Exhibit 10.15
INCENTIVE STOCK OPTION
AGREEMENT
API NANOTRONICS CORP.
2006 EQUITY INCENTIVE
PLAN
THIS AGREEMENT is dated and made
effective as of May 30, 2008 by and between API NANOTRONICS
CORP., a Delaware corporation (the “ Company ”),
and Thomas W. Mills, Sr. (“ Optionee
”).
WITNESSETH:
WHEREAS, Optionee on the date hereof
is an employee of the Company or one of its Subsidiaries;
and
WHEREAS, the Company desires to
grant an incentive stock option to Optionee to purchase shares of
the Company’s Common Stock pursuant to the Company’s
2006 Equity Incentive Plan, as amended (the “ Plan
”); and
WHEREAS, the Board of Directors of
the Company originally authorized the grant of an incentive stock
option to Optionee on December 26, 2006 (the “
Effective Date ”); and
WHEREAS, the Company and the
Optionee previously agreed as of July 2, 2007 to reprice that
certain Incentive Stock Option Agreement, dated as of the Effective
Date, between the Company and the Optionee; and
WHEREAS, the Company and the
Optionee have agreed to reprice the Incentive Stock Option
Agreement dated July 2, 2007; and
WHEREAS, the Board of Directors of
the Company has determined that, on the date hereof, the Fair
Market Value of Option Stock of the Company is not less than the
exercise price per share provided below.
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Grant of Option .
The Company hereby grants to Optionee as of the date hereof the
right and option (the “ Option ”) to purchase up
to Five Hundred Thousand (500,000) shares of Option Stock
(“ Shares ”) at an exercise price of $0.1005 per
share on the terms and conditions set forth herein and subject to
the terms and conditions of the Plan. This Option is intended to
qualify as an “incentive stock option” within the
meaning of Section 422, or any successor provision, of the
Internal Revenue Code of 1986, as amended (the “ Code
”), and the regulations thereunder.
All capitalized terms not defined in
this Agreement shall have the meaning set forth in the
Plan.
2. Duration and
Exercisability .
a. Vesting/Exercise Period .
The Option shall become exercisable as to portions of the Shares as
follows: (i) the Option shall not be exercisable with respect
to any of the Shares until the first anniversary of the Effective
Date (the “ First Vesting Date ”); (ii) if
Optionee has continuously provided services to the Company or any
Subsidiary from the Effective Date through the First Vesting Date
and has not been Terminated (as hereafter defined) on or before the
First Vesting Date, then on the First Vesting Date the Option shall
become exercisable as to twenty percent (20%) of the Shares;
and (iii) thereafter, provided that Optionee continuously
provides services to the Company or any Subsidiary of the Company
and is not Terminated, upon each of the four successive
anniversaries of the First Vesting Date, the Option shall become
exercisable as to an additional twenty percent (20%) of the
Shares; provided, that the Option shall in no event ever become
exercisable with respect to more than 100% of the Shares. The
Shares vesting under the Option have been limited to the number of
Shares allowed to conform to the $100,000 limit set forth at
Section 9.1(b) of the Plan.
b. Expiration . The Option
shall expire on the tenth anniversary of the Effective Date
(“ Expiration Date ”) and must be exercised, if
at all, on or before the earlier of the Expiration Date and any
date on which the Option terminated in accordance with the
provisions of Section 3.
c. Lapse Upon Expiration . To
the extent that this Option is not exercised prior to the
applicable expiration date set forth in Section 2(b) or
Section 3 of this Agreement, all rights of Optionee under this
Option shall thereupon be forfeited.
3. Termination
.
a. Termination for Any Reason
Other than Death, Disability or a Change of Control . If
Optionee is Terminated for any reason other than his death,
Disability or a Change of Control (both terms as hereafter
defined), this Option shall be exercisable only to the extent the
Option was exercisable on the date of Termination, but had not
previously been exercised, and shall expire on the earlier of
(i) the close of business three months after the Termination
Date (as hereafter defined) and (ii) the Expiration Date.
Notwithstanding the foregoing, if the Optionee is terminated for
Cause, then the Option shall terminate immediately on the
Optionee’s Termination Date.
b. Termination Because of Death
or Disability . If Optionee is Terminated because of his death
or his Disability (or Optionee dies within three (3) months
after a Termination other than because of his Disability or because
of the existence of Cause), then this Option shall be exercisable
by Optionee, or the person or persons to whom Optionee’s
rights under this Option shall have passed by Optionee’s will
or by the laws of descent and distribution, only to the extent the
Option was exercisable on the date of Optionee’s Termination,
but had not previously been exercised, and shall expire on the
earlier of: (i) the close of business six months after
Optionee’s Termination Date and (ii) the Expiration
Date.
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c. Definitions .
“ Termination ”
or “ Terminated ” means that Optionee has for
any reason ceased to provide services as an employee of the Company
or Subsidiary of the Company, except in the case of sick leave,
military leave, or any other leave of absence approved by the
Committee, provided that such leave is for a period of not more
than ninety (90) days, or reinstatement upon the expiration of
such leave is guaranteed by contract or statute. The Committee
shall have sole discretion to determine whether Optionee has ceased
to provide services and the effective date on which Optionee ceased
to provide services (the “ Termination Date
”).
“ Disability ”
means a permanent and total disability within the meaning of
Section 22(e)(3) of the Code (as provided under
Section 422(c)(6), or such applicable successor provision, of
the Code), as determined by the Committee.
“ Cause ” means
that Optionee:
(a) shall have been convicted of any
felony or a crime involving fraud, theft, misappropriation,
dishonesty or embezzlement;
(b) shall have committed intentional
acts that materially impair the goodwill or business of the Company
or any Subsidiary or cause material damage to its property,
goodwill or business; or
(c) shall have failed to perform his
material duties to the Company or any Subsidiary (other than as a
result of a short-term disa
