EARTHSHELL CONTAINER CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement ("Agreement") is made and
entered into as of the Date of Grant indicated below by and between EarthShell
Container Corporation, a Delaware corporation (the "Company"), and the person
named below as Optionee.
WHEREAS, Optionee is a director of the Company; and
WHEREAS, pursuant to the Company's 1995 Stock Incentive Plan (the
"Plan"), Optionee has been automatically granted an option to purchase shares of
the common stock of the Company (the "Common Stock"), on the terms and
conditions set forth in the Plan and herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS.
(a) Pursuant to Section 4 of the Plan, the Company hereby grants to
Optionee, and Optionee hereby accepts, as of the Date of Grant, an option to
purchase the number of shares of Common Stock indicated below (the "Option
Shares") at the Exercise Price per share indicated below, which option shall
expire at 5:00 o'clock p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). The Option shall vest immediately and shall become
exercisable on the first anniversary of the Date of Grant (subject to Section 3)
to purchase that number of Option Shares indicated below.
Optionee: ________________________
Date of Grant:
Number of shares purchasable:
Exercise Price per share: $
The Option is not intended to qualify as an incentive stock option under Section
422 of the Internal Revenue Code (an "Incentive Stock Option").
(b) Unless earlier terminated pursuant to Section 2(b) of this
Agreement, this Option shall expire upon the first to occur of the following
(the "Expiration Date"):
(i) The first anniversary of the date upon which Optionee
shall cease to be a director of the Company for any reason; or
EXHIBIT 10.23
(ii) The fifth anniversary of the Date of Grant.
2. ACCELERATION AND TERMINATION OF OPTION.
(a) ACCELERATION OF OPTION. This Option shall become fully
exercisable upon the first to occur of the following:
(i) The date of dissemination to the stockholders of the
Company of a proxy statement seeking stockholder approval of a
reorganization, merger or consolidation of the Company as a result of which
the outstanding securities of the class then subject to the Plan are
exchanged for or converted into cash, property and/or securities not issued
by the Company, unless such reorganization, merger or consolidation shall
have been affirmatively recommended to the stockholders of the Company by
the Board of Directors;
(ii) The first date upon which the directors of the Company
who were last nominated by the Board of Directors for election as directors
shall cease to constitute a majority of the authorized number of directors
of the Company; or
(iii) The date of dissemination to the stockholders of the
Company of a proxy statement disclosing a change of control (as defined by
the Company) of the Company.
(b) TERMINATION OF OPTION. This Option shall terminate on the first
to occur of the following:
(i) The dissolution or liquidation of the Company;
(ii) A reorganization, merger or consolidation of the
Company as a result of which the outstanding securities of the class then
subject to this Option are exchanged for or converted into cash, property
and/or securities not issued by the Company, which reorganization, merger
or consolidation shall have been affirmatively recommended to the
stockholders of the Company by the Board of Directors; or
(iii) The sale of substantially all of the property and
assets of the Company.
3. EXERCISE. Notwithstanding the foregoing provisions of this
Agreement, Optionee and the Company hereby acknowledge and agree that the Option
shall not be exercised with respect to the Option Shares until the date that is
180 days after the completion of the Company's initial public offering pursuant
to a registration statement under the Securities Act of 1933, as amended, in
which the Company registers for its account an aggregate of at least $35,000,000
of its Common Stock. The Option shall be exercisable during Optionee's lifetime
only by Optionee or by his or her guardian or legal representative, and after
Optionee's death only by the person or entity entitled to do so under Optionee's
last
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will and testament or applicable intestate law. The Option only be exercised by
the delivery to the Company of a written notice of such exercise (the "Exercise
Notice"), which notice shall specify the number of Option Shares to be purchased
(the "Purchased Shares") and the aggregate Exercise Price for such shares,
together with payment in full of such aggregate Exercise Price in cash or by
check payable to the Company; PROVIDED, HOWEVER, that, in the discretion of the
Board of Directors of the Company, payment of such aggregate Exercise Price may
instead be made, in whole or in part, by the delivery to the Company of a
certificate or certificates representing shares of Common Stock, duly endorsed
or accompanied by duly executed stock powers, which delivery effectively
transfers to the Company good and valid title to such shares, free and clear
of any pledge, commitment, lien, claim or other encumbrance (such shares to
be valued on the basis of the aggregate Fair Market Value (as defined in the
Plan) thereof on the date of such exercise), provided that the Company is not
then prohibited from purchasing or acquiring such shares of Common Stock and
such shares so delivered have been owned by Optionee for at least six months.
5. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Optionee shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company. The Company
may, in its sole discretion, offset any amounts owed by the Company to Optionee
in order to satisfy Optionee's obligations under this Section 5.
6. NOTICES. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given on the day delivered if delivered personally (or one day after
mailing by reputable overnight courier) or five days after mailing if by
certified or registered mail, postage prepaid, return receipt requested, to the
Company at 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Chief Financial Officer, or to Optionee at the address set forth beneath his or
her signature on the signature page hereto, or at such other addresses as each
may designate by written notice in the manner aforesaid.
7. STOCK EXCHANGE REQUIREMENTS; APPLICABLE LAWS. Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (a) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (b) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
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8. NONTRANSFERABILITY. Neither the Option nor any interest therein
may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
9. PLAN. The Option is granted pursuant to the Plan, as in effect
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; PROVIDED, HOWEVER, that no
such amendment shall deprive Optionee, without his or her consent, of the Option
or of any of Optionee's rights under this Agreement. The interpretation and
construction by the Board of Directors, or the duly appointed committee thereof,
of the Plan, this Agreement, the Option and such rules and regulations as may be
adopted by the Board of Directors or such committee for the purpose of
administering the Plan shall be final and binding upon Optionee. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Optionee or any other person or entity then entitled to exercise the Option.
10. STOCKHOLDER RIGHTS. No person or entity shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. GOVERNING LAW. This Agreement and the Option granted hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
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IN WITNESS WHEREOF, the Company and Optionee have duly executed this
Agreement as of the Date of Grant.
EARTHSHELL CONTAINER CORPORATION
By: ____________________________________
Title: _________________________________
OPTIONEE
________________________________________
Signature
________________________________________
Xxxxxx Xxxxxxx
________________________________________
City, State and Zip Code
________________________________________
Social Security Number
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