Exhibit
10.8
THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE OR FOREIGN
JURISDICTION, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND
QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF U.S. FEDERAL AND
STATE OR APPLICABLE FOREIGN SECURITIES LAWS OR IF THE COMPANY IS
PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION AND QUALIFICATION UNDER U.S. FEDERAL AND STATE OR
APPLICABLE FOREIGN SECURITIES LAWS IS NOT REQUIRED.
VIVAKOR,
INC.
2008 INCENTIVE PLAN
NOTICE OF NONSTATUTORY STOCK OPTION
GRANT
VIVAKOR,
INC. (the
“Company”) hereby grants you the following Option to
purchase shares of its common stock
(“Shares”). The terms and conditions of this
Option are set forth in the Stock Option Agreement (“Stock
Option Agreement”) that follows and the VIVAKOR, INC. 2008 Incentive
Plan (the “Plan”), both of which are attached to and
made a part of this document. This page is meant to be a
cover page for informational purposes only, in the event any of the
terms hereon are in conflict with the Stock Option Agreement and/or
the Plan, the terms of the Stock Option Agreement and/or the Plan
shall supersede the information on this page.
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Date of
Grant:
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October 1,
2009
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Name of
Optionee:
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John
Gryga
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Number of
Option Shares:
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250,000
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Exercise
Price per Share:
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$
0.44
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Vesting
Start Date:
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October 1,
2009
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Type of
Option:
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o Incentive Stock Option
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x Nonstatutory Stock
Option
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Vesting
Schedule:
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The option
shares shall vest on a quarterly basis over 8 (eight) quarters at a
rate of 31,250 shares per quarter. The first vesting
date shall be December 31, 2009.
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Payment
Forms:
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By cash, cash
equivalents, or Shares owned by the Optionee for at least six
months, and if the Company’s Shares become publicly traded,
by “cashless” exercise, as set forth in the Stock
Option Agreement.
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VIVAKOR, INC.
NONSTATUTORY STOCK OPTION
AGREEMENT
Optionee:
John Gryga
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Grant of
Stock Option . As of
the Date of Grant (identified in Section 19 below),
Vivakor, Inc., a Nevada corporation (the “ Company
”), hereby grants a Nonstatutory Stock Option (the “
Option ”) to the Optionee (identified above), a
director of the Company, to purchase the number of shares of the
Company’s common stock, $0.001 par value per share (the
“ Common Stock ”), identified in Section 19
below (the “ Shares ”), subject to the terms and
conditions of this agreement (the “ Stock Option
Agreement ”) and the Company’s 2008 Incentive
Plan effective February 1, 2008 (the “ Plan ”),
which is hereby incorporated herein in its entirety by reference.
The Shares, when issued to the Optionee upon the exercise of the
Option, shall be fully paid and nonassessable. The Option is
not an “incentive stock option” as defined in
Section 422 of the Internal Revenue Code.
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Definitions . All capitalized terms used herein shall have
the meanings set forth in the Plan unless otherwise specifically
provided herein. Section 19 below sets forth meanings for
various capitalized terms used in this Agreement.
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Option
Term . The Option
shall commence on the Date of Grant (identified in Section 19
below) and terminate on the date immediately prior to the tenth
(10 th ) anniversary of the Date of Grant. The period
during which the Option is in effect and may be exercised is
referred to herein as the “ Option Period.
”
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Option
Price . The Option
Price per Share is identified in Section 19 below.
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Vesting . The total number of Shares subject to this
Option shall vest in accordance with the Vesting Schedule
(identified in Section 19 below). The Shares may be purchased
at any time after they become vested, in whole or in part, during
the Option Period; provided, however, the Option may only be
exercisable to acquire whole Shares. The right of exercise provided
herein shall be cumulative so that if the Option is not exercised
to the maximum extent permissible after vesting, the vested portion
of the Option shall be exercisable, in whole or in part, at any
time during the Option Period.
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Method of
Exercise . The Option
is exercisable by delivery of a written notice (a form of which is
attached hereto) to the attention of the Chief Financial Officer of
the Company at the address for notices to the Company provided
below, signed by the Optionee, specifying the number of Shares to
be acquired on, and the effective date of, such exercise. The
Optionee may withdraw notice of exercise of this Option, in
writing, at any time prior to the close of business on the business
day preceding the proposed exercise date.
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Method of
Payment . The Option
Price upon exercise of the Option shall be payable to the Company
in full either: (i) in cash or its equivalent, or
(ii) subject to prior approval by the Board of Directors or
the Compensation Committee in its discretion, by tendering
previously acquired Shares having an aggregate Fair Market Value
(as defined in the Plan) at the time of exercise equal to the total
Option Price (provided that the Shares must have been held by the
Optionee for at least six (6) months prior to their tender to
satisfy the Option Price), or (iii) subject to prior approval
by the Board of Directors or the Compensation Committee in its
discretion, by withholding Shares which otherwise would be acquired
on exercise having an aggregate Fair Market Value at the time of
exercise equal to the total Option Price (as determined pursuant to
Section 2.3 of the Plan), or (iv) subject to prior
approval by the Board of Directors or the Compensation Committee in
its discretion, by a combination of (i), (ii), and
(iii) above. Any payment in shares of Common Stock shall be
effected by the delivery of such shares to the Chief Financial
Officer of the Company, duly endorsed in blank or accompanied by
stock powers duly executed in blank, together with any other
documents as the Chief Financial Officer may require. If the
payment of the Option Price is remitted partly in Shares, the
balance of the payment of the Option Price shall be paid in either
cash, certified check, bank cashiers’ check, or by wire
transfer.
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The Board of Directors or the
Compensation Committee, in its discretion, may allow (i) a
“cashless exercise” as permitted under Federal Reserve
Board’s Regulation T, 12 CFR Part 220 (or its
successor), and subject to applicable securities law restrictions
and tax withholdings, or (ii) any other means of exercise
which the Board of Directors or the Compensation Committee, in its
discretion, determines to be consistent with the Plan’s
purpose and applicable law.
As soon as practicable after receipt
of a written notification of exercise and full payment, the Company
shall deliver to or on behalf of the Optionee, in the name of the
Optionee or other appropriate recipient, Share certificates for the
number of Shares purchased under the Option. Such delivery shall be
effected for all purposes when a stock transfer agent of the
Company shall have deposited such certificates in the United States
mail, addressed to Optionee or other appropriate
recipient.
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Restrictions on Exercise
. The Option may not be exercised if
the issuance of such Shares or the method of payment of the
consideration for such Shares would constitute a violation of any
applicable federal or state securities or other laws or
regulations, including any such laws or regulations or Company
policies respecting blackout periods, or any rules or regulations
of any stock exchange on which the Common Stock may be
listed.
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Termination of Employment
. Voluntary or involuntary
termination of Employment and the death or Disability of Optionee
shall affect Optionee’s rights u
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