STOCK OPTION AGREEMENT
Exhibit
10.8
This
Stock Option Agreement (the “Agreement”) made effective as of ________________,
is by and between PureDepth, Inc., a Delaware corporation (the “Company”), and
______ (the “Optionee”).
RECITALS
A. PureDepth,
Inc. maintains a 2006 Stock Incentive Plan, (“New Plan”) which may be amended
from time to time.
B. The
Company wishes to grant Optionee options to purchase shares of the Company’s
common stock under the Plan.
AGREEMENT
Now,
Therefore, the parties hereto agree as follows:
1. Terms of
Option. Subject to the terms and conditions of the New Plan,
this Agreement sets forth the terms and conditions of Optionee’s right and
option, hereinafter called the “Option,” to purchase all or any part of an
aggregate of _____________ shares (the “Shares”) of the Company’s common stock
(the “Common Stock”).
2. Purchase
Price. The purchase price for the Shares covered by the Option
shall be $_______ per Share, the fair market value of the Common Stock, as
determined by the board of directors of the Company in its sole discretion, on
the date of issuance.
3. Exercise
and Vesting of Option. Subject to the Optionee’s continued
employment [for
directors (applicable to entire form): “service
(which for purposes of this Agreement shall include service as a director,
employee or consultant)”] with
the Company
[and Section 7 hereof], the Option will vest [_________]. The
Company’s board of directors may restrict the rights of or the applicability of
this Section 3 to the extent necessary to comply with Section 16(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Internal
Revenue Code or any other applicable law or regulation. This Option
shall not limit 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, exchange or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business or
assets.
4. Term of
Option. Except as otherwise provided in this Agreement and
subject to the terms of the New Plan, the Option shall be exercisable seven
years from the date of grant; provided, however, that in
the event that Optionee ceases to serve as an employee of the Company, Optionee
or his legal representative shall have until either (i) ninety days from the
date of such termination if such termination is for a reason other than the
Optionee’s death or Disability; or (ii) six months after the date of such
termination if such termination is due to the Optionee’s death or Disability, to
exercise all or any part of the Option that is vested pursuant to Section 3 of
this Agreement. Upon the expiration of such period, or, if earlier,
upon the expiration date of the Option as set forth above, the vested portion of
the Option shall terminate and become null and void. The unvested
portion of the Option shall terminate (if not earlier expired) when the Optionee
ceases to serve as an employee of the Company. For purposes of this
Agreement, the term “Disability” means the inability of the participant, in the
opinion of a qualified physician acceptable to the Company, to perform the major
duties of the participant’s position with the Company because of the sickness or
injury of the participant.
1
5. Method of Exercising
Option. Subject to the terms and conditions of this Agreement,
the Option may be exercised by written notice to the Company. Such
notice shall state the election to exercise the Option and the number of Shares
in respect of which it is being exercised, shall be signed by the person or
persons so exercising the Option and shall be accompanied by payment of the full
purchase price of such Shares payable in one of the following
manners: (a) in United States dollars paid in cash or by check or
bank draft; (b) at the discretion of the Committee (as defined in the New Plan),
by delivery of shares of Common Stock in payment of all or any part of the
exercise price, which shares shall be valued for this purpose at the Fair Market
Value (as defined in the New Plan) on the date such option is exercised; or (c)
at the discretion of the Committee, by instructing the Company to withhold from
the shares of Common Stock issuable upon exercise of the Option, in payment of
all or any part of the exercise price and/or any related withholding tax
obligations, shares of Common Stock, which shares shall be valued for this
purpose at the Fair Market Value or in such other manner as may be authorized
from time to time by the Committee. The shares of Common Stock
delivered by the participant pursuant to Section 5(b) must have been held by the
participant for a period of not less than six months prior to the exercise of
the option, unless otherwise determined by the Committee. Any such
notice shall be deemed given when received by the Company at its principal place
of business. All Shares that shall be purchased upon the exercise of
the Option as provided herein shall be fully paid and
non-assessable.
6. Rights of Option
Holder. Optionee, as holder of the Option, shall not have any
of the rights of a shareholder with respect to the Shares covered by the Option
unless and until such time, and to the extent, Optionee validly exercises all or
any part of the Option.
7. [for
options granted to employees on or after february 23, 2009: Termination
Without Cause Following a Change of Control.
(a) If the Optionee's employment
with the Company (which for purposes hereof shall include any of its
subsidiaries and/or its successor, as applicable) is terminated Without Cause
(as defined below) on or within twelve (12) months following the effective date
of a Change of Control (as defined below), then subject to the Optionee's
execution of a full general release in a form reasonably acceptable to the Board
of Directors of the Company, releasing all claims, known or unknown, that
Optionee may have against Company and any of its subsidiaries or agents,
which such release
must become effective in accordance with its terms prior to the 30th day
following the effective date of such termination, then on the effective date of
such release the Optionee shall become fully vested in the shares subject to the
Option.
(b) Definitions. The following
terms used herein shall have the following
meanings:
(i) “Cause” shall be deemed to
exist if the Optionee engages in the following: (A) theft, dishonesty, misconduct
or falsification of the Company’s (which for purposes of this definition shall
include any of its subsidiaries) or its successor’s records or property;
(B) unauthorized use or
disclosure of the Company’s or its successor’s confidential or proprietary
information or trade secrets; (C) gross negligence or willful
misconduct in the performance of the Optionee's duties to the Company;
(D) failure to perform such
assigned duties and responsibilities as shall be consistent with the duties and
responsibilities of an employee of the Company in a similar job position after
receipt of a written notice of specific deficiencies and Optionee has not cured
any such deficiencies within 15 days after the receipt of such notice;
(E) a material breach by the
Optionee of any agreement between the Optionee and the Company, and such breach
has not been cured by the Optionee within 15 days after written notice of breach
by the Company; (F) conviction (including plea of
no contest) for any felony or act of fraud; or (G) the failure by the
Optionee to cooperate in good faith with
a governmental investigation of the Company or its directors, officers or
employees, if the Company has requested the Optionee's
cooperation.
2
(ii) A termination
of the Optionee's employment shall be “Without Cause” if the Optionee
unilaterally terminates the Optionee's employment with the Company (which for
the purposes of this definition shall include any of its subsidiaries) for any
reason other than Cause; provided, however, that termination of the Optionee's
employment shall not be “Without Cause” if it results from the death or
disability of the Optionee. [for
executive officers and direct ceo-reports: A termination
shall also be “Without Cause” if (i) during the Optionee's employment, the
Company changes the Optionee's title or position without the Optionee's written
permission, such that he or she experiences a material diminution in his
authority, duties or responsibilities (a “Material Adverse Change”), (ii) within
ten (10) days of
the effective date of the Material Adverse Change, the Optionee provides written
notice to the Board of Directors of the Company of the Optionee's intent to
voluntarily resign from employment with the Company due to the Material Adverse
Change if such Material Adverse Change is not cured within fifteen
(15) days of the
Board’s receipt of such notice, (iii) the Board does not cure the Material
Adverse Change within fifteen (15) days of its
receipt of such notice, and (iv) the Optionee voluntarily resigns no later than
the end of business on the fifteenth (15th)
day following
the Board’s receipt of such notice.]
(iii) “Change of
Control” is defined as the occurrence of any of the following
events: (A) any "person"
(as defined in Section 13(d) and 14(d) of the Exchange
Act), excluding
for this purpose, (i) the Company or any subsidiary of the Company, or (ii) any
employee benefit plan of the Company or any subsidiary of the Company, or any
person or entity organized, appointed or established by the Company for or
pursuant to the terms of any plan which acquires beneficial ownership of voting
securities of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly of securities of the
Company representing more than fifty percent (50%) of the combined voting power
of the Company's then outstanding securities; provided, however, that no Change
of Control will be deemed to have occurred as a result of a change in ownership
percentage resulting solely from an acquisition of securities by the Company,
the grant or exercise of any stock option, stock award, stock purchase right or
similar equity incentive, or the continued beneficial ownership by any party of
voting securities of the Company which such party beneficially owned as of the
date of this Agreement; or (B) consummation
of a reorganization, merger or consolidation or sale or other disposition of at
least 80% of the assets (other than cash and cash equivalents) of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, all or substantially all of the individuals and entities who were
the beneficial owners of outstanding voting securities of the Company
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than fifty percent (50%) of the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the company resulting from such Business
Combination (including, without limitation, a company which, as a result of such
transaction, owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Business
Combination, of the outstanding voting securities of the Company; or
(C) approval by
the stockholders of the Company of a complete liquidation or dissolution of the
Company.]
7. [for
options granted to non-executive directors on or after february 23,
2009: Termination
Following a Change of Control.
If the
Optionee's service with the Company (which for purposes hereof shall include any
of its subsidiaries and/or its successor, as applicable) is
terminated on or within twelve (12) months following the effective
date of a Change of Control [as defined for employees above], then the Optionee
shall become fully vested in the shares subject to the
Option.]
8. Non-Transferability. The
Option shall not be transferable and the Company shall not be required to
recognize any attempted assignment of such rights by any participant except: (i)
in the event of the Optionee's death, by will or the laws of descent and
distribution to the limited extent provided in the New Plan; (ii) pursuant to a
qualified domestic relations order as defined by the Internal Revenue Code of
1986, as amended; or (iii) pursuant to Title I of the Employee Retirement Income
Security Act, or the rules thereunder (if
applicable). Notwithstanding the preceding sentence, the Option may
be transferred by the holder thereof to family members, trusts or
charities. During the Optionee's lifetime, the Option may be
exercised only by him, by his guardian or legal representative or by the
transferees permitted by the preceding sentence. Except as set forth
above, the Option may not be assigned, transferred, pledged, or hypothecated in
any way, shall not be assignable by operation of law, and shall not be subject
to execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation, or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option shall be null and void and without
effect.
3
9. Securities Law
Matters. Optionee acknowledges that the Shares to be received
by him upon exercise of the Option may have not been registered under the
Securities Act of 1933 or the Blue Sky laws of any state (collectively, the
“Securities Acts”). If such Shares have not been so registered,
Optionee acknowledges and understands that the Company is under no obligation to
register under the Securities Acts, except as otherwise explicitly agreed by the
Company, the Shares received by him or to assist him in complying with any
exemption from such registration if he should at a later date wish to dispose of
the Shares. Optionee acknowledges that if not then registered under the
Securities Acts, the Shares shall bear a legend restricting the transferability
thereof, such legend to be substantially in the following form:
“The
shares represented by this certificate have not been registered or qualified
under federal or state securities laws. The shares may not be offered
for sale, sold, pledged or otherwise disposed of unless so registered or
qualified, unless an exemption exists or unless such disposition is not subject
to the federal or state securities laws, and the Company may require that the
availability of any exemption or the inapplicability of such securities laws be
established by an opinion of counsel, which opinion of counsel shall be
reasonably satisfactory to the Company.”
10. Optionee
Representations. Optionee hereby represents and warrants that
Optionee has reviewed with his own tax advisors the federal, state, and local
tax consequences of the transactions contemplated by this
Agreement. Optionee is relying solely on such advisors and not on any
statements or representation of the Company or any of its agents. Optionee
understands that he will be solely responsible for any tax liability that may
result to him as a result of the transactions contemplated by this
Agreement. The Option, if exercised, will be exercised for investment
and not with a view to the sale or distribution of the Shares to be received
upon exercise thereof.
The
undersigned has obtained and reviewed the Company’s filings with the Securities
and Exchange Commission and has been given access to full and complete
information regarding the Company and has utilized such access to the
undersigned’s satisfaction for the purpose of obtaining information on the
Company. Particularly, the undersigned has been given reasonable
opportunity to meet with and/or contact Company representatives for the purpose
of asking questions of, and receiving answers from, such representatives
concerning the terms and conditions of the offering and to obtain any additional
information, to the extent reasonably available.
The
undersigned has, either alone or with the assistance of a professional advisor,
sufficient knowledge and experience in financial and business matters that the
undersigned believes himself/herself (or itself) capable of evaluating the
merits and risks of the grant of options and the suitability of receiving this
grant of options in light of the undersigned’s financial condition and
investment needs, and legal, tax and accounting matters.
4
The
undersigned recognizes that an option on Shares in the Company involves a high
degree of risk, including but not limited to the risk of losing becoming
valueless.
The
undersigned is aware that no federal or state agency, including the Securities
and Exchange Commission or the securities commission or authority of any state,
has approved or disapproved the option on Shares or made any finding
or determination as to the fairness or fitness of the option on Shares for
public sale.
[The undersigned is a bona fide
resident of California.]
11. No Continued Employment,
Engagement or Right to Corporate Assets. No participant under
the New Plan shall have any right, because of his or her participation, to
continue in the employ of, or as a consultant to, the Company for any period of
time or to any right to continue his or her present or any other rate of
compensation. Nothing contained in the New Plan shall be construed as
giving an employee, a consultant, such persons’ beneficiaries or any other
person any equity or interests of any kind in the assets of the Company or
creating a trust of any kind or a fiduciary relationship of any kind between the
Company and any such person.
12. Breach of Confidentiality,
Assignment of Inventions, or Non-Compete
Agreements. Notwithstanding anything in the New Plan to the
contrary, in the event that a participant materially breaches the terms of any
confidentiality, assignment-of-inventions, or noncompete agreement entered into
with the Company or any parent or subsidiary of the Company, whether such breach
occurs before or after termination of such participant’s employment or other
service with the Company or any subsidiary, the Committee in its sole discretion
may immediately terminate all rights of the participant under the New Plan and
any agreements evidencing an Incentive then held by the participant without
notice of any kind.
13. Incorporation by
Reference. The terms and conditions of the New Plan, a copy of
which has been delivered to Optionee, are hereby incorporated herein and made a
part hereof by reference as if set forth in full. In the event of any
conflict or inconsistency between the provisions of this Agreement and those of
the New Plan, the provisions of the New Plan shall govern and control.
14. General.
(a) The
Company shall at all times during the term of the Option reserve and keep
available such number of Shares as will be sufficient to satisfy the
requirements of this Option Agreement.
(b) Nothing
herein expressed or implied is intended or shall be construed as conferring upon
or giving to any person, firm, or corporation other than the parties hereto, any
rights or benefits under or by reason of this Agreement.
(c) Each
party hereto agrees to execute such further documents as may be necessary or
desirable to effect the purposes of this Agreement.
(d) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
agreement.
(e) This
Agreement, in its interpretation and effect, shall be governed by the laws of
the State of Delaware applicable to contracts executed and to be performed
therein.
5
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
By
____________________________________
Its __________________________________
_______________________________________
OPTIONEE
6
| ™ Incentive Stock Option |
Participant: ________________________________________
|
| ™ Nonstatutory Stock Option |
Date: __________________________
|
STOCK
OPTION EXERCISE NOTICE
Attention:
Chief Financial Officer
___________________________
___________________________
Ladies
and Gentlemen:
1. Option. I was granted an
option (the “Option”) to purchase shares of the
common stock (the “Shares”) of PureDepth, Inc. (the
“Company”) pursuant to the
Company’s
2006 Stock Incentive Plan (the “Plan”), and my Stock
Option Agreement (the “Agreement”) as follows:
|
Date
of Grant:
|
_______________________________
|
|
| Number of Option Shares: |
_______________________________
|
|
| Exercise Price per Share: |
$______________________________
|
2. Exercise
of Option. I hereby elect to
exercise the Option to purchase the following number of Shares, all of which are
Vested Shares, in accordance with the Agreement:
|
Total Shares
Purchased:
|
_______________________________
|
|
| Total Exercise Price (Total Shares X Price per Share) |
$______________________________
|
3. Payments. I enclose payment
in full of the total exercise price for the Shares in the following form(s), as
authorized by my Agreement:
|
™
Cash:
|
$______________________________
|
|
| ™ Check: |
$______________________________
|
|
|
™ Tender of
Company Stock:
|
Contact
Plan Administrator
|
4. Tax
Withholding. I authorize
payroll withholding and otherwise will make adequate provision for the federal,
state, local and foreign tax withholding obligations of the Company, if any, in
connection with the Option. If I am exercising a Nonstatutory Stock
Option, I enclose payment in full of my withholding taxes, if any, as
follows:
(Contact
Plan Administrator for amount of tax due.)
|
™
Cash:
|
$______________________________
|
|
| ™ Check: |
$______________________________
|
7
5. Participant
Information.
My
address is: ______________________________________________
______________________________________________
My Social
Security Number is: ___________________________________
6. Notice of
Disqualifying Disposition. If the Option is
an Incentive Stock Option, I agree that I will promptly notify the Chief
Financial Officer of the Company if I transfer any of the Shares within one (1)
year from the date I exercise all or part of the Option or within two (2) years
of the Date of Grant.
7. Binding
Effect. I agree that the
Shares are being acquired in accordance with and subject to the terms,
provisions and conditions of the Option Agreement and the Plan, to all of which
I hereby expressly assent. This Agreement shall inure to the benefit
of and be binding upon my heirs, executors, administrators, successors and
assigns.
8. Transfer. I understand and
acknowledge that the Shares have not been registered under the Securities Act of
1933, as amended (the “Securities
Act”), and that
consequently the Shares must be held indefinitely unless they are subsequently
registered under the Securities Act, an exemption from such registration is
available, or they are sold in accordance with Rule 144 or Rule 701 under the
Securities Act. I further understand and acknowledge that the Company
is under no obligation to register the Shares. I understand that the
certificate or certificates evidencing the Shares will be imprinted with legends
which prohibit the transfer of the Shares unless they are registered or such
registration is not required in the opinion of legal counsel satisfactory to the
Company.
I
am aware that Rule 144 under the Securities Act, which permits limited public
resale of securities acquired in a nonpublic offering, is not currently
available with respect to the Shares and, in any event, is available only if
certain conditions are satisfied. I understand that any sale of the
Shares that might be made in reliance upon Rule 144 may only be made in limited
amounts in accordance with the terms and conditions of such rule and that a copy
of Rule 144 will be delivered to me upon request.
I
understand that I am purchasing the Shares pursuant to the terms of the Plan and
my Agreement, copies of which I have received and carefully read and
understand.
Very
truly yours,
____________________________________
(Signature)
Receipt
of the above is hereby acknowledged.
By:_________________________________
Title:________________________________
Dated:_______________________________
8
