Company or
one of its affiliates.
(b) The
right to purchase shares of Common Stock under this option shall be cumulative,
so that if the full number of shares purchasable in a period shall not be
purchased, the balance may be purchased at any time or from time to time
thereafter, but not after the expiration of the term of this option as herein
provided and as provided in the Plan.
3. Exercise. This
option shall be exercised by giving written notice to the Company at its then
principal office, currently Ophthalmic Imaging Systems, 000 Xxxxxxx Xxx, Xxxxx
X, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Executive Officer, stating
that the Optionee is exercising the option hereunder, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor (a) in cash or by certified check, (b) with the consent
of the Company, with previously acquired shares of Common Stock that are fully
paid, vested, transferable and have been held by the Optionee for the requisite
period to avoid a charge to the Company’s earnings for financial accounting
purposes, or (c) with the consent of the Company, with a combination of the
foregoing.
4. Withholding
Taxes. The Company (or a Parent or any of its Subsidiaries)
may withhold cash and/or shares of Common Stock to be issued to the Optionee in
the amount that the Company (or a Parent or any of its Subsidiaries) determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant, exercise or disposition of this option or the
disposition of the underlying shares of Common Stock. Alternatively,
the Company (or a Parent or any of its Subsidiaries) may require the Optionee to
pay the Company (or a Parent or any of its Subsidiaries) such amount and the
Optionee agrees to pay such amount to the Company (or a Parent or any of its
Subsidiaries) in cash, promptly upon demand.
5. Compliance with Securities
Laws.
(a) Notwithstanding
anything herein to the contrary, this option shall not be exercisable by the
Optionee hereof unless (i) a registration statement under the Securities Act of
1933, as amended (the “Securities Act”), with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current and which remains effective and current at the time of exercise or (ii)
there is an exemption (without the necessity of any action on the part of the
Company to take any action to implement
such
exemption) from registration under the Securities Act for the issuance of shares
of Common Stock upon such exercise, and in any event shall be exercisable only
to the extent vested at the time of exercise. Nothing herein shall be
construed as requiring the Company to register the shares subject to this option
under the Securities Act or any state securities laws or to keep any
registration statement effective or current.
(b) Notwithstanding
anything herein to the contrary, if at any time the Administrators determine, in
their sole discretion, that the listing or qualification of the shares of Common
Stock subject to this option on any securities exchange, Nasdaq or under any
applicable law, or the consent or approval, or filing with, of any governmental
agency or regulatory body, is necessary or desirable as a condition to, or in
connection with, the granting of an option or the issue of shares of Common
Stock hereunder, this option may not be exercised in whole or in part
unless such filing, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Administrators.
6. Termination of
Relationship. Upon any termination of the Optionee’s
employment with the Company (or a Parent or any of its Subsidiaries), including
a termination by reason of the Optionee’s death or Disability, then the Optionee
may exercise the option as follows, and as more fully set forth in Section 8 of
the Plan:
(a) Upon
termination for any reason other than death or Disability of the Optionee, the
Optionee may exercise the option, to the extent vested and exercisable at the
time of termination of employment, at any time within (3) months after the date
of termination, but not thereafter and in no event after the date the option
would otherwise have expired; provided, however, that if the Optionee’s
employment is terminated for Cause, the option shall terminate
immediately.
(b) Upon
the death of the Optionee (i) during the Optionee’s employment with the Company,
(ii) within three (3) months of termination of such employment for any reason
(unless such termination was for Cause or without the consent of the Company),
or (iii) within one (1) year following the termination of such employment by
reason of the Optionee’s Disability, to the extent exercisable on the date of
the Optionee’s death, by the Optionee’s Legal Representative, at any time within
one (1) year after death, but not thereafter and in no event after the date the
option would otherwise have expired.
(c) At
any time within one (1) year after termination of the Optionee’s employment by
reason of Optionee’s Disability, but not thereafter and in no event after the
date the option would otherwise have expired.
To the
extent that the option is not vested at the time of termination of employment,
the option shall terminate.
7. Investment
Representations.
(a) The
Optionee hereby represents and warrants to the Company that, unless a
registration statement under the Securities Act with respect to the shares of
Common Stock to be received upon an exercise of this option is effective and
current at the time of exercise of this option, the shares of Common Stock to be
issued upon the exercise of this option will be acquired by the Optionee for the
Optionee’s own account, for investment only and not with a view to the
resale or distribution thereof. In any event, the Optionee shall
notify the Company of any proposed resale of the shares of Common Stock issued
to him upon exercise of this option. Any subsequent resale or
distribution of shares of Common Stock by the Optionee shall be made only
pursuant to (i) a registration statement under the Securities Act that is
effective and current with respect to the sale of shares of Common Stock being
sold, or (ii) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to any
offer of sale or sale of such shares of Common Stock, provide the Company
(unless waived by the Company) with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution and, in each such case, in full compliance with all applicable
state securities laws. Such representations and warranties shall also
be deemed to be made by the Optionee upon each exercise of this
option.
(b) The
Optionee represents and agrees that the Optionee will comply with all applicable
laws relating to the Plan and the grant and exercise of this option and the
disposition of the shares of Common Stock acquired upon exercise of the option,
including, without limitation, federal and state securities and “blue sky”
laws
8. Legends. The
Company may affix such appropriate legend or legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may issue such
“stop transfer” instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary, appropriate or desirable to
(a) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act or any applicable state securities law, or
(b) implement the provisions of the Plan or this Agreement or any other
agreement between the Company and the Optionee with respect to such shares of
Common Stock.
9. No Right to
Employment. Nothing in the Plan or in this Agreement shall
confer upon the Optionee any right to continue as an employee, officer or
director of, or consultant or advisor to, the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate the Optionee’s relationship therewith at any
time for any reason whatsoever without liability to the Company, any Parent or
any of its Subsidiaries.
10. Subject to
Plan. The Company and the Optionee are subject to and bound by
all of the terms and conditions of the Plan, a copy of which is attached hereto
as Exhibit B and made a part hereof. In the event of a conflict
between the terms of this Agreement and the terms of the Plan, the terms of the
Plan shall govern.
11. Business
Days. In the event that any action (or vesting of shares)
hereunder is required to occur on a day that is a Saturday, a Sunday or a day
that is a legal holiday for banks in the state of New York, then any such action
(or vesting of shares) shall take place on the first day that is not a Saturday,
a Sunday or a day that is a legal holiday for banks in the state of New
York.
12. Transfer Limitations -
Option. This option is not transferable by the Optionee and
may be exercised (a) during the lifetime of the Optionee, only by the Optionee
and (b) after the death of the Optionee, only by the personal representative of
the Optionee’s estate.
13. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of any successor or assign of the Company and to the personal
representative of the Optionee’s estate.
14. Governing
Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, without regard
to the conflict of law provisions or any other law that would defer to the
substantive laws of another jurisdiction.
15. Partial
Invalidity. The invalidity, illegality or unenforceability of
any term or provision herein shall not affect the validity, legality or
enforceability of any other term or provision, all of which shall be valid,
legal and enforceable to the fullest extent permitted by applicable
law. This Agreement shall not be construed or interpreted with any
presumption against the Company by reason of the Company causing this Agreement
to be drafted.
16. Entire
Agreement. This Agreement (together with the Plan) constitutes
the entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes any prior and/or contemporaneous agreements
or understandings with respect thereto (whether written or oral), all of which
are merged herein. This Agreement may not be amended or modified
except by an instrument in writing signed by the parties hereto, and no term or
provision hereof may be waived by any party except by an instrument in writing
signed by such party. Notwithstanding the foregoing, the Optionee
agrees that the Company may amend the Plan and the options granted to the
Optionee under the Plan, subject to the limitations contained in the
Plan.
[The
next page is the signature page]
The
parties have executed and delivered this Incentive Stock Option Agreement as of
the date first written above.
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By:
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| Xxx Xxxxx, Chief Executive Officer | |||
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OPTIONEE:
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Printed
Name
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