Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is entered into as of January
1, 1999, the "EFFECTIVE DATE") by and between SmartDisk Corporation, a Delaware
corporation ("COMPANY") and Xxxxxxx X. Xxxxxxxxx ("EMPLOYEE").
1. EMPLOYMENT RELATIONSHIP.
1.1 COMMENCEMENT AND TERM OF EMPLOYMENT. The Company employs
Employee and Employee accepts employment by the Company as of the Effective Date
on the terms and conditions set forth in this Agreement. The term of employment
("TERM OF EMPLOYMENT") shall commence as of the Effective Date and shall
continue thereafter for a period of thirty-six (36) months unless sooner
terminated pursuant to Section 5.
1.2 DUTIES. During the Term of Employment, Employee shall have
the title and perform and faithfully discharge the duties and responsibilities
of President and Chief Executive Officer of the Company. Employee shall use his
best efforts to perform and discharge such duties and responsibilities in such
manner as the Company's Board of Directors may reasonably prescribe to Employee
from time to time. Employee shall also use his best efforts to observe all
policies, procedures and other requirements not inconsistent with this Agreement
that may be implemented or revised by the Company during the Term of Employment.
1.3 COMMITMENT OF EMPLOYEE. Employee shall devote
substantially all of his productive business time, attention, knowledge and
skill exclusively to the performance of his duties hereunder throughout the Term
of Employment and shall at all times discharge his duties faithfully,
industriously and to the best of his ability, experience and talents.
2. COMPENSATION.
2.1 SALARY. For all of Employee's services during the Term of
Employment, Employee shall be paid a salary of Two Hundred Seventy Five Thousand
Dollars ($275,000.00) per year. Employee shall be eligible for merit increases
as determined by the Board of Directors after the first anniversary of the
Effective Date of this Agreement. Payment shall be made in periodic installments
in accordance with Company's payroll policies instituted from time to time. Upon
termination of this Agreement pursuant to Section 5, the Company shall have no
obligation to pay salary or other benefits to Employee except as may be provided
in Section 5.
2.2 BONUS. Employee shall be entitled to an annual bonus
pursuant to Company's incentive plan set forth in EXHIBIT A (the "INCENTIVE
PLAN") attached hereto, or as the same may be amended by the Compensation
Committee of the Board of Directors. Upon attainment of one hundred percent
(100%) of the objective set forth in the Incentive Plan, Employee shall be
entitled to a bonus in the first year of One Hundred Twenty Five Thousand
Dollars ($125,000.00). Said bonus shall be payable on the dates established by
the Company for payment of quarterly and annual bonuses and shall be payable
only if Employee continues to remain in the employ of the Company on such date;
provided, however, that in the event the Company terminates Employee's
employment hereunder without cause pursuant to Section 5.4, Incentive Plan bonus
may be paid in accordance with Section 5.5.
2.3 EMPLOYEE BENEFITS. During the Term of Employment, Employee
shall be entitled to participate in the group medical, dental and disability
policies and other benefits maintained from time to time by the Company for the
benefit of senior officers of the Company. During the Term of Employment,
Employee shall be entitled to receive all other benefits, and to participate in
all other benefit plans, as are generally available to employees of the Company
on the same terms as other senior management employees. Employee shall be
entitled to reimbursement for all usual and customary business expenses in
reasonable amount incurred by Employee in the performance of his duties for the
Company in accordance with the Company's then current expense reimbursement
policies and guidelines.
2.4 STOCK OPTION. Employee shall receive an incentive stock
option in the form attached as EXHIBIT B-1 pursuant to which Employee shall be
entitled to purchase two hundred seventy-one thousand eight hundred fifty-eight
(271,858) shares of the Company's Common Stock at an exercise price of not more
than $1.20 per share and a non-statutory stock option in the form attached
hereto as EXHIBIT B-2 pursuant to which Employee shall be entitled to purchase
seventy-eight thousand one hundred forty-two (78,142) shares of the Company's
Common Stock at a price of not more than $1.20 per share.
3. VACATIONS. During the Term of Employment, Employee shall be entitled
to fifteen (15) days of paid vacation per year, plus a one-time carry-over of
the amount of accrued and unpaid vacation time and other personal time off from
Xxxxxxx International Systems Corporation ("FISC VACATION TIME"). Other than the
FISC Vacation Time, in no event shall Employee be entitled to accrue and carry
forward more than five (5) days of paid vacation from any calendar year to
another, and if Employee has reached this total, no further vacation days shall
accrue until the total of accrued but unused vacation days falls below such
maximum.
4. PLACE OF BUSINESS. During the Term of Employment, Employee shall
render services hereunder at the Company's principal executive offices in
Naples, Florida, or any successor principal office. Employee shall also be
available to travel for business purposes incident to the performance of his
duties, as required from time to time. Transportation, lodging and meal expenses
shall be incurred and reimbursed in accordance with the general policy of the
Company as adopted by the Company from time to time
5. EARLY TERMINATION.
5.1 TERMINATION UPON PERMANENT DISABILITY OR DEATH. This
Agreement shall automatically terminate upon the permanent disability or death
of Employee, subject to the obligation of the Company to pay Employee or
Employee's personal representative or designated beneficiary, as the case may
be, (i) the balance of Employee's salary and other benefits for the remainder of
the month in which disability or death occurs, (ii) a pro rata portion of any
bonus to which Employee was otherwise entitled under Section 2.2 based upon the
ratio the number of months employed (calculated through the end of the then
current month) bears to the bonus period of twelve (12) months and (iii) any
other disability benefits described in this Section 5.1 to which Employee may be
entitled. The Company will continue to pay Employee his regular salary during
any period during which Employee is incapable of continuing the further
performance of Employee's normal employment activities with the Company because
of a mental, emotional or physical injury, sickness or disorder. However, when
such period exceeds an aggregate of sixty (60) business days (exclusive of any
accrued vacation within the limits set forth above) out of any three hundred
sixty-five (365) consecutive calendar days, Employee shall be deemed permanently
disabled. Employee shall also be deemed permanently disabled if so certified by
any two physicians, or upon the expiration of any elimination period under any
disability insurance policy purchased by the Company for the benefit of
Employee. Should Employee become permanently disabled, Employee or his personal
representative shall be entitled to receive his termination compensation set
forth in subsections (i), (ii) and (iii) above, as well as any disability
benefits maintained for Employee by the Company, if any, pursuant to the terms
and subject to the conditions of any such applicable disability benefit program
or policy.
5.2 TERMINATION FOR CAUSE. During the Term of Employment, the
Company may at any time, without giving notice to Employee, immediately
terminate this Agreement if Employee (a) commits any act of embezzlement, theft,
fraud or dishonesty; (b) engages in unfair competition with the Company or any
subsidiary of the Company whether or not wholly-owned; (c) is convicted of any
felony; (d) breaches any material provision of the Confidentiality Agreement
entered into by Employee pursuant to Section 6 of this Agreement; (e) uses
illegal drugs or other substances or (f) willfully breaches any other material
provision of this Agreement. If Employee materially breaches or habitually
neglects or fails in any material way to perform the usual and customary duties
of his job, or any other duties required to be performed under the terms of this
Agreement, or the policies of the Company, the Company may, at its option,
terminate this Agreement by giving written notice of termination to Employee.
Any termination pursuant to either of the two preceding sentences shall be
without prejudice to any other remedy to which the Company may be entitled
either at law, in equity, or under this Agreement. Before the Company may
terminate this Agreement by reason of Employee's habitual neglect of or failure
to perform the usual and customary duties of his job or policies of the Company,
the Company must first notify Employee in writing, setting forth in detail those
duties and/or policies which Employee has habitually neglected or failed to
perform, and provide Employee a reasonable period of time, not to exceed thirty
(30) days, in which to cure such neglect or failure. If Employee does not cure
the specified areas of neglect of failure, the Company may terminate this
Agreement immediately by giving Employee written notice. At the time of any
termination for cause, Employee shall be entitled to receive any salary and
employment benefits which shall have accrued prior to the date of termination,
but shall not be entitled to any bonus or severance payments, salary or
employment benefits relating to periods subsequent to the date of termination,
subject to Employee's rights to continue medical and dental coverage under the
Company's group policy, at Employee's expense, as may be provided by law.
5.3 TERMINATION BY EMPLOYEE. This Agreement may be terminated
by Employee for any reason, or no reason, by giving thirty (30) days' written
notice of termination to the Company. Upon termination by Employee, all rights
accruing to Employee under the terms of this Agreement shall cease, and Employee
shall not be entitled to any bonus or severance payments, salary or employment
benefits, except to the extent earned and accrued prior to the termination date,
and subject to Employee's rights to continue medical and dental coverage under
the Company's group policy, at Employee's expense, as may be provided by law.
5.4 TERMINATION WITHOUT CAUSE. Employee's employment with the
Company during the Term of Employment may be terminated by the Company at any
time without cause, by the Company's giving thirty (30) days prior written
notice. A termination without cause, for purposes of this Agreement, means
termination by the Company other than as provided for in Sections 5.1 and 5.2.
5.5 SEVERANCE PAYMENTS. If Employee is terminated pursuant to
Section 5.4, Employee shall be entitled to severance pay in accordance with the
Company's normal payroll practices at the rate of Employee's salary for such
year set forth in Section 2.1 for a period of six (6) months following
termination together with fifty percent (50%) of the Incentive Plan target bonus
for such year, if any, described in Section 2.2. All bonuses shall be payable
only at the discretion of the Compensation Committee of the Board of Directors
and shall reflect Employee's performance to the date of termination. All
severance pay shall be payable in equal consecutive monthly installments on the
last day of each month following the effective date of Employee's termination
for the number of months of severance pay to which Employee is entitled
hereunder. Any pro rata bonus shall be payable on the effective date of
termination of employment. Employee understands and agrees that such payments
shall be his only entitlement as and for severance pay or severance
compensation. Upon termination pursuant to Section 5.4, except for the severance
payments stated above, all rights and obligations accruing to Employee under the
terms of this Agreement or otherwise shall cease, and Employee shall not be
entitled to any further salary or employment benefits, except to the extent
earned and accrued prior to such date, and subject to Employee's rights to
continue medical and dental coverage under the Company's group policy, at
Employee's expense, as may be provided by law.
6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Concurrently with the
execution and delivery of this Agreement, Employee agrees to enter into the
Company's Confidentiality Agreement for senior executive officers of the Company
in the form attached as EXHIBIT C (the "CONFIDENTIALITY AGREEMENT"). In the
event of any inconsistency between the terms and provisions of this Agreement
and those of the Confidentiality Agreement, the terms and provisions of this
Agreement shall prevail.
7. NON-COMPETITION.
7.1 AGREEMENT NOT TO COMPETE. Employee agrees that during the
Term of Employment and for the period thereafter specified in the next sentence,
Employee will not engage, directly or indirectly, either as principal, agent,
consultant, proprietor, stockholder, director, officer or Employee, or
participate in the ownership, management, operation or control of any other
business engaged in the type of business conducted by the Company. Such
agreement not to compete shall extend after the date of termination for one year
if employee voluntarily terminates his employment and for a period of six (6)
months if the Company involuntarily terminates Employee's employment. This
Section 7.1 shall not apply to Employee's ownership of less than one percent
(1%) of the capital stock of any corporation having a class of capital stock
which is traded on any national stock exchange or in the over-the-counter
market.
7.2 SOLICITATION. During the Term of Employment, and for the
period of two (2) years thereafter, Employee agrees that he will not, without
the Company's prior written consent, solicit or encourage any of the employees
of the Company or Xxxxxxx International Systems Corporation ("FISC") to leave
the employ of the Company or FISC, or terminate or alter their contractual
relationships in a way that is adverse to the Company's or FISC's interest or,
during the period of Employee's employment, solicit business from any customer
of the Company on behalf of any competitor of the Company.
8. MISCELLANEOUS.
8.1 GOVERNING LAWS. It is the intention of the parties hereto
that the internal laws of the State of Florida (irrespective of its choice of
law principles) shall govern the validity of this Agreement, the construction of
its terms, and the interpretation and enforcement of the rights and duties of
the parties hereto.
8.2 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and
unless otherwise provided in, this Agreement, each and all of the covenants,
terms, provisions, and agreements contained herein shall be binding upon, and
inure to the benefit of, the permitted successors, executors, heirs,
representatives, administrators and assigns of the parties hereto. Employee may
not assign this Agreement or any of Employee's rights hereunder except as
provided herein or with the prior written consent of the Company.
8.3 SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
8.4 ENTIRE AGREEMENT. This Agreement (together with the Option
and Confidentiality Agreement) constitutes the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and
thereof and supersede all prior and contemporaneous agreements or understanding,
inducements or conditions, express or implied, written or oral, between the
parties with respect hereto and thereto.
8.5 AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof or default in the performance hereof
shall not be deemed to constitute a waiver of any other default or any
succeeding breach or default.
8.6 NO WAIVER. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
8.7 NOTICES. Whenever any party hereto desires or is required
to give any notice, demand, or request with respect to this Agreement, each such
communication shall be in writing and shall be effective only if it is delivered
by personal service or mailed, United States certified mail, postage prepaid,
addressed as follows:
Company: 0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000-0000
Attn: Chairman of the Board
Employee: To the address set forth on the signature
page hereof
Such communications shall be effective when they are received
by the addressee thereof; but if sent by certified mail in the manner set forth
above, they shall be effective no later than five (5) days after being deposited
in the United States mail. Any party may change its address for such
communications by giving notice thereof to the other party in conformity with
this Section.
8.8 FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
8.9 INSURABLE INTEREST. Employee hereby grants to the Company
an insurable interest in Employee's life, and agrees and understands that the
Company may at any time or from time to time during the Term of Employment
choose to purchase and maintain key man life insurance on Employee.
8.10 EMPLOYEE'S REPRESENTATIONS. Employee represents and
warrants that he is free to enter into this Employment Agreement and to perform
each of the terms and covenants of it. Employee represents and warrants that he
is not restricted or prohibited, contractually or otherwise, from entering into
and performing this Employment Agreement, and that his execution and performance
of this Employment Agreement is not a violation or breach of any other agreement
between Employee and any other person or entity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove written.
EMPLOYEE'S ADDRESS FOR NOTICE: EMPLOYEE:
/s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
COMPANY:
SMARTDISK CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Exhibit A
MEMORANDUM
Date: January 28, 1999
To: Xxxxxxx Xxxxxxxxx
From: SmartDisk Corporation
Compensation Committee
Subject: Management Incentive Plan
--------------------------------------------------------------------------------
It is with enormous pleasure and a sense of positive anticipation that I
am providing you with your 1999 Management Incentive Plan. I am convinced that,
though ambitious, our objectives this year are realistic and attainable.
Specifically, your 1999 WORLDWIDE financial objectives are (in $U.S.):
ANNUAL TOTAL REVENUE...................................... 30,008,000
First Quarter........................................ 4,583,000
Second Quarter....................................... 6,536,000
Third Quarter........................................ 8,315,000
Fourth Quarter....................................... 10,574,000
ANNUAL TOTAL PROFIT........................................ 300,000
First Quarter........................................ (1,556,000)
Second Quarter....................................... (253,000)
Third Quarter........................................ 621,000
Fourth Quarter....................................... 1,488,000
Your individual Management Incentive Plan for 1999 is attached.
***** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
The following terms and conditions apply to your 1999 Management Incentive Plan:
1. Only the Chairman of the Board, or the President and Chief Executive
Officer of SmartDisk Corporation may award a bonus/incentive. The
bonus/incentive, when awarded, will be in accordance with the attached
plan. The Chairman of the Board and/or the President and Chief
Executive Officer of SmartDisk Corporation reserves the right to modify
any element of the attached bonus/incentive plan at any time prior to
the award of a bonus/incentive. Any bonus/incentive/plan may be
rescinded, in whole or part, at any time. There is no contractual
obligation on the part of SmartDisk Corporation to fund the
bonus/incentive plan, and it is entirely gratuitous in nature.
2. Any disagreement with or interpretation of the incentive plans will be
resolved by the Chairman or President. Such resolution will be final.
3. In the event an executive/manager ceases to be employed by SmartDisk
Corporation during 1999, he or she may, at the sole discretion of the
Chairman or President of SmartDisk Corporation:
a) receive a pro-rated quarterly bonus for the quarter
in which the cessation of employment occurs; and
b) receive a pro-rated annual bonus for the fiscal year.
4. Quarterly bonuses are planned to be paid within 45 days of the last day
of the quarter.
5. Annual bonuses are planned to be paid on or prior to February 15, 2000.
Best of luck in 1999 and let us all dedicate ourselves to "REACHING THE NEXT
CREST"
Xxxxxxx Xxxxxxxxx
President, CEO
1999 INCENTIVE PLAN
REVENUE PROFIT TOTAL
TOTAL TARGET ANNUAL BONUS 100% 125,000 Q1 9,375 6,250 15,625
Portion Based on Revenue 60% 75,000 Q2 9,375 6,250 15,625
Portion Based on Profit 40% 50,000 Q3 9,375 6,250 15,625
Q4 9,375 6,250 15,625
------------------------------
Quarterly Weighting 50% 62,500 37,500 25,000 62,500
Year-End Weighting 50% 62,500 Year-End 37,500 25,000 62,500
==============================
75,000 50,000 125,000
ANNUAL REVENUE QUARTERLY REVENUE
----------------------- ------------------------------------------------------
TARGET ANNUAL QTLY
REVENUE BONUS Q1 Q2 Q3 Q4 BONUS
----------------------- ------------------------------------------------------ ACTUAL
000's 000's Rev Bonus
------------- -------------------------------------------
27,000 15,000 4,125 5,882 7,484 9,517 3,000 Q1
28,500 25,000 4,354 6,209 7,899 10,045 5,000 Q2
30,008 37,500 4,583 6,536 8,315 10,574 9,375 Q3
33,000 40,000 5,041 7,190 9,147 11,631 12,000 Q4
36,000 43,000 5,500 7,843 9,978 12,689 14,000 0 0
39,000 46,000 5,958 8,497 10,810 13,746 16,000
42,000 49,000 6,416 9,150 11,641 14,804 18,000 Year-End
45,000 52,000 6,875 9,804 12,473 15,861 20,000 Total 0 0
ANNUAL P & L QUARTERLY P & L
----------------------- ------------------------------------------------------
TARGET ANNUAL QTLY
P & L BONUS Q1 Q2 Q3 Q4 BONUS
----------------------- ------------------------------------------------------ ACTUAL
000's 000's P&L Bonus
------------- -------------------------------------------
No Bonus - No Bonus No Bonus 250 1,000 2,000 Q1
- 15,000 No Bonus No Bonus 500 1,250 4,000 Q2
300 25,000 (1,556) (253) 621 1,488 6,250 Q3
500 27,000 (1,250) - 750 1,750 8,000 Q4
1,000 29,000 (1,000) 250 1,000 2,000 9,000 0 0
1,500 31,000 (750) 500 1,250 2,250 10,000
2,000 33,000 (500) 750 1,500 2,500 11,000 Year-End
2,500 35,000 (250) 1,000 1,750 2,750 12,000 Total 0 0
Annual Quarterly
Incr Adj (IncrnAdj (ProfiIncr Adj (RIncruAdj (Profit) Profit numbers are NET of BOTH bonus costs
Budget - - - - First have to deduct Incremental revenue bonus cost
Budget +1 (10) (10) (5) (5) BEFORE calculating gross bonus profit qualifier. If
Budget +2 (20) (20) (10) (10) resulting profit number equals or exceeds profit plus
Budget +3 (30) (30) (15) (15) incremnetal adjustment then profit bonus is paid.
Budget +4 (40) (40) (20) (20)
Budget +5 (50) (50) (25) (25)
***** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT B-1
THE SECURITY REPRESENTED BY THIS AGREEMENT HAS BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SMARTDISK CORPORATION
EMPLOYEE INCENTIVE STOCK OPTION AGREEMENT
(CHANGE OF CONTROL PROVISIONS)
THIS EMPLOYEE INCENTIVE STOCK OPTION AGREEMENT ("AGREEMENT") by and
between SmartDisk Corporation, a Delaware corporation (the "COMPANY"), and
XXXXXXX X. XXXXXXXXX (the "EMPLOYEE") is made as of the 11th day of February,
1999 (such date being sometimes referred to herein as the "DATE OF GRANT").
R E C I T A L S
A. The Company has adopted and implemented its 1998 Employee Stock
Option Plan (the "PLAN") permitting the grant of stock options to employees of
the Company and its subsidiary corporations (as defined in the Plan), some of
which are intended to be incentive stock options within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "INTERNAL REVENUE
CODE"), to purchase shares of the authorized but unissued Common Stock or
treasury shares of the Company ("COMMON STOCK").
B. The Board of Directors (or a duly authorized Committee thereof) of
the Company (in either case, referred to herein as the "BOARD") has authorized
the granting of a stock option to the Employee, thereby allowing the Employee to
acquire an ownership interest (or increase his or her ownership interest) in the
Company.
A G R E E M E N T
NOW, THEREFORE, in reliance on the foregoing Recitals and in
consideration of the mutual covenants hereinafter set forth, the parties hereby
agree as follows:
1. GRANT OF STOCK OPTION. The Company hereby grants to the Employee a
non-transferable and non-assignable option to purchase an aggregate of up to TWO
HUNDRED SEVENTY-ONE THOUSAND EIGHT HUNDRED FIFTY EIGHT (271,858) shares of the
Company's Common Stock, par value $.001, at the exercise price of ONE DOLLAR AND
TWENTY CENTS ($1.20) per share, upon the terms and conditions set forth herein
(such purchase right being sometimes referred to herein as "THE OPTION" or "THIS
OPTION").
2. TERM AND TYPE OF OPTION. Unless earlier terminated in accordance
with Sections 6 or 7.2 hereof, the Option and all rights of the Employee to
purchase Common Stock hereunder shall expire with respect to all of the shares
then subject to this Agreement at 5:00 p.m. Eastern time on FEBRUARY 11, 2009
(the "OPTION EXPIRATION DATE"). This Option is intended to qualify as an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code but the Company does not represent or warrant that this Option qualifies as
such. Accordingly, the Employee understands that in order to obtain the benefits
of incentive stock option treatment under Section 421 of the Internal Revenue
Code, no sale or other disposition may be made of any shares acquired upon
exercise of this Option for at least one (1) year after the date of the
issuance of such
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 2
shares upon exercise hereunder AND for at least two (2) years after the Date of
Grant of this Option. (NOTE: If the aggregate exercise price of the Option (that
is, the exercise price set forth in Section 1 multiplied by the number of shares
subject to the Option set forth in Section 1) plus the aggregate exercise price
of any other incentive stock options held by the Employee (whether granted
pursuant to the Plan or any other stock option plan of the Company) is greater
than one hundred thousand dollars ($100,000), the Employee should contact the
Chief Financial Officer of the Company to ascertain whether the entire Option
qualifies as an incentive stock option).
3. EXERCISE SCHEDULE. Subject to the remaining provisions of this
Agreement, this Option shall be exercisable as follows:
3.1 EXERCISE DATES. Commencing upon the first anniversary of
February 11, 1999 (the "VESTING START DATE"), Employee may exercise this Option
pursuant to the following schedule:
VEST DATE NO. OF SHARES
--------- -------------
02/11/00 83,333
02/11/01 21,875
05/11/01 21,875
08/11/01 21,875
11/11/01 17,700
02/11/02 21,875
05/11/02 21,875
08/11/02 21,875
11/11/02 17,700
02/11/03 21,875
Therefore, this Option shall become fully exercisable as of February 11, 2003.
In no event shall the Option be exercisable for more shares than the number of
shares set forth in Section 1.
3.2 CUMULATIVE NATURE OF EXERCISE SCHEDULE. The exercise dates
specified above refer to the earliest dates on which the Option may be exercised
with respect to the stated number of shares of the Common Stock covered by this
Option and this Option may be exercised with respect to all or any part of any
such number of the total shares at any time on or after such dates (until the
expiration date specified in Section 2 above or any earlier termination of this
Option pursuant to Section 6 or 7.2 of this Agreement). Except as permitted in
Section 6, the Employee must be and remain in the employ of the Company, or of
any Parent corporation or Subsidiary corporation of the Company (as defined in
Internal Revenue Code Sections 424(e) and (f)), during the entire period
commencing with the Date of Grant of this Option and ending with each of the
periods appearing in the above schedule in order to exercise this Option with
respect to the shares applicable to any such period. Except as otherwise
expressly provided in this Agreement, the Employee's employment shall be deemed
to have terminated upon an actual termination of employment and upon such Parent
corporation or Subsidiary corporation of the Company ceasing to have such
relationship with the Company. Any references in this Agreement to the
Employee's employment with the Company shall be
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 3
deemed to also refer to the Employee's employment with any Parent corporation or
Subsidiary corporation of the Company, as applicable.
3.3 CHANGE OF CONTROL. In the event of a Change of Control (as
defined below), one hundred percent of the unvested Shares under this Option
shall immediately become vested Shares as of the consummation of such Change of
Control. The vesting that was permissible solely by reason of this Section shall
be conditioned upon the consummation of the Change in Control. A "Change of
Control" shall be deemed to have occurred in the event any of the following
occurs with respect to the Company:
3.3.1 the direct or indirect sale or exchange by the
stockholders of the Company of all or substantially all of the stock of the
Company where the stockholders of the Company before such sale or exchange do
not retain, directly or indirectly, at least a majority of the beneficial
interest in the voting stock of the Company after such sale or exchange.
3.3.2 a merger or consolidation in which the Company
is not the surviving corporation, other than (i) a merger in which the
stockholders of the Company before such merger or consolidation retain directly
or indirectly, at least a majority of the voting stock of the surviving
corporation or the parent corporation of the surviving corporation and the
Options are assumed or substituted by the surviving corporation which assumption
or substitution shall be binding on Employee, or (ii) a merger or consolidation
with a wholly-owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
the stockholders of the Company and the Options are assumed or substituted by
the surviving, continuing, successor or parent corporation, which assumption or
substitution shall be binding on the Employee.
3.3.3 a merger or consolidation in which the Company
is the surviving corporation where the stockholders of the Company before such
merger or consolidation do not retain, directly or indirectly, at least a
majority of the voting stock of the Company after such merger or consolidation.
3.3.4 the sale, exchange, or transfer of all or
substantially all of the assets of the Company other than a sale, exchange, or
transfer to one (1) or more subsidiaries of the Company.
3.3.5 a liquidation or dissolution of the Company.
3.3.6 any other transaction which qualifies as a
"corporate transaction" under Section 424 of the Code wherein the stockholders
of the Company give up all of their equity interest in the Company (except for
the acquisition, sale or transfer of all or substantially all of the outstanding
shares of the Company).
3.4 OVERRIDING LIMITATION ON TIME FOR EXERCISE.
Notwithstanding any other provisions of this Agreement, the Option may not be
exercised after the expiration of ten (10) years from the Date of Grant.
4. RIGHT OF FIRST REFUSAL. The Employee and successors-in-interest to
Employee shall not sell, assign, pledge or in any manner transfer any of the
shares of the Common Stock purchased hereunder, or any right or interest
therein, whether voluntarily or by operation of law, or by gift or otherwise,
except for a transfer which meets the requirements hereinafter set forth.
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 4
4.1 NOTICE OF PROPOSED SALE. If the Employee desires to sell
or otherwise transfer any of his or her shares of Common Stock, the Employee
shall first give written notice thereof to the Company. The notice shall name
the proposed transferee and state the number of shares to be transferred, the
proposed consideration and all other material terms and conditions of the
proposed transfer.
4.2 OPTION OF COMPANY TO PURCHASE. For forty-five (45) days
following receipt of such notice, the Company (and its assignees as provided in
Section 4.3 below) shall have the option to elect to purchase all of the shares
specified in the notice at the price and upon the terms set forth in such
notice; provided that if the terms of payment set forth in the Employee's notice
were other than cash against delivery, the Company (and its assignees) shall pay
cash for said shares equal to the fair market value thereof as determined in
good faith by the Board, except that to the extent such consideration is
composed, in whole or in part, of promissory notes, the Company (and its
assignees) shall have the option of similarly issuing promissory notes of like
form, tenor and effect. Notwithstanding the foregoing, in the event that the
Employee disagrees with the determination of fair market value made by the
Board, the Employee shall have the right to have such fair market value
determined by arbitration in accordance with the rules of the American
Arbitration Association. The arbitration shall be held in the county in which
the Company has its executive offices. The cost of the arbitration shall be
borne in equal shares by the Company and the Employee. In the event the Company
(and its assignees) elects to purchase all of such shares, it shall give written
notice to the Employee of its election and settlement for such purchase of
shares shall be made as provided below in Section 4.4.
4.3 ASSIGNABILITY OF COMPANY'S RIGHTS HEREUNDER. The Company
may at any time transfer and assign its rights and delegate its obligations
under this Section 4 to any other person, corporation, firm or entity, including
its officers, directors or stockholders, with or without consideration.
4.4 CLOSING OF COMPANY PURCHASE. In the event the Company (or
its assignees) elects to acquire all of those shares of the Employee as
specified in the Employee's notice, the Secretary of the Company shall so notify
the Employee within forty-five (45) days after receipt of the Employee's notice,
and settlement thereof shall be made in cash or as otherwise set forth above
within forty-five (45) days after the date the Secretary of the Company gives
the Employee notice of the Company's election.
4.5 TRANSFERRED SHARES REMAIN SUBJECT TO RESTRICTIONS. In the
event the Company (or its assignees) do not elect to acquire all of the shares
specified in the Employee's notice, the Employee may, within the sixty (60) day
period following the expiration of the forty-five (45) day period for electing
to exercise the purchase rights granted to the Company (and its assignees) in
Section 4.2, transfer the shares in the manner specified in his or her notice.
In that event, the transferee, assignee or other recipient shall, as a condition
of the transfer of ownership, receive and hold such shares subject to the
provisions of Sections 4, 5, 10, 13-21 of this Agreement and shall execute such
documentation as may be requested by the Company, including, but not limited to,
an investment representation letter containing provisions similar to those set
forth in the Notice of Exercise and Investment Representation Statement attached
as EXHIBIT A hereto.
4.6 EXCEPTIONS TO FIRST REFUSAL RIGHTS. Anything to the
contrary contained herein notwithstanding, the following transactions shall be
exempt from the provisions of this Section 4 (provided that the transferee shall
first agree in writing, satisfactory to the Company, to be bound by the terms
and provisions of Sections 4, 5, 10 and 13-21 hereof):
4.6.1 TRANSFER TO FAMILY MEMBER. The Employee's
transfer of any or all shares held subject to this Agreement (either during the
Employee's lifetime or on death by will or intestacy) to such
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 5
Employee's Immediate family, as herein defined, or to any custodian or trustee
for the account of the Employee or his or her Immediate family. "Immediate
family" as used herein shall mean spouse, lineal descendants, father, mother, or
brother or sister of the Employee.
4.7 WAIVERS BY THE COMPANY. The provisions of this Section 4
may be waived by the Company with respect to any transfer proposed by the
Employee only by duly authorized action of the Board.
4.8 UNAUTHORIZED TRANSFERS VOID. Any sale or transfer, or
purported sale or transfer, of the Common Stock subject to this Agreement shall
be null and void unless the terms, conditions and provisions of this Section 4
are strictly complied with.
4.9 TERMINATION OF FIRST REFUSAL RIGHT. The foregoing right of
first refusal shall terminate upon the earlier of:
4.9.1 PUBLIC OFFERING. The date equity securities of
the Company are first offered and sold to the public generally pursuant to a
registration statement filed with, and declared effective by, the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "SECURITIES ACT"); or
4.9.2 ACQUISITION OF THE COMPANY. Immediately prior
to the acquisition of substantially all of the business and assets of the
Company by an unaffiliated third party (as determined by the Board), whether by
merger, sale of outstanding stock or of the Company's assets, or otherwise,
where no express provision is made for the assignment and continuation of the
Company's rights hereunder by a new or successor corporation.
5. AGREEMENT TO LOCK-UP IN THE EVENT OF PUBLIC OFFERING. In the event
of a public offering of the Company's Common Stock pursuant to a registration
statement declared effective with the SEC, if requested by the Company or by its
underwriters, the Employee agrees not to sell, sell short, grant any option to
buy or otherwise dispose of the shares of Common Stock purchased pursuant to
this Agreement (except for any such shares which may be included in the
registration) for a period of up to one hundred eighty (180) days following the
consummation of such offering. The Company may impose stop-transfer instructions
with respect to the shares of the Common Stock subject to the foregoing
restriction until the end of said period. The Employee shall be subject to this
Section 5 provided and only if the executive officers and directors of the
Company are also subject to similar arrangements.
6. RIGHTS ON TERMINATION OF EMPLOYMENT. Upon the Employee's termination
of employment with the Company (and with any Parent or Subsidiary corporation of
the Company as defined in Section 3.2 above), the Employee's right to exercise
this Option shall be limited in the manner set forth in this Section 6 (and this
Option shall terminate in the event not so exercised), and shall also be subject
to the limitation provided in Section 3.3.
6.1 DEATH. If the Employee's employment with the Company is
terminated by death, the Employee's estate may, for a period of twelve (12)
months following the date of such termination, exercise the Option to the extent
it was exercisable by the Employee on the date of such termination. The
Employee's estate shall mean the Employee's legal representative upon death or
any person who acquires the right to exercise the Option by reason of such death
in accordance with Section 8.2.
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 6
6.2 RETIREMENT. If the Employee's employment with the Company
is terminated by voluntary retirement at or after reaching sixty-five (65) years
of age, the Employee may, within three (3) months following such termination,
exercise the Option to the extent it was exercisable by the Employee on the date
of such termination unless the Employee dies prior thereto, in which event the
Employee shall be treated as though the Employee had died on the date of
retirement and the provisions of Section 6.1 above shall apply.
6.3 DISABILITY. If the Employee's employment with the Company
is terminated because of a permanent and total disability, the Employee or the
Employee's estate may, within twelve (12) months following the date of such
termination, exercise the Option to the extent it was exercisable by the
Employee on the date of such termination unless the Employee dies prior to the
expiration of such period, in which event the Employee shall be treated as
though his or her death occurred on the date of termination due to such
disability and the provisions of Section 6.1 shall apply. The Employee hereby
acknowledges that the favorable tax treatment provided under Section 421 of the
Internal Revenue Code may be inapplicable in the event the Option is not
exercised within three (3) months after the date of the Employee's termination
due to a partial, temporary or other disability not meeting the requirements of
Internal Revenue Code Section 22(e)(3).
6.4 TERMINATION FOR CAUSE. If the Employee's employment is
terminated for cause, the option granted by this Agreement shall expire on
Employee's termination date or at such later time and on such conditions as
determined by the Board. For purposes of this paragraph, "cause" shall be
defined as the willful breach or habitual neglect of the duties which Employee
is required to perform under Employee's employment agreement with Company, or
any act of dishonesty, fraud, misrepresentation or other acts of moral turpitude
as would prevent the effective performance of Employee's duties.
6.5 OTHER TERMINATION. If the Employee's employment with the
Company is terminated for any reason other than provided in Sections 6.1, 6.2,
6.3 and 6.4 above, the Employee or the Employee's estate may, within three (3)
months after the date of the Employee's termination exercise the Option to the
extent it was exercisable by the Employee on the date of such termination.
6.6 TRANSFER TO RELATED CORPORATION. In the event the Employee
leaves the employ of the Company to become an employee of any Parent or
Subsidiary corporation of the Company (as defined in Section 3.2 above) or if
the Employee leaves the employ of any Parent or Subsidiary corporation to become
an employee of the Company or of another such Parent or Subsidiary corporation
of the Company, the Employee shall be deemed to continue in the employ of the
Company for all purposes of this Agreement.
6.7 EXTENSION IF EXERCISE PREVENTED BY LAW. Notwithstanding
the foregoing, if the exercise of an Option within the applicable time periods
set forth above is prevented because the issuance of shares upon such exercise
would constitute a violation of any applicable federal, state or foreign
securities law or other law or regulation, the Option shall remain exercisable
until three (3) months after the date the Employee is notified by the Company
that the Option is exercisable, but in any event no later than the expiration of
ten (10) years from the Date of Grant. The Company makes no representation as to
the tax consequences of any such delayed exercise. The Employee should consult
with the Employee's own tax advisor as to the tax consequences to the Employee
of any such delayed exercise.
6.8 EXTENSION IF EMPLOYEE IS SUBJECT TO SECTION 16(B).
Notwithstanding the foregoing, if a sale within the applicable time periods set
forth in Section 6 of shares acquired upon the exercise of the Option would
subject the Employee to liability under Section 16(b) of the Securities Exchange
Act of 1934, as amended, the Option shall remain exercisable until the earliest
to occur of (i) the tenth (10th) day following the
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 7
date on which a sale of such shares by the Employee would no longer be subject
to such liability, (ii) the one hundred and ninetieth (190th) day after the
Employee's termination of Employee's employment, or (iii) the Option Expiration
Date.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
7.1 STOCK SPLITS AND SIMILAR EVENTS; RECLASSIFICATIONS. The
number of shares of Common Stock covered by the Option and the exercise price
thereof shall be proportionately adjusted for any increase or decrease in the
number of issued and outstanding shares of Common Stock resulting from a
subdivision or combination of such shares or the payment of a stock dividend
(but only on the Common Stock) or a recapitalization or any other increase or
decrease in the number of such outstanding shares of Common Stock effected
without the receipt of consideration by the Company; provided, however, that the
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." In the event that the
shares of Common Stock covered by this Option are reclassified by the Company,
other than pursuant to a transaction described in Section 7.2, then this Option
shall apply to the appropriate number of shares of newly classified Common Stock
designated by the Board.
7.2 MERGERS AND ACQUISITIONS. Subject to any required action
by the Company's Board and stockholders, if the Company shall be the surviving
corporation in any merger or consolidation which results in the holders of the
outstanding voting securities of the Company (determined immediately prior to
such merger or consolidation) owning, directly or indirectly, at least a
majority of the beneficial interest in the outstanding voting securities of the
surviving corporation or its Parent corporation (determined immediately after
such merger or consolidation), the Option shall pertain and apply to the
securities or other property to which a holder of the number of shares subject
to the unexercised portion of this Option would have been entitled. Any of (i) a
dissolution or liquidation of the Company; (ii) a sale of all or substantially
all of the Company's business and assets; or (iii) a merger or consolidation in
which the Company is not the surviving corporation or a constituent corporation)
which results in the holders of the outstanding voting securities of the Company
(determined immediately prior to such merger or consolidation) owning, directly
or indirectly, less than a majority of the beneficial interest in the
outstanding voting securities of the surviving corporation or its Parent
corporation (determined immediately after such merger or consolidation) will
cause the Option to terminate, unless (a) the agreement of such sale, merger,
consolidation or other transaction otherwise provides or (b) a sale on the day
preceding the scheduled consummation of such event (the "test date") of shares
acquired upon the exercise of the option would subject the Employee to liability
under Section 16(b) of the Securities Exchange Act of 1934, as amended, in which
event the Option shall remain exercisable until the earliest to occur of (i) the
tenth (10th) day following the date on which a sale of such shares by the
Employee would no longer be subject to such liability, (ii) the one hundred and
ninetieth (190th) day after the test date, or (iii) the Option Expiration Date.
7.3 BOARD'S DETERMINATION FINAL AND BINDING UPON EMPLOYEE. To
the extent that the foregoing adjustments in this Section 7 relate to stock or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. The
Company agrees to give notice of any such adjustment to the Employee; provided,
however, that any such adjustment shall be effective and binding for all
purposes hereof whether or not such notice is given or received.
7.4 NO RIGHTS EXCEPT AS EXPRESSLY STATED. Except as
hereinabove expressly provided in this Section 7, no additional rights shall
accrue to the Employee by reason of any subdivision or combination of shares of
the capital stock of any class or the payment of any stock dividend or any other
increase or
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 8
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or of stock of
another corporation, and any issue by the Company of shares of stock of any
class or of securities convertible into shares of stock of any class shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number or exercise price of shares subject to the Option. Neither the Employee
nor any person claiming under or through the Employee shall be, or have any of
the rights or privileges of, a stockholder of the Company in respect of any of
the shares issuable upon the exercise of this Option, unless and until this
Option is properly and lawfully exercised and a certificate representing the
shares so purchased is duly issued and delivered to the Employee or to his or
her estate.
7.5 NO LIMITATIONS ON COMPANY'S DISCRETION. The grant of the
Option hereby shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
8. MANNER OF EXERCISE.
8.1 GENERAL INSTRUCTIONS FOR EXERCISE. The Option shall be
exercised by the Employee by completing, executing and delivering to the Company
the Notice of Exercise and Investment Representation Statement ("NOTICE OF
EXERCISE"), in substantially the form attached hereto as Exhibit A, which Notice
of Exercise shall specify the number of shares of Common Stock which the
Employee elects to purchase. The Company's obligation to deliver shares upon the
exercise of this Option shall be subject to the Employee's satisfaction of all
applicable federal, state, local and foreign income and employment tax
withholding requirements, if any. Upon receipt of such Notice of Exercise and of
payment of the purchase price (and payment of applicable taxes as provided
above), the Company shall, as soon as reasonably possible and subject to all
other provisions hereof, deliver certificates for the shares of Common Stock so
purchased, registered in the Employee's name or in the name of his or her legal
representative (if applicable). Payment of the purchase price upon any exercise
of the Option shall be made by check acceptable to the Company or in cash;
provided, however, that the Board may, in its sole and absolute discretion,
accept any other legal consideration to the extent permitted under applicable
laws and the Plan.
8.2 EXERCISE PROCEDURE AFTER DEATH. To the extent exercisable
after the Employee's death, this Option shall be exercised only by the
Employee's executor(s) or administrator(s) or the person or persons duly
authorized or to whom this Option is transferred under the Employee's will or,
if the Employee shall fail to make testamentary disposition of this Option,
under the applicable laws of descent and distribution. Any such transferee
exercising this Option must furnish the Company with (1) written Notice of
Exercise and relevant information as to his or her status, (2) evidence
satisfactory to the Company to establish the validity of the transfer of this
Option and compliance with any laws or regulations pertaining to said transfer,
and (3) written acceptance of the terms and conditions of this Option as
contained in this Agreement.
9. NON-TRANSFERABLE. The Option shall, during the lifetime of the
Employee, be exercisable only by the Employee and shall not be transferable or
assignable by the Employee in whole or in part other than by will or the laws of
descent and distribution. If the Employee shall make any such purported transfer
or assignment of the Option, such assignment shall be null and void and of no
force or effect whatsoever.
10. COMPLIANCE WITH SECURITIES AND OTHER LAWS. The Option may not be
exercised and the Company shall not be obligated to deliver any certificates
evidencing shares of Common Stock hereunder if the issuance of shares upon such
exercise would constitute a violation of any applicable requirements of: (i) the
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 9
Securities Act, (ii) the Securities Exchange Act of 1934, as amended, (iii)
applicable state securities laws, (iv) any applicable listing requirement of any
stock exchange on which the Company's Common Stock is then listed, and (v) any
other law or regulation applicable to the issuance of such shares. Nothing
herein shall be construed to require the Company to register or qualify any
securities under applicable federal and state securities laws, or take any
action to secure an exemption from such registration and qualification for the
issuance of any securities upon the exercise of this Option. Shares of Common
Stock issued upon exercise of this Option shall include the following legends
and such other legends as in the opinion of the Company's counsel may be
required by applicable federal, state and foreign securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER AGREEMENTS CONTAINED IN A STOCK
OPTION AGREEMENT DATED FEBRUARY 11, 1999, A COPY OF WHICH IS ON FILE
WITH THE COMPANY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE
SALE IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701 UNDER THE ACT, OR
THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
11. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing contained in this
Agreement shall: (i) confer upon the Employee any right with respect to the
continuance of his or her employment agreement with the Company, or with any
Parent or Subsidiary corporation of the Company, or (ii) limit in any way the
right of the Company, or of any Parent or Subsidiary corporation, to terminate
the employment of the Employee at any time. Except to the extent the Company and
the Employee shall have otherwise agreed in writing, the Employee's employment
shall be terminable by the Company (or by a Parent or Subsidiary, if applicable)
at will. Subject to Section 12, the Board in its sole discretion shall determine
whether any leave of absence or interruption in employment (including an
interruption during military service) shall be deemed a termination of
employment for the purposes of this Agreement.
12. LEAVE OF ABSENCE. For purposes hereof, the Employee's employment
shall not be deemed to terminate if the Employee takes any military leave, sick
leave, or other bona fide leave of absence approved by the Company of ninety
(90) days or less. In the event of a leave in excess of ninety (90) days, the
Employee's employment shall be deemed to terminate on the ninety-first (91st)
day of the leave unless the Employee's right to reemployment remains guaranteed
by statute or contract. Notwithstanding the foregoing, however, a leave of
absence shall be treated as employment for purposes of Section 3 if and only if
the leave of absence is designated by the Company as (or required by law to be)
a leave for which vesting credit is given.
13. COMMITTEE OF THE BOARD. In the event that the Plan is administered
by a committee of the Board (the "COMMITTEE"), all references herein to the
Board shall be construed to mean the Committee for the period(s) during which
the Committee administers the Plan.
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 10
14. OPTION SUBJECT TO TERMS OF PLAN. In addition to the provisions
hereof, this Agreement and the Option are governed by, and subject to the terms
and conditions of, the Plan. The Employee acknowledges receipt of a copy of the
Plan (a copy of which is attached hereto as Exhibit B). The Employee represents
that he or she is familiar with the terms and conditions of the Plan, and hereby
accepts the Option subject to all of the terms and conditions thereof, which
terms and conditions shall control to the extent inconsistent in any respect
with the provisions of this Agreement. The Employee hereby agrees to accept as
binding, conclusive and final all decisions and interpretations of the Board as
to any questions arising under the Plan or under this Agreement.
15. NOTICES. All notices and other communications of any kind which
either party to this Agreement may be required or may desire to serve on the
other party hereto in connection with this Agreement shall be in writing and may
be delivered by personal service or by registered or certified mail, return
receipt requested, deposited in the United States mail with postage thereon
fully prepaid, addressed to the other party at the addresses indicated on the
signature page hereof or as otherwise provided below. Service of any such notice
or other communication so made by mail shall be deemed complete on the date of
actual delivery as shown by the addressee's registry or certification receipt or
at the expiration of the third (3rd) business day after the date of mailing,
whichever is earlier in time. Either party may from time to time, by notice in
writing served upon the other as aforesaid, designate a different mailing
address or a different person to which such notices or other communications are
thereafter to be addressed or delivered.
16. FURTHER ASSURANCES. The Employee shall, upon request of the
Company, take all actions and execute all documents requested by the Company
which the Company deems to be reasonably necessary to effectuate the terms and
intent of this Agreement and, when required by any provision of this Agreement
to transfer all or any portion of the Common Stock purchased hereunder to the
Company (and/or its assignees), the Employee shall deliver such Common Stock
endorsed in blank or accompanied by Stock Assignments Separate from Certificate
endorsed in blank, so that title thereto will pass by delivery alone. Any sale
or transfer by the Employee of the Common Stock to the Company (and/or its
assignees) shall be made free of any and all claims, encumbrances, liens and
restrictions of every kind, other than those imposed by this Agreement.
17. NOTICE OF SALES UPON DISQUALIFYING DISPOSITION. The Employee shall
dispose of the shares acquired pursuant to the Option only in accordance with
the provisions of this Agreement. In addition, the Employee shall promptly
notify the Chief Financial Officer of the Company if the Employee disposes of
any of the shares acquired pursuant to the Option within one (1) year from the
date the Employee exercises all or part of the Option or within two (2) years of
the Date of Grant of this Option. Until such time as the Employee disposes of
such shares in a manner consistent with the provisions of this Agreement, the
Employee shall hold all shares acquired pursuant to the Option in the Employee's
name (and not in the name of any nominee) for the one (1) year period
immediately after exercise of the Option and the two (2) year period immediately
after the Date of Grant of this Option. At any time during the one (1) year or
two (2) year periods set forth above, the Company may place a legend or legends
on any certificate or certificates representing shares accurate pursuant to the
Option requesting the transfer agent for the Company's stock to notify the
Company of any such transfers. The obligation of the Employee to notify the
Company of any such transfer shall continue notwithstanding that a legend has
been placed on the certificate or certificates pursuant to the preceding
sentence.
SmartDisk Corporation
Employee Incentive Stock Option Agreement
Page 11
18. SUCCESSORS. Except to the extent the same is specifically limited
by the terms and provisions of this Agreement, this Agreement is binding upon
the Employee and the Employee's successors, heirs and personal representatives,
and upon the Company, its successors and assigns.
19. TERMINATION OR AMENDMENT. Subject to the terms and conditions of
the Plan, the Board may terminate or amend the Plan and/or the Option at any
time; provided, however, that no such termination or amendment may adversely
affect the Option or any unexercised portion hereof without the consent of the
Employee.
20. INTEGRATED AGREEMENT. This Agreement and the Plan constitute the
entire understanding and agreement of the Employee and the Company with respect
to the subject matter contained herein, and there are no agreements,
understandings, restrictions, representations, or warranties between the
Employee and the Company other than those set forth or provided for herein. To
the extent contemplated herein, the provisions of this Agreement shall survive
any exercise of the Option and shall remain in full force and effect.
21. OTHER MISCELLANEOUS TERMS. Titles and captions contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, irrespective of
its choice of law principles.
22. INDEPENDENT TAX ADVICE. The Employee agrees that he or she has
obtained or will obtain the advice of independent tax counsel (or has determined
not to obtain such advice, having had adequate opportunity to do so) regarding
the federal and state income tax consequences of the receipt and exercise of the
Option and of the disposition of Common Stock acquired upon exercise hereof. The
Employee acknowledges that he or she has not relied and will not rely upon any
advice or representation by the Company or by its employees or representatives
with respect to the tax treatment of the Option.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove written.
COMPANY: EMPLOYEE:
SMARTDISK CORPORATION,
a Delaware corporation
By:---------------------------- ----------------------------
Xxxxxxx Xxxxxxxxx, (Signature)
Secretary
Name Printed: Xxxxxxx X. Xxxxxxxxx
Address: Address:__________________________
0000 Xxxxxxxxxx Xxxxxx __________________________
Xxxxxx, XX 00000-0000 __________________________
SCHEDULE OF EXHIBITS
EXHIBIT A: Form of Notice of Exercise and Investment Representation
Statement for Employee Incentive Stock Option Agreement
EXHIBIT B: 1998 Employee Stock Option Plan
EXHIBIT A
SMARTDISK CORPORATION
FORM OF NOTICE OF EXERCISE
AND INVESTMENT REPRESENTATION STATEMENT FOR
EMPLOYEE INCENTIVE STOCK OPTION AGREEMENT
SmartDisk Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Corporate Secretary
Re: NOTICE OF EXERCISE OF STOCK OPTION
Ladies and Gentlemen:
I hereby exercise, as of _________________, ____, my stock option
(granted February 11, 1999) to purchase ( ) shares (the "OPTION SHARES") of the
Common Stock of SmartDisk Corporation, a Delaware corporation (the "COMPANY").
Payment of the option price of $________________ is attached to this notice.
As a condition to this notice of exercise, I hereby make the following
representations and agreements:
INVESTMENT REPRESENTATION STATEMENT.
1. I am purchasing the Option Shares for investment for my own account
only and not with a view to, or for resale in connection with, any
"distribution" thereof. I am aware of the Company's business affairs and
financial condition and have had access to such information about the Company as
I have deemed necessary or desirable to reach an informed and knowledgeable
decision to acquire the Option Shares.
2. I understand that the Option Shares have not been registered under
the Securities Act of 1933, as amended (the "ACT"), or qualified or registered
under the blue sky law of any state (the "LAW"), by reason of specific
exemptions therefrom, which exemptions depend upon, among other things, the bona
fide nature of my investment intent as expressed herein. In this connection, I
understand that, in the view of the Securities and Exchange Commission (the
"COMMISSION"), the statutory basis for one such exemption may not exist if my
representation means that my present intention is to hold the Option Shares for
a minimum capital gains period under the tax laws, for a deferred sale, for a
market rise, for a sale if the market does not rise, or for a year or any other
fixed period in the future.
3. I acknowledge and agree that the Option Shares are restricted
securities which must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration
Employee Incentive Stock Option Agreement
Exhibit A
Page 2
is available. I further acknowledge and understand that the Company is under no
obligation to register the Option Shares.
4. I am aware of the adoption of Rule 144 by the Commission, which
permits limited public resale of securities acquired in a non-public offering,
subject to the satisfaction of certain conditions, including, among other
things, the availability of certain current public information about the issuer,
the passage of not less than one (1) year after the holder has purchased and
paid for the securities to be sold, effectuation of the sale on the public
market through a broker in an unsolicited "brokers' transaction" or to a "market
maker," and compliance with specified limitations on the amount of securities to
be sold (generally, one percent (1%) of the total amount of common stock
outstanding) during any three (3)-month period, except that such conditions need
not be met by a person who is not an affiliate of the Company at the time of
sale and has not been an affiliate for the preceding three (3) months if the
securities to be sold have been beneficially owned by such person for at least
two (2) years prior to their sale.
5. I understand that the Company currently does not, and at the time I
wish to sell the Option Shares may not, satisfy the current public information
requirement of Rule 144 and, consequently, I may be precluded from selling the
Option Shares under Rule 144 even if the one (1)-year minimum holding period has
been satisfied.
6. I further understand that if all of the requirements of Rule 144 are
not met, compliance with Regulation A or some other exemption from registration
will be required; and that, although Rule 144 is not exclusive, the Staff of the
Commission has expressed its opinion that persons proposing to sell restricted
securities other than in a registered offering and other than pursuant to Rule
144 will have a substantial burden of proof in establishing that an exemption
from registration is available for such offers or sales and that such persons
and the brokers who participate in such transactions do so at their own risk.
7. I further understand that the certificate(s) representing the Option
Shares, whether upon initial issuance or any transfer thereof, shall bear on
their face legends, prominently stamped or printed thereon in capital letters,
reading as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER AGREEMENTS CONTAINED IN A STOCK
OPTION AGREEMENT DATED FEBRUARY 11, 1999, A COPY OF WHICH IS ON FILE
WITH THE COMPANY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE
SALE IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701 UNDER THE ACT, OR
THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES
Employee Incentive Stock Option Agreement
Exhibit A
Page 3
REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
8. I further understand in order to obtain the benefits of incentive
stock option treatment under Section 421 of the Internal Revenue Code, no sale
or other disposition may be made of any Option shares for at least one (1) year
after the date of the issuance of such Option Shares upon exercise hereunder and
for at least two (2) years after the Date of Grant of the Option. I shall
promptly notify the Company in writing in the event that I sell or otherwise
dispose of any Option Shares before the expiration of such periods. I further
understand that I may suffer adverse tax consequences as a result of my purchase
or disposition of the Option Shares. I represent that I have consulted with any
tax consultant(s) I deem advisable in connection with the purchase or
disposition of the Option Shares and that I am not relying on the Company for
any tax advice.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Exercise as of the date set forth below.
Signed:_______________________________
Dated:________________________________
EXHIBIT B
SMARTDISK CORPORATION
1998 EMPLOYEE STOCK OPTION PLAN
As Adopted January 27, 1998
[Refer to Exhibit 10.1 to SmartDisk Corporation's Registration Statement on Form
S-1 (file # 333-82793) for the text of the 1998 Employee Stock Option Plan]
EXHIBIT B-2
THE SECURITY REPRESENTED BY THIS AGREEMENT HAS BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SMARTDISK CORPORATION
EMPLOYEE NON-STATUTORY STOCK OPTION AGREEMENT
(CHANGE OF CONTROL PROVISIONS)
THIS EMPLOYEE NON-STATUTORY STOCK OPTION AGREEMENT ("AGREEMENT") by and
between SmartDisk Corporation, a Delaware corporation (the "COMPANY"), and
XXXXXXX X. XXXXXXXXX (the "EMPLOYEE") is made as of the 11th day of February,
1999 (such date being sometimes referred to herein as the "DATE OF GRANT").
R E C I T A L S
A. The Company has adopted and implemented its 1998 Employee Stock
Option Plan (the "PLAN") permitting the grant of stock options to employees,
consultants and other independent contractors of the Company and its
subsidiaries (as defined in the Plan), some of which are intended to be
non-statutory stock options in that they do not qualify as incentive stock
options within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "INTERNAL REVENUE CODE"), to purchase shares of the authorized
but unissued Common Stock or treasury shares of the Company ("COMMON STOCK").
B. The Board of Directors (or a duly authorized Committee thereof) of
the Company (in either case, referred to herein as the "BOARD") has authorized
the granting of a non-statutory stock option to the Employee, thereby allowing
the Employee to acquire an ownership interest (or increase his or her ownership
interest) in the Company.
A G R E E M E N T
NOW, THEREFORE, in reliance on the foregoing Recitals and in
consideration of the mutual covenants hereinafter set forth, the parties hereby
agree as follows:
1. GRANT OF STOCK OPTION. The Company hereby grants to the Employee a
non-transferable and non-assignable (except as provided herein) option to
purchase an aggregate of up to SEVENTY EIGHT THOUSAND ONE HUNDRED FORTY TWO
(78,142) shares of the Company's Common Stock, par value $0.001, at the exercise
price of ONE DOLLAR AND TWENTY CENTS ($1.20) per share, upon the terms and
conditions set forth herein (such purchase right being sometimes referred to
herein as "THE OPTION" or "THIS OPTION").
2. TERM AND TYPE OF OPTION. Unless earlier terminated in accordance with
Sections 6 or 7.2 hereof, the Option and all rights of the Employee to purchase
Common Stock hereunder shall expire with respect to all of the shares then
subject to this Agreement at 5:00 p.m. Eastern time on FEBRUARY 11, 2009 (the
"OPTION EXPIRATION DATE"). This Option is a non-statutory stock option in that
it is not intended to qualify as an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code. Accordingly, the Employee understands
that under current law he or she will recognize ordinary income for federal
income tax purposes upon exercise of this Option in an amount equal to the
excess (if any) of the fair market value of the
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 2
shares of Common Stock so purchased over the exercise price paid for such
shares. Employee further understands that Employee must satisfy all applicable
federal, state, local and foreign income and employment tax withholding
requirements at the date of exercise.
3. EXERCISE SCHEDULE. Subject to the remaining provisions of this
Agreement, this Option shall be exercisable as follows:
3.1 EXERCISE DATES. Commencing upon the first anniversary of
February 11, 1999 (the "VESTING START DATE"), the Employee may exercise this
Option pursuant to the following schedule:
VEST DATE NO. OF SHARES
02/11/00 4,167
05/11/00 21,875
08/11/00 21,875
11/11/00 21,875
11/11/01 4,175
11/11/02 4,175
In no event shall the Option be exercisable for more shares than the number of
shares set forth in Section 1.
3.2 CUMULATIVE NATURE OF EXERCISE SCHEDULE. The exercise dates
specified above refer to the earliest dates on which the Option may be exercised
with respect to the stated number of shares of the Common Stock covered by this
Option and this Option may be exercised with respect to all or any part of any
such number of the total shares at any time on or after such dates (until the
expiration date specified in Section 2 above or any earlier termination of this
Option pursuant to Section 6 or 7.2 of this Agreement). Except as permitted in
Section 6, as a condition to exercise of this Option the Employee must be and
remain in the employ of the Company, or of any Parent or Subsidiary corporation
of the Company (as defined in Internal Revenue Code Sections 424(e) and (f)),
during the entire period commencing with the Date of Grant of this Option and
ending with the date of exercise of this Option. Except as otherwise expressly
provided in this Agreement, the Employee's employment shall be deemed to have
terminated upon an actual termination of employment and upon such Parent or
Subsidiary corporation of the Company ceasing to have such relationship with the
Company. Any references in this Agreement to the Employee's employment with the
Company shall be deemed to also refer to the Employee's employment with any
Parent or Subsidiary corporation of the Company, as applicable.
3.3 CHANGE OF CONTROL. In the event of a Change of Control (as
defined below), one hundred percent of the unvested Shares under this Option
shall immediately become vested Shares as of the consummation of such Change of
Control. The vesting that was permissible solely by reason of this Section shall
be conditioned upon the consummation of the Change in Control. A "Change of
Control" shall be deemed to have occurred in the event any of the following
occurs with respect to the Company:
3.3.1 the direct or indirect sale or exchange by the
stockholders of the Company of all or substantially all of the stock of the
Company where the stockholders of the Company before such sale or
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 3
exchange do not retain, directly or indirectly, at least a majority of the
beneficial interest in the voting stock of the Company after such sale or
exchange.
3.3.2 a merger or consolidation in which the Company is
not the surviving corporation, other than (i) a merger in which the stockholders
of the Company before such merger or consolidation retain directly or
indirectly, at least a majority of the voting stock of the surviving corporation
or the parent corporation of the surviving corporation and the Options are
assumed or substituted by the surviving corporation which assumption or
substitution shall be binding on Employee, or (ii) a merger or consolidation
with a wholly-owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
the stockholders of the Company and the Options are assumed or substituted by
the surviving, continuing, successor or parent corporation, which assumption or
substitution shall be binding on the Employee.
3.3.3 a merger or consolidation in which the Company is
the surviving corporation where the stockholders of the Company before such
merger or consolidation do not retain, directly or indirectly, at least a
majority of the voting stock of the Company after such merger or consolidation.
3.3.4 the sale, exchange, or transfer of all or
substantially all of the assets of the Company other than a sale, exchange, or
transfer to one (1) or more subsidiaries of the Company.
3.3.5 a liquidation or dissolution of the Company.
3.3.6 any other transaction which qualifies as a
"corporate transaction" under Section 424 of the Code wherein the stockholders
of the Company give up all of their equity interest in the Company (except for
the acquisition, sale or transfer of all or substantially all of the outstanding
shares of the Company).
3.4 OVERRIDING LIMITATION ON TIME FOR EXERCISE. Notwithstanding
any other provisions of this Agreement, the Option may not be exercised after
the expiration of ten (10) years from the date of grant.
4. RIGHT OF FIRST REFUSAL. The Employee and successors-in-interest to
Employee shall not sell, assign, pledge or in any manner transfer any of the
shares of the Common Stock purchased hereunder, or any right or interest
therein, whether voluntarily or by operation of law, or by gift or otherwise,
except for a transfer which meets the requirements hereinafter set forth.
4.1 NOTICE OF PROPOSED SALE. If the Employee desires to sell or
otherwise transfer any of his or her shares of Common Stock, the Employee shall
first give written notice thereof to the Company. The notice shall name the
proposed transferee and state the number of shares to be transferred, the
proposed consideration and all other material terms and conditions of the
proposed transfer.
4.2 OPTION OF COMPANY TO PURCHASE. For forty-five (45) days
following receipt of such notice, the Company (and its assignees as provided in
Section 4.3 below) shall have the option to elect to purchase all of the shares
specified in the notice at the price and upon the terms set forth in such
notice; provided that if the terms of payment set forth in the Employee's notice
were other than cash against delivery, the Company (and its assignees) shall pay
cash for said shares equal to the fair market value thereof as determined in
good faith by the Board, except that to the extent such consideration is
composed, in whole or in part, of promissory notes, the Company (and its
assignees) shall have the option of similarly issuing promissory
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 4
notes of like form, tenor and effect. Notwithstanding the foregoing, in the
event that the Employee disagrees with the determination of fair market value
made by the Board, the Employee shall have the right to have such fair market
value determined by arbitration in accordance with the rules of the American
Arbitration Association. The arbitration shall be held in the county in which
the Company has its executive offices. The cost of the arbitration shall be
borne in equal shares by the Company and the Employee. In the event the Company
(and its assignees) elects to purchase all of such shares, it shall give written
notice to the Employee of its election and settlement for such purchase of
shares shall be made as provided below in Section 4.4.
4.3 ASSIGNABILITY OF COMPANY'S RIGHTS HEREUNDER. The Company may
at any time transfer and assign its rights and delegate its obligations under
this Section 4 to any other person, corporation, firm or entity, including its
officers, directors or stockholders, with or without consideration.
4.4 CLOSING OF COMPANY PURCHASE. In the event the Company (and
its assignees) elects to acquire all of those shares of the Employee as
specified in the Employee's notice, the Secretary of the Company shall so notify
the Employee within forty-five (45) days after receipt of the Employee's notice,
and settlement thereof shall be made in cash or as otherwise set forth above
within forty-five (45) days after the date the Secretary of the Company gives
the Employee notice of the Company's election.
4.5 TRANSFERRED SHARES REMAIN SUBJECT TO RESTRICTIONS. In the
event the Company (or its assignees) do not elect to acquire all of the shares
specified in the Employee's notice, the Employee may, within the sixty (60) day
period following the expiration of the forty-five (45) day period for electing
to exercise the purchase rights granted to the Company (and its assignees) in
Section 4.2, transfer the shares in the manner specified in his or her notice.
In that event, the transferee, assignee or other recipient shall, as a condition
of the transfer of ownership, receive and hold such shares subject to the
provisions of Sections 4, 5, 10, 13-20 of this Agreement and shall execute such
documentation as may be requested by the Company, including, but not limited to,
an investment representation letter containing provisions similar to those set
forth in the Notice of Exercise and Investment Representation Statement attached
as EXHIBIT A hereto.
4.6 EXCEPTIONS TO FIRST REFUSAL RIGHTS. Anything to the contrary
contained herein notwithstanding, the following transactions shall be exempt
from the provisions of this Section 4 (provided that the transferee shall first
agree in writing, satisfactory to the Company, to be bound by the terms and
provisions of Sections 4, 5, 10 and 13-20 hereof):
4.6.1 TRANSFER TO FAMILY MEMBER. The Employee's transfer
of any or all shares held subject to this Agreement (either during the
Employee's lifetime or on death by will or intestacy) to such Employee's
Immediate family, as herein defined, or to any custodian or trustee for the
account of the Employee or his or her Immediate family. "Immediate family" as
used herein shall mean spouse, lineal descendants, father, mother, or brother or
sister of the Employee.
4.7 WAIVERS BY THE COMPANY. The provisions of this Section 4 may
be waived by the Company with respect to any transfer proposed by the Employee
only by duly authorized action of the Board.
4.8 UNAUTHORIZED TRANSFERS VOID. Any sale or transfer, or
purported sale or transfer, of the Common Stock subject to this Agreement shall
be null and void unless the terms, conditions and provisions of this Section 4
are strictly complied with.
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 5
4.9 TERMINATION OF FIRST REFUSAL RIGHT. The foregoing right
of first refusal shall terminate upon the earlier of:
4.9.1 PUBLIC OFFERING. The date equity securities of the
Company are first offered and sold to the public generally pursuant to a
registration statement filed with, and declared effective by, the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "SECURITIES ACT"); or
4.9.2 ACQUISITION OF THE COMPANY. Immediately prior to
the acquisition of substantially all of the business and assets of the Company
by an unaffiliated third party (as determined by the Board), whether by merger,
sale of outstanding stock or of the Company's assets, or otherwise, where no
express provision is made for the assignment and continuation of the Company's
rights hereunder by a new or successor corporation.
5. AGREEMENT TO LOCK-UP IN THE EVENT OF PUBLIC OFFERING. In the event of
a public offering of the Company's Common Stock pursuant to a registration
statement declared effective with the SEC, if requested by the Company or by its
underwriters, the Employee agrees not to sell, sell short, grant any option to
buy or otherwise dispose of the shares of Common Stock purchased pursuant to
this Agreement (except for any such shares which may be included in the
registration) for a period of up to one hundred eighty (180) days following the
consummation of such offering. The Company may impose stop-transfer instructions
with respect to the shares of the Common Stock subject to the foregoing
restriction until the end of said period. The Employee shall be subject to this
Section 5 provided and only if the executive officers and directors of the
Company are also subject to similar arrangements.
6. RIGHTS ON TERMINATION OF EMPLOYMENT. Upon the Employee's termination
of employment with the Company (and with any Parent or Subsidiary corporation of
the Company as defined in Section 3.3 above), the Employee's right to exercise
this Option shall be limited in the manner set forth in this Section 6 (and this
Option shall terminate in the event not so exercised), and subject to the
limitation provided in Section 3.4.
6.1 DEATH. If the Employee's employment with the Company is
terminated by death, the Employee's estate may, for a period of twelve (12)
months following the date of such termination, exercise the Option to the extent
it was exercisable by the Employee on the date of such termination. The
Employee's estate shall mean the Employee's legal representative upon death or
any person who acquires the right to exercise the Option by reason of such death
in accordance with Section 8.2.
6.2 RETIREMENT. If the Employee's employment with the Company is
terminated by voluntary retirement at or after reaching sixty-five (65) years of
age, the Employee may, within three (3) months following such termination,
exercise the Option to the extent it was exercisable by the Employee on the date
of such termination unless the Employee dies prior thereto, in which event the
Employee shall be treated as though the Employee had died on the date of
retirement and the provisions of Section 6.1 above shall apply.
6.3 DISABILITY. If the Employee's employment with the Company is
terminated because of a disability, the Employee may, within twelve (12) months
following the date of such termination, exercise the Option to the extent it was
exercisable by the Employee on the date of such termination unless the Employee
dies prior to the expiration of such period, in which event the Employee shall
be treated as though his or her death occurred on the date of termination due to
such disability and the provisions of Section 6.1 shall apply.
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 6
6.4 TERMINATION FOR CAUSE. If the Employee's employment is
terminated for cause, the option granted by this Agreement shall expire on
Employee's termination date or at such later time and on such conditions as
determined by the Board. For purposes of this paragraph, "cause" shall be
defined as the willful breach or habitual neglect of the duties which Employee
is required to perform under his employment agreement with Company, or any act
of dishonesty, fraud, misrepresentation or other acts of moral turpitude as
would prevent the effective performance of Employee's duties.
6.5 OTHER TERMINATION. If the Employee's employment with the
Company is terminated for any reason other than provided in Sections 6.1, 6.2,
6.3 and 6.4 above, the Employee or the Employee's estate may, within three (3)
months after the date of the Employee's termination exercise the Option to the
extent it was exercisable by the Employee on the date of such termination.
6.6 TRANSFER TO RELATED CORPORATION. In the event the Employee
leaves the employ of the Company to become an employee of any Parent or
Subsidiary corporation of the Company (as defined in Section 3.3 above) or if
the Employee leaves the employ of any such Parent or Subsidiary corporation to
become an employee of the Company or of another such Parent or Subsidiary
corporation of the Company, the Employee shall be deemed to continue in the
employ of the Company for all purposes of this Agreement.
6.7 EXTENSION IF EXERCISE PREVENTED BY LAW. Notwithstanding the
foregoing, if the exercise of an Option within the applicable time periods set
forth above is prevented because the issuance of shares upon such exercise would
constitute a violation of any applicable federal, state or foreign securities
law or other law or regulation, the Option shall remain exercisable until three
(3) months after the date the Employee is notified by the Company that the
Option is exercisable, but in any event no later than the expiration of ten (10)
years from the date of grant. The Company makes no representation as to the tax
consequences of any such delayed exercise. The Employee should consult with the
Employee's own tax advisor as to the tax consequences to the Employee of any
such delayed exercise.
6.8 EXTENSION IF EMPLOYEE IS SUBJECT TO SECTION 16(B).
Notwithstanding the foregoing, if a sale within the applicable time periods set
forth in Section 6 of shares acquired upon the exercise of the Option would
subject the Employee to liability under Section 16(b) of the Securities Exchange
Act of 1934, as amended, the Option shall remain exercisable until the earliest
to occur of (i) the tenth (10th) day following the date on which a sale of such
shares by the Employee would no longer be subject to such liability, (ii) the
one hundred and ninetieth (190th) day after the Employee's termination of
Employee's employment, or (iii) the Option Expiration Date.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
7.1 STOCK SPLITS AND SIMILAR EVENTS; RECLASSIFICATIONS. The
number of shares of Common Stock covered by the Option and the exercise price
thereof shall be proportionately adjusted for any increase or decrease in the
number of issued and outstanding shares of Common Stock resulting from a
subdivision or combination of such shares or the payment of a stock dividend
(but only on the Common Stock) or a recapitalization or any other increase or
decrease in the number of such outstanding shares of Common Stock effected
without the receipt of consideration by the Company; provided, however, that the
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 7
consideration." In the event that the shares of Common Stock covered by this
Option are reclassified by the Company, other than pursuant to a transaction
described in Section 7.2, then this Option shall apply to the appropriate number
of shares of newly classified Common Stock designated by the Board.
7.2 MERGERS AND ACQUISITIONS. If the Company shall be a
constituent corporation in any merger or consolidation which results in the
holders of the outstanding voting securities of the Company (determined
immediately prior to such merger or consolidation) owning, directly or
indirectly, at least a majority of the beneficial interest in the outstanding
voting securities of the surviving corporation or its Parent corporation
(determined immediately after such merger or consolidation), the Option shall
pertain and apply to the securities or other property to which a holder of the
number of shares subject to the unexercised portion of this Option would have
been entitled. Any of (i) a dissolution or liquidation of the Company; (ii) a
sale of substantially all of the Company's business and assets; or (iii) a
merger or consolidation (in which the Company is a constituent corporation)
which results in the holders of the outstanding voting securities of the Company
(determined immediately prior to such merger or consolidation) owning, directly
or indirectly, less than a majority of the beneficial interest in the
outstanding voting securities of the surviving corporation or its Parent
corporation (determined immediately after such merger or consolidation) will
cause the Option to terminate, unless (a) the agreement of such sale, merger,
consolidation or other transaction otherwise provides or (b) a sale on the day
preceding the scheduled consummation of such event (the "test date") of shares
acquired upon the exercise of the option would subject the Employee to liability
under Section 16(b) of the Securities Exchange Act of 1934, as amended, in which
event the option shall remain exercisable until the earliest to occur of (i) the
tenth (10th) day following the date on which a sale of such shares by the
Employee would no longer be subject to such liability, (ii) the one hundred and
ninetieth (190th) day after the test date, or (iii) the Option Expiration Date.
7.3 BOARD'S DETERMINATION FINAL AND BINDING UPON EMPLOYEE. To the
extent that the foregoing adjustments in this Section 7 relate to stock or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. The
Company agrees to give notice of any such adjustment to the Employee; provided,
however, that any such adjustment shall be effective and binding for all
purposes hereof whether or not such notice is given or received.
7.4 NO RIGHTS EXCEPT AS EXPRESSLY STATED. Except as hereinabove
expressly provided in this Section 7, no additional rights shall accrue to the
Employee by reason of any subdivision or combination of shares of the capital
stock of any class or the payment of any stock dividend or a recapitalization or
any other increase or decrease in the number of shares of any class or by reason
of any dissolution, liquidation, merger or consolidation or spin-off of assets
or of stock of another corporation, and any issue by the Company of shares of
stock of any class or of securities convertible into shares of stock of any
class shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or exercise price of shares subject to the Option.
Neither the Employee nor any person claiming under or through the Employee shall
be, or have any of the rights or privileges of, a stockholder of the Company in
respect of any of the shares issuable upon the exercise of this Option, unless
and until this Option is properly and lawfully exercised and a certificate
representing the shares so purchased is duly issued and delivered to the
Employee or to his or her estate.
7.5 NO LIMITATIONS ON COMPANY'S DISCRETION. The grant of the
Option hereby shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 8
8. MANNER OF EXERCISE.
8.1 GENERAL INSTRUCTIONS FOR EXERCISE. The Option shall be
exercised by the Employee by completing, executing and delivering to the Company
the Notice of Exercise and Investment Representation Statement ("NOTICE OF
EXERCISE"), in substantially the form attached hereto as Exhibit A, which Notice
of Exercise shall specify the number of shares of Common Stock which the
Employee elects to purchase. The Company's obligation to deliver shares upon the
exercise of this Option shall be subject to the Employee's satisfaction of all
applicable federal, state, local and foreign income and employment tax
withholding requirements, if any. Upon receipt of such Notice of Exercise and of
payment of the purchase price (and payment of applicable taxes as provided
above), the Company shall, as soon as reasonably possible and subject to all
other provisions hereof, deliver certificates for the shares of Common Stock so
purchased, registered in the Employee's name or in the name of his or her legal
representative (if applicable). Payment of the purchase price upon any exercise
of the Option shall be made by check acceptable to the Company or in cash;
provided, however, that the Board may, in its sole and absolute discretion,
accept any other legal consideration to the extent permitted under applicable
laws and the Plan.
8.2 EXERCISE PROCEDURE AFTER DEATH. To the extent exercisable
after the Employee's death, this Option shall be exercised only by the
Employee's executor(s) or administrator(s) or the person or persons duly
authorized or to whom this Option is transferred under the Employee's will or,
if the Employee shall fail to make testamentary disposition of this Option,
under the applicable laws of descent and distribution. Any such transferee
exercising this Option must furnish the Company with (1) written Notice of
Exercise and relevant information as to his or her status, (2) evidence
satisfactory to the Company to establish the validity of the transfer of this
Option and compliance with any laws or regulations pertaining to said transfer,
and (3) written acceptance of the terms and conditions of this Option as
contained in this Agreement.
9. NON-TRANSFERABLE. The Option shall, during the lifetime of the
Employee, be exercisable only by the Employee and shall not be transferable or
assignable by the Employee in whole or in part other than by will or the laws of
descent and distribution. If the Employee shall make any such purported transfer
or assignment of the Option, such assignment shall be null and void and of no
force or effect whatsoever.
10. COMPLIANCE WITH SECURITIES AND OTHER LAWS. The Option may not be
exercised and the Company shall not be obligated to deliver any certificates
evidencing shares of Common Stock hereunder if the issuance of shares upon such
exercise would constitute a violation of any applicable requirements of: (i) the
Securities Act, (ii) the Securities Exchange Act of 1934, as amended, (iii)
applicable state securities laws, (iv) any applicable listing requirement of any
stock exchange on which the Company's Common Stock is then listed, and (v) any
other law or regulation applicable to the issuance of such shares. Nothing
herein shall be construed to require the Company to register or qualify any
securities under applicable federal and state securities laws, or take any
action to secure an exemption from such registration and qualification for the
issuance of any securities upon the exercise of this Option. Shares of Common
Stock issued upon exercise of this Option shall include the following legends
and such other legends as in the opinion of the Company's counsel may be
required by applicable federal, state and foreign securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER AGREEMENTS CONTAINED IN A STOCK
OPTION AGREEMENT, DATED FEBRUARY 11, 1999, A COPY OF WHICH IS ON FILE
WITH THE COMPANY.
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 9
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE
IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701 UNDER THE ACT, OR THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
11. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing contained in this
Agreement shall: (i) confer upon the Employee any right with respect to the
continuance of his or her employment agreement with the Company, or with any
Parent or Subsidiary corporation of the Company, or (ii) limit in any way the
right of the Company, or of any Parent or Subsidiary corporation, to terminate
the employment of the Employee at any time. Except to the extent the Company and
the Employee shall have otherwise agreed in writing, the Employee's employment
shall be terminable by the Company (or by a Parent or Subsidiary, if applicable)
at will. Subject to Section 12, the Board in its sole discretion shall determine
whether any leave of absence or interruption in employment (including an
interruption during military service) shall be deemed a termination of
employment for the purposes of this Agreement.
12. LEAVE OF ABSENCE. For purposes hereof, the Employee's employment
shall not be deemed to terminate if the Employee takes any military leave, sick
leave, or other bona fide leave of absence approved by the Company of ninety
(90) days or less. In the event of a leave in excess of ninety (90) days, the
Employee's employment shall be deemed to terminate on the ninety-first (91st)
day of the leave unless the Employee's right to reemployment remains guaranteed
by statute or contract. Notwithstanding the foregoing, however, a leave of
absence shall be treated as employment for purposes of Section 3 if and only if
the leave of absence is designated by the Company as (or required by law to be)
a leave for which vesting credit is given.
13. COMMITTEE OF THE BOARD. In the event that the Plan is administered
by a committee of the Board (the "COMMITTEE"), all references herein to the
Board shall be construed to mean the Committee for the period(s) during which
the Committee administers the Plan.
14. OPTION SUBJECT TO TERMS OF PLAN. In addition to the provisions
hereof, this Agreement and the Option are governed by, and subject to the terms
and conditions of, the Plan. The Employee acknowledges receipt of a copy of the
Plan (a copy of which is attached hereto as Exhibit B). The Employee represents
that he or she is familiar with the terms and conditions of the Plan, and hereby
accepts the Option subject to all of the terms and conditions thereof, which
terms and conditions shall control to the extent inconsistent in any respect
with the provisions of this Agreement. The Employee hereby agrees to accept as
binding, conclusive and final all decisions and interpretations of the Board as
to any questions arising under the Plan or under this Agreement.
15. NOTICES. All notices and other communications of any kind which
either party to this Agreement may be required or may desire to serve on the
other party hereto in connection with this Agreement shall be in writing and may
be delivered by personal service or by registered or certified mail, return
receipt requested, deposited in the United States mail with postage thereon
fully prepaid, addressed to the other party
Smartdisk Corporation
Employee Non-Statutory Stock Option Agreement
Page 10
at the addresses indicated on the signature page hereof or as otherwise provided
below. Service of any such notice or other communication so made by mail shall
be deemed complete on the date of actual delivery as shown by the addressee's
registry or certification receipt or at the expiration of the third (3rd)
business day after the date of mailing, whichever is earlier in time. Either
party may from time to time, by notice in writing served upon the other as
aforesaid, designate a different mailing address or a different person to which
such notices or other communications are thereafter to be addressed or
delivered.
16. FURTHER ASSURANCES. The Employee shall, upon request of the Company,
take all actions and execute all documents requested by the Company which the
Company deems to be reasonably necessary to effectuate the terms and intent of
this Agreement and, when required by any provision of this Agreement to transfer
all or any portion of the Common Stock purchased hereunder to the Company
(and/or its assignees), the Employee shall deliver such Common Stock endorsed in
blank or accompanied by Stock Assignments Separate from Certificate endorsed in
blank, so that title thereto will pass by delivery alone. Any sale or transfer
by the Employee of the Common Stock to the Company (and/or its assignees) shall
be made free of any and all claims, encumbrances, liens and restrictions of
every kind, other than those imposed by this Agreement.
17. SUCCESSORS. Except to the extent the same is specifically limited by
the terms and provisions of this Agreement, this Agreement is binding upon the
Employee and the Employee's successors, heirs and personal representatives, and
upon the Company, its successors and assigns.
18. TERMINATION OR AMENDMENT. Subject to the terms and conditions of the
Plan, the Board may terminate or amend the Plan and/or the Option at any time;
provided, however, that no such termination or amendment may adversely affect
the Option or any unexercised portion hereof without the consent of the
Employee.
19. INTEGRATED AGREEMENT. This Agreement and the Plan constitute the
entire understanding and agreement of the Employee and the Company with respect
to the subject matter contained herein, and there are no agreements,
understandings, restrictions, representations, or warranties between the
Employee and the Company other than those set forth or provided for herein. To
the extent contemplated herein, the provisions of this Agreement shall survive
any exercise of the Option and shall remain in full force and effect.
20. OTHER MISCELLANEOUS TERMS. Titles and captions contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, irrespective of
its choice of law principles.
21. INDEPENDENT TAX ADVICE. The Employee agrees that he or she has
obtained or will obtain the advice of independent tax counsel (or has determined
not to obtain such advice, having had adequate opportunity to do so) regarding
the federal and state income tax consequences of the receipt and exercise of the
Option and of the disposition of Common Stock acquired upon exercise hereof. The
Employee acknowledges that he or she has not relied and will not rely upon any
advice or representation by the Company or by its employees or representatives
with respect to the tax treatment of the Option.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove written.
COMPANY: EMPLOYEE:
SMARTDISK CORPORATION,
a Delaware corporation
----------------------------------
(Signature)
By:
--------------------------------------
Xxxxxxx Xxxxxxxxx, Name Printed: XXXXXXX X. XXXXXXXXX
Secretary ---------------------
Address:
--------------------------
--------------------------
--------------------------
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
SCHEDULE OF EXHIBITS
EXHIBIT A: Form of Notice of Exercise and Investment Representation
Statement for Employee Non-Statutory Stock Option Agreement
EXHIBIT B: 1998 Employee Stock Option Plan
EXHIBIT A
FORM OF NOTICE OF EXERCISE
AND INVESTMENT REPRESENTATION STATEMENT
FOR EMPLOYEE NON-STATUTORY STOCK OPTION AGREEMENT
SmartDisk Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Corporate Secretary
Re: NOTICE OF EXERCISE OF STOCK OPTION
-----------------------------------
Ladies and Gentlemen:
I hereby exercise, as of ____________________, ____, my stock option
(granted February 11, 1999) to purchase ______________ shares (the "OPTION
SHARES") of the Common Stock of SmartDisk Corporation, a Delaware corporation
(the "COMPANY"). Payment of the option price of $________________ is attached to
this notice.
As a condition to this notice of exercise, I hereby make the following
representations and agreements:
INVESTMENT REPRESENTATION STATEMENT.
1. I am purchasing the Option Shares for investment for my own account
only and not with a view to, or for resale in connection with, any
"distribution" thereof. I am aware of the Company's business affairs and
financial condition and have had access to such information about the Company as
I have deemed necessary or desirable to reach an informed and knowledgeable
decision to acquire the Option Shares.
2. I understand that the Option Shares have not been registered under
the Securities Act of 1933, as amended (the "ACT"), or qualified or registered
under the blue sky law of any state (the "LAW"), by reason of specific
exemptions therefrom, which exemptions depend upon, among other things, the bona
fide nature of my investment intent as expressed herein. In this connection, I
understand that, in the view of the Securities and Exchange Commission (the
"COMMISSION"), the statutory basis for one such exemption may not exist if my
representation means that my present intention is to hold the Option Shares for
a minimum capital gains period under the tax laws, for a deferred sale, for a
market rise, for a sale if the market does not rise, or for a year or any other
fixed period in the future.
3. I acknowledge and agree that the Option Shares are restricted
securities which must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available. I
further acknowledge and understand that the Company is under no obligation to
register the Option Shares.
4. I am aware of the adoption of Rule 144 by the Commission, which
permits limited public resale of securities acquired in a non-public offering,
subject to the satisfaction of certain conditions, including, among other
things, the availability of certain current public information about the issuer,
the passage of not less than one (1) year after the holder has purchased and
paid for the securities to be sold, effectuation of the sale on the public
market through a broker in an unsolicited "brokers' transaction" or to a "market
maker," and compliance with specified limitations on the amount of securities to
be sold (generally, one percent (1%) of the total amount of common stock
outstanding) during any three (3)-month period, except that such conditions need
Employee Non-Statutory Stock Option Agreement
Exhibit A
Page 2
not be met by a person who is not an affiliate of the Company at the time of
sale and has not been an affiliate for the preceding three (3) months if the
securities to be sold have been beneficially owned by such person for at least
two (2) years prior to their sale.
5. I understand that the Company currently does not, and at the time I
wish to sell the Option Shares may not, satisfy the current public information
requirement of Rule 144 and, consequently, I may be precluded from selling the
Option Shares under Rule 144 even if the one (1)-year minimum holding period has
been satisfied.
6. I further understand that if all of the requirements of Rule 144 are
not met, compliance with Regulation A or some other exemption from registration
will be required; and that, although Rule 144 is not exclusive, the Staff of the
Commission has expressed its opinion that persons proposing to sell restricted
securities other than in a registered offering and other than pursuant to Rule
144 will have a substantial burden of proof in establishing that an exemption
from registration is available for such offers or sales and that such persons
and the brokers who participate in such transactions do so at their own risk.
7. I further understand that the certificate(s) representing the Option
Shares, whether upon initial issuance or any transfer thereof, shall bear on
their face legends, prominently stamped or printed thereon in capital letters,
reading as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER AGREEMENTS CONTAINED IN A STOCK
OPTION AGREEMENT, DATED FEBRUARY 11, 1999, A COPY OF WHICH IS ON FILE
WITH THE COMPANY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE
IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701 UNDER THE ACT, OR THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
8. I further understand that I may suffer adverse tax consequences as a
result of my purchase or disposition of the Option Shares. I represent that I
have consulted with any tax consultant(s) I deem advisable in connection with
the purchase or disposition of the Option Shares and that I am not relying on
the Company for any tax advice.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Exercise
as of the date set forth below.
Signed:
-----------------------------
Dated:
------------------------------------
EXHIBIT B
SMARTDISK CORPORATION
1998 EMPLOYEE STOCK OPTION PLAN
As Adopted January 27, 1998
[Refer to Exhibit 10.1 to SmartDisk Corporation's Registration Statement on Form
S-1 (file # 333-82793) for the text of the 1998 Employee Stock Option Plan]
Exhibit C
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement is entered into this ___ day of ________,
____, by and between SmartDisk Corporation (hereafter "SDC"), and
________________________________, (hereafter "Employee"), and is made a part of,
and shall be incorporated into as Exhibit , the Employment Agreement between SDC
and Employee.
1. Confidential Disclosure.
a. Employee acknowledges that he/she will, during the course of his/her
employment by SDC, be exposed to confidential information and materials relating
to SDC, its business and methods of doing business, and to confidential
information and materials of or pertaining to clients of SDC. Such information
includes, but is not limited to, trade secrets, proprietary material and
knowledge, marketing and development ideas and plans, software program source
and object codes, date files, confidential methods, operations, ideas, plans,
and the terms of this Agreement.
b. Employee agrees that he/she will preserve and maintain the privacy of
all such confidential information received during the course of his/her
employment by SDC, will discuss or disclose the same only as necessary during
the normal course of employment, and then only to other employees of SDC as
necessary. In the event extraordinary or unusual business circumstances require
confidential information to be discussed with or disclosed to third parties
other than the client, Employee shall obtain prior authorization of an officer
of SDC before making such disclosure.
2. Inventions, Discoveries, and Developments.
Employee's rights, title, equities and interests in and to every
invention, discovery and development which Employee conceives or develops,
whether alone or together with others, while in the employment of SDC, or during
the course of Employee's use of any funds, space or facilities of SDC, shall be
determined in accordance with the following:
a. Employee shall promptly notify an officer of SDC with respect to each
such invention, discovery and development.
b. If requested by SDC, and at the expense of SDC, Employee shall
execute all instruments and take all other action, including without limitation,
the furnishing of information reasonably requested by SDC, to:
1) Assign to SDC or its designee all Employee's rights, title,
equities and interests, including without limitation all patent rights, in and
to each such invention, discovery and development except those inventions,
discoveries and developments as to which SDC has determined, in writing, that
exclusive property therein belongs to, and may be retained by, Employee;
2) Assist SDC and any designee thereof in their respective
efforts to secure, maintain, extend and enforce domestic and foreign patent
protection, and to effect other legal protection for any such invention,
discovery or development;
c. Employee shall comply with all temporary restrictions on publication
of writings relating to such inventions, discoveries and developments which are
required by any client or sponsor of a project in connection with the activities
of SDC.
3. Survival
The agreements made by Employee and SDC under Paragraph 1 and 2 above
shall continue until terminated by mutual agreement and shall extend to the
successors and assigns of SDC, and assigns of the Employee.
Agreed to and accepted:
SmartDisk Corporation
By
-------------------------------
---------------------------------
Employee
