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Exhibit 10.53
STOCK OPTION AGREEMENT
OF
RIM SEMICONDUCTOR COMPANY
STOCK OPTION AGREEMENT (this "Agreement") entered into as of the
31st
day of August, 2006, between RIM SEMICONDUCTOR COMPANY, a Utah
corporation (the
"Corporation"), and DAVID WOJCIK (the "Optionee," which term as
used herein
shall be deemed to include any successor to the Optionee by will or
by the laws
of descent and distribution, unless the context shall otherwise
require).
The Board of Directors of the Corporation approved the issuance to
the
Optionee, effective as of the date set forth above, of a
nonqualified stock
option to purchase up to an aggregate of 3,500,000 shares of the
common stock,
par value $.001 per share, of the Corporation (the "Common Stock"),
at an
exercise price of $0.158 per share (the "Option Price"), upon the
terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as
follows:
1. OPTION; OPTION PRICE. The Board of Directors hereby grants as of
the
date of this Agreement to the Optionee the option (the "Option") to
purchase,
subject to the terms and conditions of this Agreement 3,500,000
shares of the
Common Stock of the Corporation at an exercise price per share
equal to the
Option Price.
2. TERM. The term (the "Option Term") of the Option shall commence
on
the date of this Agreement and shall terminate on August 31, 2016
unless such
Option shall theretofore have been terminated in accordance with
the terms
hereof.
3. VESTING.
(a) Subject to the provisions of Sections 5 and 8 hereof, the
Option
shall vest and become exercisable in 32 installments as described
in this
Section, provided that the Option has not earlier terminated as
provided in
Section 4 hereof. Subject to the foregoing, the first two such
installments
shall vest the Option with respect to 291,670 shares each on
December 1, 2006
and March 1, 2007, respectively, and the remainder of the Option
shall vest in
30 equal installments of 97,222 shares each on the first of each
month
commencing April 1, 2007.
(b) Notwithstanding the provisions of Section 3(a) hereof, the
Option
shall become fully vested and shall become immediately exercisable
with respect
to all shares subject to the Option, subject to the provisions
hereof,
immediately following a Change of Control (as hereinafter defined)
of the
Corporation. For purposes of this Agreement and the Option, a
"Change of
Control" shall have occurred if (i) the Corporation is merged or
consolidated or
reorganized into or with another corporation, and as result of such
merger,
consolidation, or reorganization, (A) less than a majority of the
combined
voting power of the then-outstanding securities of such corporation
or entity
immediately after such transaction is held in the aggregate by the
holders of
Voting Stock (as hereafter defined) of the Corporation immediately
prior to such
transaction, or (B) the holder of Voting Stock of the Corporation
immediately
prior to such transaction hold such securities in substantially
different
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proportions as the Voting Stock was held immediately prior to such
transaction
and, as a result of such transaction, one holder acquires a
majority of the
combined voting power of the then-outstanding securities; (ii) the
Corporation
sells or otherwise transfers all or substantially all of its assets
to any other
corporation or legal person in which (A) less than a majority of
the combined
voting power of the then-outstanding securities of such corporation
or legal
person immediately after such sale or transfer is held in the
aggregate by the
holders of the Voting Stock of the Corporation immediately prior to
such sale or
transfer, or (B) the combined voting power of the then-outstanding
securities of
such corporation or legal person immediately after such sale or
transfer is held
in substantially different proportions as the Voting Stock was held
immediately
prior to such transaction and, as a result of such transaction, one
holder
acquires a majority of the combined voting power of the
then-outstanding
securities, (iii) if during any period of twenty-four (24) months
following a
merger, tender offer, consolidation, sale of a majority of the
Voting Stock in
one transaction (or a series of related transactions), sale of
assets, or
contested election, at least a majority of the Board of Directors
of the
Corporation shall cease to be "Continuing Directors." For purposes
of this
Section 3(b), "Continuing Directors" shall mean directors of the
Corporation
prior to such transaction or who subsequently became directors and
whose
election or nomination for election by the stockholders of the
Corporation was
approved by a vote of at least two-thirds (2/3) of the directors
then still in
office prior to such transaction. The term "Voting Stock" shall
mean, for
purposes of this Section 3(b), the then-outstanding securities
entitled to vote
generally in the election of directors of the Corporation.
(c) [NOTWITHSTANDING THE PROVISIONS OF SECTION 3(A) HEREOF, THE
OPTION
SHALL BECOME FULLY VESTED AND SHALL BECOME IMMEDIATELY EXERCISABLE
WITH RESPECT
TO ALL SHARES SUBJECT TO THE OPTION, SUBJECT TO THE PROVISIONS
HEREOF,
IMMEDIATELY FOLLOWING THE TERMINATION BY THE CORPORATION OF
OPTIONEE'S
EMPLOYMENT WITHOUT "GOOD CAUSE" (AS DEFINED IN THE EMPLOYMENT
AGREEMENT, DATED
THE DATE HEREOF, BETWEEN THE CORPORATION AND OPTIONEE) OR
OPTIONEE'S RESIGNATION
FROM EMPLOYMENT WITH THE CORPORATION FOR "GOOD REASON" (AS DEFINED
IN HIS
EMPLOYMENT AGREEMENT).]
(d) Subject to the provisions of Sections 5 and 8 hereof, the
shares as
to which the Option is exercisable may be purchased at any time
prior to the
expiration or termination of the Option.
4. TERMINATION OF OPTION.
(a) The unexercised portion of the Option shall automatically
and
without notice terminate and become null and void at the time of
the earliest to
occur of the following:
(i) thirty (30) days after the date that the Optionee ceases
to be an employee of the Corporation regardless of the reason
therefor
other than as a result of death or Permanent Disability of
Optionee;
(ii) three (3) months after the date that Optionee ceases to
be an employee of the Corporation by reason of death or
Permanent
Disability of Optionee, the termination by the Corporation of
Optionee's employment without "Good Cause" or Optionee's
resignation
from employment with the Corporation for "Good Reason"; or
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(iii) the expiration date of the term of the Option.
(b) "Permanent Disability" means that Optionee becomes physically
or
mentally incapacitated or disabled so that Optionee is unable
to
perform substantially the same services as Optionee performed prior
to
incurring such incapacity or disability (the Corporation, at its
option
and expense, being entitled to retain a physician to confirm
the
existence of such incapacity or disability, and the determination
of
such physician to be binding upon the Corporation and Optionee),
and
such incapacity or disability continues for a period of three
consecutive months or six months in any 12-month period or such
other
period(s) as may be determined by the Board of Directors.
5.
PROCEDURE FOR EXERCISE.
(a) Subject to the requirements of Section 8, the Option may be
exercised, from time to time, in whole or in part (but for the
purchase of a
whole number of shares only), by delivery of a written notice (the
"Notice")
from the Optionee to the Secretary of the Corporation, which Notice
shall:
(i) state that the Optionee elects to exercise the Option;
(ii) state the number of shares with respect to which the
Option is being exercised (the "Optioned Shares");
(iii) state the date upon which the Optionee desires to
consummate the purchase of the Optioned Shares (which date must
be
prior to the termination of such Option and no later than thirty
(30)
days after the date of receipt of such Notice);
(iv) include any representations of the Optionee required
under Section 8(c); and
(v) if the Option shall be exercised pursuant to Section 9 by
any person other than the Optionee, include evidence to the
satisfaction of the Board of Directors of the right of such person
to
exercise the Option.
(b) Payment of the Option Price for the Optioned Shares shall be
made
(i) in U.S. dollars by personal or company check, bank draft or
money order
payable to the order of the Corporation or by wire transfer, (ii)
by converting
all or part of the Option into Optioned Shares pursuant to Section
5(d) hereof,
or (iii) by delivery of such other consideration as the Board of
Directors may
deem acceptable.
(c) The Corporation shall issue a stock certificate in the name of
the
Optionee (or such other person exercising the Option in accordance
with the
provisions of Section 9) for the Optioned Shares as soon as
practicable after
receipt of the Notice and payment of the aggregate Option Price for
such shares
under Section 5(b)(i) or (iii).
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(d) If Optionee makes the election under Section 5(b)(ii) in
the
Notice, the Corporation shall issue a stock certificate in the name
of the
Optionee (or such other person exercising the Option in accordance
with the
provisions of Section 9) (without payment by such person or any
cash or other
consideration) for that number of Optioned Shares equal to the
DIFFERENCE of (i)
the total number of Optioned Shares into which the Option is
exercised MINUS
(ii) that number of Optioned Shares having an aggregate Spread (as
defined
herein) equal to the aggregate Option Price due for the Optioned
Shares into
which the Option is then being exercise. For purposes of this
Section 2,
"SPREAD" shall be the difference, as of the date of exercise,
between the Option
Price and the fair market value of an Option Share, multiplied by
the applicable
number of Optioned Shares.
6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall have no rights as
a
stockholder of the Corporation with respect to any Optioned Shares
until the
date the Optionee or, if Optionee is a natural person, his nominee
(which, for
purposes of this Agreement, shall include any third party agent
selected by the
Board of Directors to hold such Optioned Shares on behalf of the
Optionee),
guardian or legal representative is the holder of record of such
Optioned
Shares.
7. ADJUSTMENTS.
(a) If at any time while the Option is outstanding, there shall be
any
increase or decrease in the number of issued and outstanding shares
of Common
Stock through the declaration of a stock dividend, stock split,
combination of
shares or through any recapitalization resulting in a stock
split-up, spin-o
