Date of Award]
Exhibit
10.8
[Date
of Award]
[Name]
[Street]
[City,
State]
Dear
[Name]:
RE:
Employee Stock
Option Award Agreement (“Agreement”)
Exactus, Inc. (the
“Company”) has designated you to be a recipient of a
Non-Qualified Stock Option to purchase shares of the common stock
of the Company, (“Common Stock”), subject to the
employment-based vesting restrictions and other terms set forth in
this Agreement and in the Exactus, Inc. 2016 Equity Incentive Plan
(the “Plan”). Capitalized terms not otherwise defined
herein shall have the meaning set forth in the Plan.
The
grant of this Non-Qualified Stock Option is made pursuant to the
Plan. The Plan is administered by the Administrator (as defined in
the Plan). The terms of the Plan are incorporated into this
Agreement and in the case of any conflict between the Plan and this
Agreement, the terms of the Plan shall control. A copy of the Plan
will be provided to you upon request.
1. Grant.
In consideration of your agreements contained herein, the Company
hereby grants to you a Non-Qualified Stock Option to purchase from
the Company [______] shares of Common Stock at $[____] per share
(the “NSO”). The exercise price of the NSO is equal to
the closing price of the Common Stock on the OTCQB exchange on
[_____________] (the “Grant Date”) or, if the Common
Stock was not so traded on such date, the reported
“closing” price of a shares of Common Stock on the most
recent preceding day on which the Common Stock was so
traded.
2. Vesting.
The grant of the NSO is subject to the following terms and
conditions:
(a) The
NSO with respect to the number of shares set forth below shall
vest, and shall be exercisable, upon your continued employment with
the Company (or any Related Company) through the following Vesting
Dates:
|
Vesting Date
|
Number of shares of Common Stock for which NSO shall become vested
and exercisable on Vesting Date
|
|
December
31, 2017
|
[50%
total shares]
|
|
The
first day of each month during the period beginning on January 1,
2018 and ending December 1, 2020.
|
[1/36th
of remaining 50% of total shares]
|
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(b) Upon
a Change in Control of the Company (as defined in the Plan) the NSO
shall become 100% vested and exercisable to the extent not already
vested and exercisable.
(c) If
you die or become Disabled (as determined by the Committee) while
you are employed by the Company (or any Related Company) and your
employment with the Company (or any Related Company) is terminated
as a result of such death or Disability and you are not otherwise
100% vested in the NSO, the NSO shall be vested with respect to a
number of shares of Common Stock (including the number of shares
with respect to which the NSO is already vested under this
Agreement) equal to the total number of shares listed above in
Section 1 multiplied by a fraction (not to exceed 1), the numerator
of which is the number of full months elapsed from the Grant Date
until the date of your death or Disability, and the denominator of
which is the number of months between the Grant Date and the final
Vesting Date listed in the table in Section 2(a).
(d) Notwithstanding
the foregoing, you must be employed by the Company (or any Related
Company) on the relevant Vesting Date for the NSO to vest. If your
employment with the Company (or any Related Company) terminates for
any reason, any rights you may have under the NSO and this
Agreement with regard to any unvested portion of the NSO and the
shares covered by such unvested portion of the NSO shall be null
and void.
3.
Exercise.
(a) Except
as otherwise stated in this Agreement and in the Plan, the vested
portion of the NSO may be exercised, in whole or in part, from the
respective Vesting Date described above until the earliest of (i)
ten years and one day following the Grant Date, or (ii) the end of
the applicable period set forth in subsection (b) below. Any
portion of the NSO that is not exercised prior to its expiration
shall be forfeited.
(b) Except
as otherwise stated in this section, the NSO may be exercised only
while you are employed by the Company (or any Related Company). The
exercisability of the NSO after you have ceased to be employed by
the Company (or any Related Company) is subject to the following
terms and conditions:
(i)
If your employment
by the Company (or any Related Company) is terminated by you or the
Company (or any Related Company) for any reason other than your
death or Disability, you may exercise any or all of the NSO that is
then fully vested and exercisable within three months after your
employment by the Company (or any Related Company)
terminates.
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(ii)
If you become
Disabled while employed by the Company (or any Related Company),
you may exercise any or all of the NSO that is then fully vested
and exercisable within one year after your employment by the
Company (or any Related Company) terminates on account of
Disability. The Committee shall, in its discretion, determine
whether you are Disabled.
(iii)
If you die while
you are employed by the Company (or any Related Company), the
person to whom your rights under the NSO shall have passed by will
or by the laws of distribution may exercise any or all of the NSO
that is then fully vested and exercisable within one year after
your death.
4.
Payment Under NSO. You may
exercise the vested portion of the NSO in whole or in part, but
only with respect to whole shares of Common Stock. You may make
payment of the NSO price in cash, in shares of Common Stock that
you already own, in any combination of cash and shares of Common
Stock, or by net exercise. If you deliver shares of Common Stock to
make any such payment or make payment by net exercise, the shares
shall be valued at the Fair Market Value (as defined in the Plan)
thereof on the date you exercise the ▇▇▇.
▇. Transferability
of NSO. The NSO is not transferable by you (other than by
will or by the laws of descent and distribution) and, except as
otherwise stated in this Agreement, may be exercised during your
lifetime only by you.
6.
Fractional Shares. A fractional
share of Common Stock will not be issued and any fractional shares
may be disregarded by the Company.
7. Adjustments.
If the number of outstanding shares of Company Stock is increased
or decreased as a result of a stock dividend, stock split or
combination of shares, recapitalization, merger in which the
Company is the surviving corporation, or other change in the
Company's capitalization without the receipt of consideration by
the Company, the number and kind of shares with respect to which
you have an unexercised NSO and the exercise price shall be
proportionately adjusted by the Committee, whose determination
shall be binding.
8. Exercise.
To exercise the NSO, you must deliver to the Corporate Secretary of
the Company written notice stating the number of shares you have
elected to purchase and arrange for payment to the Company as
described in Section 4 above. Notwithstanding the provisions of
Section 9, such notice may be sent to the Corporate Secretary via
e-mail.
9. Notice.
Any notice to be given to the Company under the terms of this
Agreement shall be addressed to the Corporate Secretary at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice to be given to
you shall be addressed to you at the address set forth above or
your last known address at the time notice is sent. Notices shall
be deemed to have been duly given if mailed first class, postage
prepaid, addressed as above.
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10. Applicable
Withholding Taxes. By your acceptance of this Agreement, you
agree to pay to the Company the amount that must be withheld under
federal, state and local income and employment tax laws or to make
arrangements satisfactory to the Company for the payment of such
taxes.
11. Applicable
Securities Laws. You may be required to execute a customary
written indication of your investment intent and such other
agreements the Company deems necessary or appropriate to comply
with applicable securities laws. The Company may delay delivery of
the shares purchased pursuant to the exercise of the NSO until you
have executed such indication or agreements.
12.
Acceptance of NSO. This
Agreement deals only with the NSO you have been granted and not its
exercise. Your acceptance of the NSO, which shall be deemed to take
place when you sign this Agreement, places no obligation or
commitment on you to exercise the NSO. By signing this Agreement,
you indicate your acceptance of the NSO and your agreement to the
terms and conditions set forth in this Agreement, which, together
with the terms of the Plan, shall become the Company’s stock
option agreement with you. You also hereby acknowledge that a copy
of the Plan has been made available and agree to all of the terms
and conditions of the Plan, as it may be amended from time to time.
Unless the Company otherwise agrees in writing, the NSO reflected
in this Agreement will not be exercisable as an Option if you do
not accept this Agreement within thirty days of the Grant
Date.
13.
Binding Effect. This Agreement
shall be binding upon and inure to the benefit of your legatees,
distributees, and personal representatives and the successors of
the Company (or any Related Company. Any references herein to the
Company (or any Related Company) shall include any successor
company to either.
[SIGNATURE PAGE
FOLLOWS]
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IN
WITNESS WHEREOF, the Company has caused this Stock Option Award
Agreement to be signed, as of this _____ date of _______________,
___________.
By:__________________________________
Name:
Its:
Agreed
and Accepted:
________________________________
[Name
of Grant Recipient]
________________________________
[Date]
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