NONQUALIFIED STOCK OPTION
AGREEMENT
FOR
QUIKBYTE SOFTWARE, INC.
1.
Grant of Option . QuikByte Software, Inc. (the
“ Company ”) hereby grants, as of
September 18, 2009 (“ Date of Grant ”), to
(the “ Optionee ”) an option (the “
Option ”) to purchase up to 40,000 shares of the
Company’s common stock, $0.0001 par value per share (the
“ Shares ”), at an exercise price per share
equal to $0.0448 (the “ Exercise Price ”). The
Option shall be subject to the terms and conditions set forth
herein. The Option is a nonqualified stock option, and not an
incentive stock option under Section 422 of the Internal Revenue
Code of 1986, as amended.
(a) Except
as otherwise provided in this Section 2 and Sections 5 or
10 of this Agreement, the Option is exercisable as provided below.
To the extent that the Option has become exercisable as provided
below, the Option may thereafter be exercised by the Optionee, in
whole or in part, at any time or from time to time prior to the
expiration of the Option as provided herein. The following table
indicates each date (the “ !Vesting Date ”) upon
which the Optionee shall be entitled to exercise the Option with
respect to the Shares granted as indicated beside the date,
provided that the Continuous Service of the Optionee continues
through and on the applicable Vesting Date:
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Percentage of Shares
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Vesting Date
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100%
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September 18, 2010
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Except as
otherwise specifically provided herein, there shall be no
proportionate or partial vesting in the periods prior to the
Vesting Date, and all vesting shall occur only on the appropriate
Vesting Date.
Notwithstanding
anything to the foregoing in this Section 2(a), including the
Vesting Date, the Option shall not be exercisable, in whole or in
part, until the two year anniversary of the Date of Grant, except
as provided in Section 10(b)(i) of this Agreement.
(b) For
purposes of this Agreement, the following terms shall have the
meanings indicated:
(i) “
Board ” shall mean the Board of Directors of
the Company.
(ii) “
Continuous Service ” shall mean the continuous
service to the Company or a Related Entity, without interruption,
of the Optionee, in the Optionee’s capacity as a Director of
the Company. Continuous Service shall not be considered interrupted
(or to have ceased or terminated) in the case of transfers among
the Company, any Related Entity, or any successor thereto, so long
as the Optionee continues in his capacity as a Director thereof
.
(iii) “
Director ” shall mean a member of the Board or
the board of directors of any Related Entity.
(iv)
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended from time to time, including rules
thereunder and successor provisions and rules thereto.
(v)
“Related Entity” shall mean any
Subsidiary, and any business, corporation, partnership, limited
liability company, or other entity in which the Company, or a
Subsidiary holds a substantial ownership interest, directly or
indirectly.
(vi)
“Subsidiary” shall mean any corporation
or other entity in which the Company has a direct or indirect
ownership interest of 50% or more of the total combined voting
power of the then outstanding securities or interests of such
corporation or other entity entitled to vote generally in the
election of directors or in which the Company has the right to
receive 50% or more of the distribution of profits or 50% or more
of the assets on liquidation or dissolution.
3.
Method of Exercise . The vested portion of this
Option shall be exercisable in whole or in part in accordance with
the exercise schedule set forth in Section 2 hereof by written
notice which shall state the 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. Such written notice shall be signed by
the Optionee and shall be delivered in person or by certified mail
to the Secretary of the Company. The written notice shall be
accompanied by payment of the Exercise Price. This Option shall be
deemed to be exercised after both (a) receipt by the Company
of such written notice accompanied by the Exercise Price, and
(b) arrangements that are satisfactory to the Company in its
sole discretion have been made for Optionee’s payment to the
Company of the amount that is necessary to be withheld in
accordance with applicable Federal or state withholding
requirements. No Shares shall be issued pursuant to the Option
unless and until such issuance and such exercise shall comply with
all relevant provisions of applicable law, including the
requirements of any stock exchange upon which the Shares then may
be traded.
4.
Method of Payment . Payment of the Exercise Price
shall be by any of the following, or a combination thereof, at the
election of the Optionee: (a) cash; (b) check;
(c) to the extent permitted by the Company, with Shares owned
by the Optionee, or the withholding of Shares that otherwise would
be delivered to the Optionee as a result of the exercise of the
Option, (d) pursuant to a “cashless exercise”
procedure, by delivery of a properly executed exercise notice
together with such other documentation, and subject to such
guidelines, as the Company shall require to effect an exercise of
the Option and delivery to the Company by a licensed broker
acceptable to the Company of proceeds from the sale of Shares or a
margin loan sufficient to pay the Exercise Price and any applicable
income or employment taxes or (e) such other consideration or
in such other manner as may be determined by the Company in its
absolute discretion.
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5.
Termination of Option . Any 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:
(a) if,
prior to the Vesting Date, the Optionee’s Continuous Service
is terminated for any reason, the date on which the
Optionee’s Continuous Service is terminated, unless the
Company otherwise determines in writing in its sole discretion to
waive the termination of such Option;
(b) the
tenth anniversary of the date as of which the Option is granted;
or
(c) the
liquidation or dissolution of the Company.
6.
Restrictions While Stock is Not
Registered.
(a)
Restricted Shares . Any Shares acquired upon exercise
of the Option specified in Section 1 and (i) all shares
of the Company’s capital stock received as a dividend or
other distribution upon such shares and (ii) all shares of
capital stock or other securities of the Company into which such
shares may be changed or for which such shares shall be exchanged,
whether through reorganization, recapitalization, stock split-ups
or the like, shall be subject to the provisions of this
Section 6 at all times, and only at those times, that Shares
are not registered under the Exchange Act (such times during which
the Stock is not so registered sometimes hereinafter being referred
to as the “ Restricted Period ”) and are during
the Restricted Period hereinafter referred to as “Restricted
Shares.”
(b)
No Sale or Pledge of Restricted Securities . Except
as otherwise provided herein, the Optionee agrees and covenants
that during the Restricted Period he or she shall not sell, pledge,
encumber or otherwise transfer or dispose of, and shall not permit
to be sold, encumbered, attached or otherwise disposed of or
transferred in any manner, either voluntarily or by operation of
law (all hereinafter collectively referred to as “
transfers ”), all or any portion of the Restricted
Securities or any interest therein unless such transfer is pursuant
to an effective registration statement under the Securities Act of
1933, as amended, or an applicable exemption from registration
thereunder.
(c)
Legends . The certificate or certificates
representing any Restricted Securities acquired pursuant to the
exercise of this Option prior to the last day of the Restricted
Period shall bear the following legends (as well as any legends
required by applicable state and federal corporate and securities
laws):
THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS IN COMPLIANCE THEREWITH.
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THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFER AS SET FORTH IN A NONQUALIFIED STOCK OPTION AGREEMENT
BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY
OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.
SUCH TRANSFER RESTRICTIONS RIGHTS ARE BINDING ON TRANSFEREES OF
THESE SHARES.
7.
Transferability . Unless otherwise determined by the
Company, the Option granted hereby is not transferable otherwise
than by will or under the applicable laws of descent and
distribution, and during the lifetime of the Optionee the Option
shall be exercisable only by the Optionee, or the Optionee’s
guardian or legal representative. In addition, the Option shall not
be assigned, negotiated, pledged or hypothecated in any way
(whether by operation of law or otherwise), and the Option shall
not be subject to execution, attachment or similar process. Upon
any attempt to transfer, assign, negotiate, pledge or hypothecate
the Option, or in the event of any levy upon th
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