Contract
Exhibit
10.9
THE
OPTION GRANTED PURSUANT TO THIS AGREEMENT AND THE SECURITIES ISSUABLE UPON THE
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE BLUE SKY OR SECURITIES LAWS IN RELIANCE UPON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND BLUE SKY LAWS, AND
MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR QUALIFICATION, OR AN EXEMPTION FROM THE REGISTRATION OR
QUALIFICATION REQUIREMENTS OF SUCH ACT OR LAWS.
OPTION
AGREEMENT
Section
1. Definitions.
Capitalized
terms used herein shall have the meanings set forth below.
"Agreement" shall mean
this Option Agreement.
"Committee" shall mean
the Committee referred to in Section 3 of the Plan.
"Company" shall mean
Powersafe Technology Corp., a Delaware corporation.
"Date of Grant" shall
mean the date specified in the Notice of Option Grant.
"Disability" shall
mean the inability of the Grantee to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment, as
determined in the sole discretion of the Committee.
"Grantee" or "Optionee” means the
individual named in the Notice of Option Grant.
"Notice of Option
Grant" means the Notice of Option Grant dated the date hereof granted to
the Grantee.
"Permitted
Transferees" shall mean a transfer (i) under a will or under the rules of
intestate succession or (ii) to the Grantee's spouse, children or grandchildren
or to a trust established by the Grantee for the benefit of the Grantee or the
Grantee's spouse, children or grandchildren, provided in either
case that the Permitted Transferee agrees in writing, on a form prescribed by
the Committee, to be bound by all the provisions of this Agreement.
"Plan" shall mean the
Powersafe Technology Corp. 2009 Stock Option Plan.
"Securities Act" shall
mean the Securities Act of 1933, as amended.
"Shares" or "Stock" shall mean the
Common Stock of the Company.
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"Transfer" shall mean
any direct or indirect sale, assignment, transfer, gift, pledge, encumbrance or
other disposition.
"Transfer Notice"
shall have the meaning set forth on Section 5.2 of this Agreement.
Section
2. Grant of
Option.
2.1 Subject to the terms and conditions set
forth in the Plan, the
Notice of Option Grant and this Agreement, the Company hereby grants to the
Grantee the option to purchase the amount of Shares indicated in the Notice of
Option Grant.
2.2 This
option is granted pursuant to the Plan, a copy of which the Grantee acknowledges
having received. The provisions of the Plan are incorporated into this Agreement
by reference.
Section
3. Right to
Exercise.
3.1 Subject
to the other provisions contained in this Agreement and the Notice of Option
Grant, the option may be exercised at any time prior to its expiration date as
set forth in the Notice of Option Grant. The Grantee or the Grantee's
authorized representative may exercise this option by giving written notice to
the Company pursuant to Section 7.4. The notice shall be signed by
the person exercising this option and if the option is being exercised by the
representative of the Grantee, the notice shall be accompanied by proof
satisfactory to the Company of the representative's right to exercise this
option.
3.2 In
the event that the Company determines that it is required to withhold any tax as
a result of the exercise of this option, the Grantee, as a condition to the
exercise of this option, shall make arrangements satisfactory to the Company to
enable it to satisfy all federal, state and local withholding
requirements. The Optionee shall also make arrangements satisfactory
to the Company to enable it to satisfy any withholding requirements that may
arise in connection with the vesting or disposition of Shares issued in
connection with exercising this option.
Section
6. Representations and
Warranties.
Recognizing
that the Company will be relying on the information and on the representations
and warranties set forth herein, the Grantee hereby acknowledges, represents and
warrants to, and agrees with, the Company to the representations and warranties
set forth below, which shall be true and correct as of the date hereof and upon
each date that the Grantee exercises the option.
(a) I
represent and warrant that I am acquiring and will hold the option and the
Shares received upon exercise of such option for investment for my account only,
and not with a view to, or for resale in connection with, any "distribution" of
the option and the Shares within the meaning of the Securities
Act.
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(b) I
understand that the option and the Shares have not been registered under the
Securities Act or any state securities laws by reason of a specific exemption
therefrom and that the option and the Shares must be held indefinitely, unless
they are subsequently registered under the Securities Act or I obtain an opinion
of counsel (in form and substance satisfactory to the Company and its counsel)
that registration is not required.
(c) I
acknowledge that the Company is under no obligation to register the option or
the Shares subject to the Option.
(d) I
am aware of the adoption of Rule 144 by the Securities and Exchange Commission
under the Securities Act, which permits limited public resales of securities
acquired in a non-public offering, subject to the satisfaction of certain
conditions. These conditions include (without limitation) that certain current
public information about the issuer is available, that the resale occurs only
after the holding period required by Rule 144 has been satisfied, that the sale
occurs through an unsolicited "broker's transaction" and that the amount of
securities being sold during any three-month period does not exceed specified
limitations. I understand that the conditions for resale set forth in Rule 144
have not been satisfied and that the Company has no plans to satisfy these
conditions in the foreseeable future.
(e) I
will not sell, transfer or otherwise dispose of the option and the Shares
subject thereto in violation of the Securities Act, the Securities Exchange Act
of 1934, or the rules promulgated thereunder, including Rule 144 under the
Securities Act or any blue sky or state securities laws or
regulations.
(f) I
acknowledge that I have received and had access to such information as I
consider necessary or appropriate for deciding whether to invest in the option
and the Shares subject thereto and that I had an opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the
issuance of the option and the Shares subject thereto.
(g) I
am aware that my investment in the Company is speculative and subject to the
risk of complete loss.
(h) I
acknowledge that the option and the Shares remain subject to the Company's Right
of first refusal and may remain subject to the Company's Right of Repurchase,
all in accordance with the applicable Notice of Stock Option Grant and Option
Agreement.
(i)
I acknowledge that I am acquiring the option and the Shares subject thereto to
all the terms of the Plan, the Notice of Grant and this Agreement.
Section
7. Miscellaneous.
7.1 Except
as specifically provided herein, this Agreement and the rights and obligations
hereunder are not transferable or assignable by the Grantee.
7.2
This Agreement and the rights, powers and duties set forth herein shall be
binding upon and inure to the benefit of the heirs, executors, administrators,
successors, legal representatives and permitted successors and assigns of the
parties hereto.
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7.3 Neither
this Agreement nor any provisions hereof shall be waived, modified, discharged
or terminated except by an instrument in writing signed by the party against
whom any such waiver, modification, discharge or termination is
sought.
7.4 Any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be mailed by certified mail, return receipt requested,
nationally recognized overnight delivery service or by hand to (a) the Optionee
at his or her address on the books of the Company, and (b) to the Company, to
0000 Xxxxx Xxxxxx Xxx., Xxxxxxxx, XX 00000 attention: Administrator. Any notice
or other communications given by certified mail shall be deemed given at the
time of certification thereof, except for a notice changing a party's address,
which shall be deemed given at the time of receipt thereof.
7.5 This
Agreement shall be deemed to have been made under, and shall be governed by, and
construed in accordance with, the substantive laws of the State of Delaware
(excluding the law thereof which requires the application of or reference to the
law of any other jurisdiction).
7.6 This
Agreement may be signed in counterparts and by facsimile, each of which shall be
an original, and both of which shall together constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the ______ day
of ________, 2009.
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THE
COMPANY:
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By.
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Name:
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Xxxx
X. Xxxxx
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Title:
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President
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THE
GRANTEE:
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NOTICE
OF OPTION GRANT
Powersafe
Technology Corp. (the "Company") is pleased
to advise you that pursuant to the attached Option Plan and Option Agreement you
have been granted the following options to purchase shares of common stock of
the Company:
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Name
of Grantee:
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Number
of Shares:
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Date
of Grant:
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Exercise
Price:
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{INSERT $]
per share
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Expiration
Date:
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Vesting
Schedule:
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Restriction
on Transferability:
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The
option and shares subject to the option can not be transferred, sold or
otherwise assigned
except____________________________________________________________________
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By your
signature and the signature of the Company, you and the Company agree that this
option is granted under and governed by the terms and conditions of the Option
Plan and the Option Agreement, both of which are attached to and made a part of
this document.
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GRANTEE:
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By.
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Name:
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Name: Xxxx
X. Xxxxx
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Title: President
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