Exhibit 10.10
HOKU SCIENTIFIC,
INC.
2002 STOCK PLAN
(Amended as of December 1,
2004)
NOTICE OF STOCK OPTION
GRANT
[Optionee]
You have been granted an option to
purchase Common Stock of Hoku Scientific, Inc. (the “
Company ”) as follows:
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Board Approval Date:
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_________
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Date of Grant (Later of Board
Approval Date or Commencement of
Employment/Consulting):
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________
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Exercise Price
per Share:
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$________
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Total Number of
Shares Granted:
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________
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Total Exercise
Price:
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$________
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Type of
Option:
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_________ Shares Incentive Stock
Option
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_________ Shares Nonstatutory Stock
Option
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Expiration
Date:
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_________
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Vesting
Commencement Date:
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_________
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Vesting/Exercise Schedule:
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So long as your
full time employment or consulting relationship with the Company
continues, the Shares underlying this Option shall vest and become
exercisable in accordance with the following schedule:
of the Shares subject to the Option shall vest and become
exercisable on the
month anniversary of the Vesting Commencement Date and
of the
total number of Shares subject to the Option shall vest and become
exercisable each month thereafter.
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Termination
Period:
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This Option may
be exercised for __ days after termination of employment or
consulting relationship except as set out in Section 5 of the Stock
Option Agreement (but in no event later than the Expiration Date).
Optionee is responsible for keeping track of these exercise periods
following termination for any reason of his or her service
relationship with the Company. The Company will not provide further
notice of such periods.
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Transferability:
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This Option may
not be transferred.
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By your signature and the signature
of the Company’s representative below, you and the Company
agree that this option is granted under and governed by the terms
and conditions of the Hoku Scientific, Inc. 2002 Stock Plan and the
Stock Option Agreement, both of which are attached and made a part
of this document.
In addition, you agree and
acknowledge that your rights to any Shares underlying the Option
will be earned only as you provide services to the Company over
time, that the grant of the Option is not as consideration for
services you rendered to the Company prior to your Vesting
Commencement Date, and that nothing in this Notice or the attached
documents confers upon you any right to continue your employment or
consulting relationship with the Company for any period of time,
nor does it interfere in any way with your right or the
Company’s right to terminate that relationship at any time,
for any reason, with or without cause.
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HOKU
SCIENTIFIC, INC.
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By:
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[Optionee]
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Name:
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Title:
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HOKU SCIENTIFIC,
INC.
2002 STOCK PLAN
STOCK OPTION
AGREEMENT
1. Grant of Option .
Hoku Scientific, Inc., a Delaware corporation (the “
Compan y”), hereby grants to
(“ Optionee ”), an option (the “
Option ”) to purchase the total number of shares of
Common Stock (the “ Shares ”) set forth in the
Notice of Stock Option Grant (the “ Notice ”),
at the exercise price per Share set forth in the Notice (the
“ Exercise Price ”) subject to the terms,
definitions and provisions of the Hoku Scientific, Inc. 2002 Stock
Plan (the “ Plan ”) adopted by the Company,
which is incorporated in this Agreement by reference. Unless
otherwise defined in this Agreement, the terms used in this
Agreement shall have the meanings defined in the Plan.
2. Designation of Option
. This Option is intended to be an Incentive Stock Option as
defined in Section 422 of the Code only to the extent so designated
in the Notice, and to the extent it is not so designated or to the
extent the Option does not qualify as an Incentive Stock Option, it
is intended to be a Nonstatutory Stock Option.
Notwithstanding the above, if
designated as an Incentive Stock Option, in the event that the
Shares subject to this Option (and all other Incentive Stock
Options granted to Optionee by the Company or any Parent or
Subsidiary, including under other plans of the Company) that first
become exercisable in any calendar year have an aggregate fair
market value (determined for each Share as of the date of grant of
the option covering such Share) in excess of $100,000, the Shares
in excess of $100,000 shall be treated as subject to a Nonstatutory
Stock Option, in accordance with Section 5(c) of the
Plan.
3. Exercise of Option
. This Option shall be exercisable during its term in
accordance with the Vesting/Exercise Schedule set out in the Notice
and with the provisions of Section 10 of the Plan as
follows:
(a) Right to Exercise
.
(i) This Option may not be exercised
for a fraction of a share.
(ii) In the event of
Optionee’s death, disability or other termination of
employment, the exercisability of the Option is governed by Section
5 below, subject to the limitations contained in this Section
3.
(iii) In no event may this Option be
exercised after the Expiration Date of the Option as set forth in
the Notice.
-3-
(b) Method of Exercise
.
(i) This Option shall be exercisable
by execution and delivery of the Exercise Notice and Restricted
Stock Purchase Agreement attached hereto as Exhibit A (the
“ Exercise Agreement ”) or of any other form of
written notice approved for such purpose by the Company which shall
state Optionee’s election to exercise the Option, the number
of Shares in respect of which the Option is being exercised, and
such other representations and agreements as to the holder’s
investment intent with respect to such Shares as may be required by
the Company pursuant to the provisions of the Plan. Such written
notice shall be signed by Optionee and shall be delivered to the
Company by such means as are determined by the Plan Administrator
in its discretion to constitute adequate delivery. The written
notice shall be accompanied by payment of the Exercise Price. This
Option shall be deemed to be exercised upon receipt by the Company
of such written notice accompanied by the Exercise
Price.
(ii) As a condition to the exercise
of this Option and as further set forth in Section 12 of the Plan,
Optionee agrees to make adequate provision for federal, state or
other tax withholding obligations, if any, which arise upon the
vesting or exercise of the Option, or disposition of Shares,
whether by withholding, direct payment to the Company, or
otherwise.
(iii) The Company is not obligated,
and will have no liability for failure, to issue or deliver any
Shares upon exercise of the Option unless such issuance or delivery
would comply with the Applicable Laws, with such compliance
determined by the Company in consultation with its legal counsel.
This Option may not be exercised until such time as the Plan has
been approved by the stockholders of the Company, or if the
issuance of such Shares upon such exercise or the method of payment
of consideration for such shares would constitute a violation of
any applicable federal or state securities or other law or
regulation, including any rule under Part 221 of Title 12 of the
Code of Federal Regulations as promulgated by the Federal Reserve
Board. As a condition to the exercise of this Option, the Company
may require Optionee to make any representation and warranty to the
Company as may be required by the Applicable Laws. Assuming such
compliance, for income tax purposes the Shares shall be considered
transferred to Optionee on the date on which the Option is
exercised with respect to such Shares.
4. Method of Payment .
Payment of the Exercise Price shall be by any of the following, or
a combination of the following, at the election of
Optionee:
(a) cash or check;
(b) prior to the date, if any, upon
which the Common Stock becomes a Listed Security, by surrender of
other shares of Common Stock of the Company that have an aggregate
Fair Market Value on the date of surrender equal to the Exercise
Price of the Shares as to which the Option is being exercised. In
the case of shares acquired directly or indirectly from the
Company, such shares must have been owned by Optionee for more than
six (6) months on the date of surrender (or such other period of
time as is necessary to avoid the Company’s incurring adverse
accounting charges); or
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(c) following the date, if any, upon
which the Common Stock is a Listed Security, delivery of a properly
executed exercise notice together with irrevocable instructions to
a broker approved by the Company to deliver promptly to the Company
the amount of sale or loan proceeds required to pay the exercise
price.
5. Termination of
Relationship . Following the date of termination of
Optionee’s Continuous Service Status for any reason (the
“ Termination Date ”), Optionee may exercise the
Option only as set forth in the Notice and this Section 5. To the
extent that Optionee is not vested in the Optioned Stock as of the
Termination Date, or if Optionee (or other person entitled to
exercise the Option) does not exercise this Option within the
Termination Period set forth in the Notice or the termination
periods set forth below, the Option shall terminate in its
entirety. In no event, may any Option be exercised after the
Expiration Date of the Option as set forth in the
Notice.
(a) Termination . In
the event of termination of Optionee’s Continuous Service
Status other than as a result of Optionee’s disability or
death, Optionee may, to the extent Optionee is vested in the
Optioned Stock as of the Termination Date, exercise this Option
during the Termination Period set forth in the Notice.
(b) Other Terminations
. In connection with any termination other than a termination
covered by Section 5(a), Optionee may exercise the Option only as
described below:
(i) Termination upon
Disability of Optionee . In the event of termination of
Optionee’s Continuous Service Status as a result of
Optionee’s disability, Optionee may, to the extent Optionee
was vested in the Optioned Stock as of such Termination Date,
exercise this Option at any time within six months from the
Termination Date.
(ii) Death of Optionee
. In the event of the death of Optionee (A) during the term of
this Option and while an Employee or Consultant of the Company and
having been in Continuous Service Status since the date of grant of
the Option, or (B) within thirty (30) days after Optionee’s
Termination Date, to the extent Optionee was vested in the Optioned
Stock as of the Termination Date, the Option may be exercised at
any time within six months following the date of death by
Optionee’s estate or by a person who acquired the right to
exercise the Option by bequest or inheritance.
6. Non-Transferability of
Option . This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by him or
her. The terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of
Optionee.
7. Tax Consequences .
Below is a brief summary as of the date of this Option of certain
of the federal tax consequences of exercise of this Option and
disposition of the Shares under the laws in effect as of the Date
of Grant. THIS SUMMARY IS INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX
ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
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(a) Incentive Stock Option
.
(i) Tax Treatment upon
Exercise and Sale of Shares . If this Option qualifies as
an Incentive Stock Option, there will be no regular federal income
tax liability upon the exercise of the Option, although the excess,
if any, of the fair market value of the Shares on the date of
exercise over the Exercise Price will be treated as an adjustment
to the alternative minimum tax for federal tax purposes and may
subject Optionee to the alternative minimum tax in the year of
exercise. If Shares issued upon exercise of an Incentive Stock
Option are held for at least one year after exercise and are
disposed of at least two years after the Option grant date, any
gain realized on disposition of the Shares will also be treated as
long-term capital gain for federal income tax purposes. If Shares
issued upon exercise of an Incentive Stock Option are disposed of
within such one-year period or within two years after the Option
grant date, any gain realized on such disposition will be treated
as compensation income (taxable at ordinary income rates) to the
extent of the difference between the Exercise Price and the lesser
of (i) the fair market value of the Shares on the date of exercise,
or (ii) the sale price of the Shares.
(ii) Notice of Disqualifying
Dispositions . With respect to any Shares issued upon
exercise of an Incentive Stock Option, if Optionee sells or
otherwise disposes of such Shares on or before the later of (i) the
date two years after the Option grant date, or (ii) the date one
year after the date of exercise, Optionee shall immediately notify
the Company in writing of such disposition. Optionee acknowledges
and agrees that he or she may be subject to income tax withholding
by the Company on the compensation income recognized by Optionee
from the early disposition by payment in cash or out of the current
earnings paid to Optionee.
(b) Nonstatutory Stock
Option . If this Option does not qualify as an Incentive
Stock Option, there may be a regular federal (and state) income tax
liability upon the exercise of the Option. Optionee will be treated
as having received compensation income (taxable at ordinary income
tax rates) equal to the excess, if any, of the fair market value of
the Shares on the date of exercise over the Exercise Price. If
Optionee is an Employee, the Company will be required to withhold
from Optionee’s compensation or collect from Optionee and pay
to the applicable taxing authorities an amount equal to a
percentage of this compensation income at the time of exercise. If
Shares issued upon exercise of a Nonstatutory Stock Option are held
for at least one year, any gain realized on disposition of the
Shares will be treated as long-term capital gain for federal income
tax purposes.
8. Lock-Up Agreement .
In connection with the initial public offering of the
Company’s securities and upon request of the Company or the
underwriters managing any underwritten offering of the
Company’s securities, Optionee hereby agrees not to sell,
make any short sale of, loan, gran