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Exhibit
10.8
THE SECURITIES WHICH ARE THE SUBJECT OF
THIS AGREEMENT HAVE 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.
IDENTIPHI,
INC.
STOCK OPTION
AGREEMENT
IdentiPHI, Inc. has granted
to the Participant named in the Notice of Grant of Stock
Option (the “ Grant Notice
” ) to which this Stock Option Agreement (the
“ Option Agreement ” ) is
attached an option (the “ Option
” ) to purchase certain shares of Stock upon the terms
and conditions set forth in the Grant Notice and this Option
Agreement. The Option has been granted pursuant to and shall in all
respects be subject to the terms and conditions of the IdentiPHI,
Inc. 2007 Equity Incentive Plan (the “
Plan ” ), as amended to the Date of
Grant, the provisions of which are incorporated herein by
reference. By signing the Grant Notice, the Participant:
(a) acknowledges receipt of, and represents that the
Participant has read and is familiar with the terms and conditions
of, the Grant Notice, this Option Agreement and the Plan,
(b) accepts the Option subject to all of the terms and
conditions of the Grant Notice, this Option Agreement and the Plan,
and (c) agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board upon any questions
arising under the Grant Notice, this Option Agreement or the
Plan.
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1. |
D EFINITIONS AND C
ONSTRUCTION . |
1.1 Definitions
. Unless otherwise defined herein, capitalized terms
shall have the meanings assigned to such terms in the Grant Notice
or the Plan.
1.2 Construction
. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation
of any provision of this Option Agreement. Except when otherwise
indicated by the context, the singular shall include the plural and
the plural shall include the singular. Use of the term
“or” is not intended to be exclusive, unless the
context clearly requires otherwise.
2.1 Tax Status of
Option . This Option is intended to have the tax
status designated in the Grant Notice.
(a) Incentive Stock
Option . If the Grant Notice so designates, this
Option is intended to be an Incentive Stock Option within the
meaning of Section 422(b) of the Code, but the Company does
not represent or warrant that this Option qualifies as such. The
Participant should consult with the Participant’s own tax
advisor regarding the tax effects of this Option and the
requirements necessary to obtain favorable income tax treatment
under
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Section 422 of the Code,
including, but not limited to, holding period requirements. (NOTE
TO PARTICIPANT: If the Option is exercised more than three
(3) months after the date on which you cease to be an Employee
(other than by reason of your death or permanent and total
disability as defined in Section 22(e)(3) of the Code), the
Option will be treated as a Nonstatutory Stock Option and not as an
Incentive Stock Option to the extent required by Section 422
of the Code.)
(b) Nonstatutory Stock
Option. If the Grant Notice so designates, this Option is
intended to be a Nonstatutory Stock Option and shall not be treated
as an Incentive Stock Option within the meaning of
Section 422(b) of the Code.
2.2 ISO Fair Market Value
Limitation. If the Grant Notice designates this Option as an
Incentive Stock Option, then to the extent that the Option
(together with all Incentive Stock Options granted to the
Participant under all stock option plans of the Participating
Company Group, including the Plan) becomes exercisable for the
first time during any calendar year for shares having a Fair Market
Value greater than One Hundred Thousand Dollars ($100,000), the
portion of such options which exceeds such amount will be treated
as Nonstatutory Stock Options. For purposes of this Section,
options designated as Incentive Stock Options are taken into
account in the order in which they were granted, and the Fair
Market Value of stock is determined as of the time the option with
respect to such stock is granted. If the Code is amended to provide
for a different limitation from that set forth in this Section,
such different limitation shall be deemed incorporated herein
effective as of the date required or permitted by such amendment to
the Code. If the Option is treated as an Incentive Stock Option in
part and as a Nonstatutory Stock Option in part by reason of the
limitation set forth in this Section, the Participant may designate
which portion of such Option the Participant is exercising. In the
absence of such designation, the Participant shall be deemed to
have exercised the Incentive Stock Option portion of the Option
first. Separate certificates representing each such portion shall
be issued upon the exercise of the Option. (NOTE TO PARTICIPANT: If
the aggregate Exercise Price of the Option (that is, the Exercise
Price multiplied by the Number of Option Shares) plus the aggregate
exercise price of any other Incentive Stock Options you hold
(whether granted pursuant to the Plan or any other stock option
plan of the Participating Company Group) is greater than $100,000,
you should contact the Chief Financial Officer of the Company to
ascertain whether the entire Option qualifies as an Incentive Stock
Option.)
All questions of
interpretation concerning the Grant Notice, this Option Agreement,
the Plan or any other form of agreement or other document employed
by the Company in the administration of the Plan or the Option
shall be determined by the Board. All such determinations by the
Board shall be final, binding and conclusive upon all persons
having an interest in the Option, unless fraudulent or made in bad
faith. Any and all actions, decisions and determinations taken or
made by the Board in the exercise of its discretion pursuant to the
Plan or the Option or other agreement thereunder (other than
determining questions of interpretation pursuant to the preceding
sentence) shall be final, binding and conclusive upon all persons
having an interest in the Option. Any Officer shall have the
authority to act on behalf of the Company with respect to any
matter, right, obligation, or election which is the responsibility
of or which is allocated to the Company herein, provided the
Officer has apparent authority with respect to such matter, right,
obligation, or election.
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4. |
E XERCISE OF
THE O PTION . |
4.1 Right to Exercise
. Except as otherwise provided herein, the Option shall be
exercisable on and after the Initial Vesting Date and prior to the
termination of the Option (as provided in Section 6) in an
amount not to exceed the number of Vested Shares less the number of
shares previously acquired upon exercise of the Option, subject to
the Company’s repurchase rights set forth in Section 11.
In no event shall the Option be exercisable for more shares than
the Number of Option Shares, as adjusted pursuant to
Section 9.
4.2 Method of Exercise
. Exercise of the Option shall be by means of
electronic or written notice (the “ Exercise
Notice ” ) in a form authorized by the
Company. An electronic Exercise Notice must be digitally signed or
authenticated by the Participant in such manner as required by the
notice and transmitted to the Company or an authorized
representative of the Company (including a third-party
administrator designated by the Company). In the event that the
Participant is not authorized or is unable to provide an electronic
Exercise Notice, the Option shall be exercised by a written
Exercise Notice addressed to the Company, which shall be signed by
the Participant and delivered in person, by certified or registered
mail, return receipt requested, by confirmed facsimile
transmission, or by such other means as the Company may permit, to
the Company, or an authorized representative of the Company
(including a third-party administrator designated by the Company).
Each Exercise Notice, whether electronic or written, must state the
Participant’s election to exercise the Option, the number of
whole shares of Stock for which the Option is being exercised and
such other representations and agreements as to the
Participant’s investment intent with respect to such shares
as may be required pursuant to the provisions of this Option
Agreement. Further, each Exercise Notice must be received by the
Company prior to the termination of the Option as set forth in
Section 6 and must be accompanied by full payment of the
aggregate Exercise Price for the number of shares of Stock being
purchased. The Option shall be deemed to be exercised upon receipt
by the Company of such electronic or written Exercise Notice and
the aggregate Exercise Price.
4.3 Payment of Exercise
Price.
(a) Forms of
Consideration Authorized . Except as otherwise
provided below, payment of the aggregate Exercise Price for the
number of shares of Stock for which the Option is being exercised
shall be made (i) in cash, by check or in cash equivalent,
(ii) if permitted by the Company, by tender to the Company, or
attestation to the ownership, of whole shares of Stock owned by the
Participant having a Fair Market Value not less than the aggregate
Exercise Price, (iii) by means of a Cashless Exercise, as
defined in Section 4.3(b), (iv) if permitted by the
Company, by means of a Net-Exercise, or (v) by any combination
of the foregoing.
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(b) Limitations on
Forms of Consideration.
(i) Tender of Stock.
Notwithstanding the foregoing, the Option may not be exercised by
tender to the Company, or attestation to the ownership, of shares
of Stock to the extent such tender or attestation would constitute
a violation of the provisions of any law, regulation or agreement
restricting the redemption of the Company’s stock. If
required by the Company, the Option may not be exercised by tender
to the Company, or attestation to the ownership, of shares of Stock
unless such shares either have been owned by the Participant for
more than six (6) months or such other period, if any,
required by the Company (and not used for another option exercise
by attestation during such period) or were not acquired, directly
or indirectly, from the Company.
(ii) Cashless
Exercise. A “ Cashless Exercise
” means the delivery of a properly executed notice of
exercise together with irrevocable instructions to a broker in a
form acceptable to the Company providing for the assignment to the
Company of the proceeds of a sale or loan with respect to some or
all of the shares of Stock acquired upon the exercise of the Option
pursuant to a program or procedure approved by the Company
(including, without limitation, through an exercise complying with
the provisions of Regulation T as promulgated from time to
time by the Board of Governors of the Federal Reserve System). The
Company reserves, at any and all times, the right, in the
Company’s sole and absolute discretion, to establish, decline
to approve, or terminate any such program or procedure, including
with respect to the Participant notwithstanding that such program
or procedures may be available to others.
4.4 Tax Withholding
. At the time the Option is exercised, in whole or in
part, or at any time thereafter as requested by the Company, the
Participant hereby authorizes withholding from payroll and any
other amounts payable to the Participant, and otherwise agrees to
make adequate provision for (including by means of a Cashless
Exercise to the extent permitted by the Company), any sums required
to satisfy the federal, state, local and foreign tax (including any
social insurance tax) withholding obligations of the Participating
Company Group, if any, which arise in connection with the Option.
The Company shall have no obligation to deliver shares of Stock
until the tax withholding obligations of the Participating Company
Group have been satisfied by the Participant.
4.5 Beneficial Ownership
of Shares; Certificate Registration . The
Participant hereby authorizes the Company, in its sole discretion,
to deposit for the benefit of the Participant with any broker with
which the Participant has an account relationship of which the
Company has notice any or all shares acquired by the Participant
pursuant to the exercise of the Option. Except as provided by the
preceding sentence, a certificate for the shares as to which the
Option is exercised shall be registered in the name of the
Participant, or, if applicable, in the names of the heirs of the
Participant.
4.6 Restrictions on Grant
of the Option and Issuance of Shares . The grant
of the Option and the issuance of shares of Stock upon exercise of
the Option shall be subject to compliance with all applicable
requirements of federal, state or foreign law with respect to such
securities. The Option may not be exercised if the issuance of
shares of Stock upon exercise would constitute a violation of any
applicable federal, state or foreign securities laws or other law
or regulations or the requirements of any stock exchange or market
system upon which the Stock may then be listed. In addition, the
Option may not be exercised unless (i) a registration
statement under the Securities Act shall at the time of exercise of
the Option be in effect with respect to the shares issuable upon
exercise of the Option or (ii) in the opinion of legal counsel
to
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the Company, the shares
issuable upon exercise of the Option may be issued in accordance
with the terms of an applicable exemption from the registration
requirements of the Securities Act. THE PARTICIPANT IS CAUTIONED
THAT THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING
CONDITIONS ARE SATISFIED. ACCORDINGLY, THE PARTICIPANT MAY NOT BE
ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS
VESTED. The inability of the Company to obtain from any regulatory
body having jurisdiction the authority, if any, deemed by the
Company’s legal counsel to be necessary to the lawful
issuance and sale of any shares subject to the Option shall relieve
the Company of any liability in respect of the failure to issue or
sell such shares as to which such requisite authority shall not
have been obtained. As a condition to the exercise of the Option,
the Company may require the Participant to satisfy any
qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested
by the Company.
4.7 Fractional Shares
. The Company shall not be required to issue
fractional shares upon the exercise of the Option.
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5. |
N ONTRANSFERABILITY OF
THE O PTION . |
During the lifetime of the
Participant, the Option shall be exercisable only by the
Participant or the Participant’s guardian or legal
representative. The Option shall not be subject in any manner to
anticipation, alienation, sale, exchange, transfer, assignment,
pledge, encumbrance, or garnishment by creditors of the Participant
or the Participant’s beneficiary, except transfer by will or
by the laws of descent and distribution. Following the death of the
Participant, the Option, to the extent provided in Section 7,
may be exercised by the Participant’s legal representative or
by any person empowered to do so under the deceased
Participant’s will or under the then applicable laws of
descent and distribution.
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6. |
T ERMINATION OF
THE O PTION . |
The Option shall terminate
and may no longer be exercised after the first to occur of
(a) the close of business on the Option Expiration Date,
(b) the close of business on the last date for exercising the
Option following termination of the Participant’s Service as
described in Section 7, or (c) a Change in Control to the
extent provided in Section 8.
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7. |
E FFECT OF T
ERMINATION OF S
ERVICE . |
7.1 Option
Exercisability. The Option shall terminate immediately upon the
Participant’s termination of Service to the extent that it is
then unvested and shall be exercisable after the
Participant’s termination of Service to the extent it is then
vested only during the applicable time period as determined below
and thereafter shall terminate.
(a)
Di
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