EXHIBIT 4.5
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does
hereby grant to Xxxxxx Xxxx (the "Optionee") a nontransferable option to
purchase an aggregate of Seventy Five Thousand (75,000) shares of the
Company's Common Stock (the "Optioned Shares"), without par value, at the
option price set forth in Section 2 below, upon the following terms and
conditions:
1. TERM OF OPTION. Notwithstanding any other Provision of this
Agreement, the option granted hereby and all rights of the Optionee to
purchase the Optioned Shares hereunder shall expire with respect to all of
the Optioned Shares subject hereto on February 29, 2001 (the "Expiration
Date"); provided, however, that this option shall be subject to termination
prior to the Expiration Date in accordance with the provisions of Sections 3
and 4 hereof.
2. EXERCISE PRICE. The exercise price of the option granted hereunder
shall be $0.95 per share, subject to adjustment as follows: (i) for the
first $1,000,000 in Earn Out Payments (as defined in that certain Asset
Purchase Agreement dated as of March 2, 1998 by and among Xxxx Power
Corporation, Oryx Power Products Corporation and Oryx Technology Corp.) paid
to Oryx Power Products Corporation ("OPP"), the exercise price of this option
shall be reduced to $0.80 per share; (ii) for the second $1,000,000 in Earn
Out Payments paid to OPP, the exercise price of this option shall be reduced
to $0.60 per share; (iii) for the third $1,000,000 in Earn Out Payments paid
to OPP, the exercise price of this option shall be reduced to $0.40 per
share; and (iv) for the fourth $1,000,000 in Earn Out Payments paid to OPP,
the exercise price of this option shall be reduced to $0.25 per share. There
shall be no retroactive adjustment of the exercise price of this option nor
shall there be any pro rata adjustment of the exercise price for Earn Out
Payments paid to OPP in amounts less than $1,000,000 increments.
3. EXERCISE SCHEDULE. Subject to the remaining provisions of this
Agreement, the option shall vest and become exercisable in full on May 31,
1999. If the Optionee ceases to be an employee of Xxxx Power Corporation
("Xxxx") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Xxxx) prior to May 31, 1999, the
Optionee's right to exercise this option shall terminate in its entirety upon
such termination of employment. If the Optionee ceases to be an employee of
Xxxx due to termination for other than cause, the Optionee's right to
exercise this option shall vest in its entirety on such termination date and
the Optionee may exercise this option, in whole or in part, at any time prior
to the Expiration Date subject to the provisions of Section 4(c) herein.
4. RIGHTS ON TERMINATION. The Optionee's right to exercise this
option shall be limited as follows:
(a) DEATH. If the Optionee ceases to be an employee of Xxxx
because of the
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Optionee's death, the Optionee's estate shall have the right, for a period of
twelve (12) months following the date of the Optionee's death, to exercise
the option to the extent it was exercisable by the Optionee on the date of
death (but not after the expiration Date). The Optionee's estate shall mean
the Optionee's legal representative upon death or any person who acquires the
right to exercise the option by reason of such death under the Optionee's
will or the laws of intestate succession.
(b) DISABILITY. If the Optionee ceases to be an employee of Xxxx
due to disability, the Optionee or the Optionee's estate may, within twelve
(12) months following such termination (but not after the expiration date),
exercise the option to the extent it was exercisable by the Optionee on the
date of such termination.
(c) OTHER TERMINATION. If the Optionee ceases to be an employee
of Xxxx for any reason other than those provided in subsections (a) or (b)
above, the option shall terminate thirty (30) days from the date the Optionee
ceases to be an employee.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) Subject to any required action by the Company's stockholders,
the number of shares of Common Stock covered by the option granted hereby and
the exercise price thereof shall be proportionately adjusted for any increase
or decrease in the number of issued shares of Common Stock resulting from a
subdivision or consolidation of such shares or the payment of a stock
dividend (but only on the Common Stock) or any other increase or decrease in
the number of such outstanding shares of Common Stock effected without the
receipt of consideration by the Company; provided, however, that the
conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration."
(b) Subject to any required action by the Company's stockholders, if
the Company shall be the surviving corporation in any merger or
consolidation, the option granted hereby shall pertain and apply to the
securities to which a holder of the number of shares subject to the
unexercised portion of this option would have been entitled. A dissolution
or liquidation of the Company or a merger or consolidation involving the
Company in which the Company is not the surviving corporation shall cause
this option to terminate on the effective date of any such event, unless the
surviving corporation in the case of a merger or consolidation assumes
outstanding options or replaces them with substitute options having
substantially similar terms and conditions.
(c) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Company's
Board of Directors ("Board"), whose determination in that respect shall be
final, binding and conclusive. The Company agrees to give notice of any such
adjustment to the Optionee, provided, however, that any such adjustment shall
be effective and binding for all purposes hereof whether or not such notice
is given or received.
(d) Except as hereinabove expressly provided in this Section 5, the
Optionee
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shall have no rights by reason of any subdivision or consolidation of shares
of the capital stock of any class or the payment of any stock dividend or any
other increase or decrease in the number of shares of any class or by reason
of any dissolution, liquidation, merger, or consolidation or spinoff of
assets or stock of another corporation, and any issue by the Company of
shares of stock of any class or of securities convertible into shares of
stock of any class, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number or exercise price of shares subject
to the option granted, hereunder.
(e) The grant of the option hereby shall not affect in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge
or consolidate or to dissolve, liquidate, sell or transfer all or any part of
its business or assets.
6. MANNER OF EXERCISE. The option granted hereby shall be exercised
by the Optionee by giving written notice to the Company, in substantially the
form attached hereto as EXHIBIT A, which notice shall specify the number of
shares of Common Stock which the Optionee elects to purchase. Additionally,
the Optionee shall execute and deliver an Investment Representation Statement
in the form of EXHIBIT B attached hereto. Upon receipt of such notice of
exercise and of payment of the purchase price and any applicable withholding
and employment taxes, the Company shall, as soon as reasonably possible and
subject to all other provisions hereof, deliver certificates for the shares
of Common Stock so purchased, registered in the Optionee's name or in the
name of his legal representative. Payment of the purchase price upon any
exercise of the option granted hereby shall be made by check or in cash.
7. NONTRANSFERABLE. During the lifetime of the Optionee, the option
granted to the Optionee hereunder shall be exercisable only by the Optionee
and shall not be transferable or assignable by the Optionee in whole or in
part other than by will or the laws of descent and distribution. If the
Optionee shall make any purported transfer or assignment of the Optionee's
option hereunder, such assignment shall be null and void and of no force or
effect whatsoever and the Company shall have the right to terminate this
Agreement as of the date of any such purported transfer or assignment.
8. COMPLIANCE WITH SECURITIES AND OTHER LAWS. As a condition to the
exercise in whole or in part of the option granted hereby, each notice of
exercise shall include a representation by the purchaser that such purchaser
intends to acquire the shares of Common Stock specified therein for
investment, for such purchaser's own account and not with a view to, or for
sale in connection with, any distribution of such shares. The Company shall
not be obligated to deliver any shares of Common Stock hereunder for such
period as may reasonably be required for it to comply with any applicable
requirements of (i) the Securities Act of 1933; (ii) the Securities Exchange
Act of 1934; (iii) applicable state securities laws; (iv) any applicable
listing requirement of any stock exchange on which the Company's Common Stock
is then listed; and (v) any other law or regulation applicable to the
issuance of such shares. Shares of Common Stock issued pursuant to exercise
of this option shall include the following legends and such other legends as
in the opinion of the Company's counsel may be required by the securities
laws of any state in which the Optionee resides:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION THEREOF MAY BE
MADE ONLY (i) IN A TRANSACTION REGISTERED UNDER SAID ACT OR (ii) IF AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE AND IS ESTABLISHED TO
THE SATISFACTION OF THE ISSUER.
9. BOARD DETERMINATION. The Optionee hereby agrees to accept as
binding, conclusive and final all decisions and interpretations of the Board
as to any questions arising under this Agreement. This Agreement shall bind
and inure to the benefit of the Company and its successors and assigns, and
the Optionee and the Optionee's estate in the event of death.
10. NOTICES. All notices and other communications of any kind which
either party to this Agreement may be required or may desire to serve on the
other party hereto in connection with this Agreement shall be in writing and
may be delivered by personal service or by registered or certified mail,
return receipt requested, deposited in the United States mail with postage
thereon prepaid, addressed to the parties at the addresses indicated on the
signature page hereof. Service of any such notice or other communication so
made by mail shall be deemed complete on the date of actual delivery as shown
by the addressee's registry or certification receipt or at the expiration of
the third (3rd) business day after the date of mailing, whichever is earlier
in time. Either party may from time to time by notice in writing served upon
the other as aforesaid, designate a different mailing address or a different
person to which such notices or other communications are thereafter to be
addressed or delivered.
11. WITHHOLDING AND EMPLOYMENT TAXES. Upon exercise of any option
granted hereunder, the Optionee shall remit to the Company in cash the amount
of any and all applicable federal and state withholding and employment taxes.
12. INDEPENDENT TAX ADVICE. The Optionee agrees that Optionee has or
will obtain the advice of independent tax counsel regarding the federal and
state income tax consequences of the receipt and exercise of the option
granted hereby and of the disposition of Common Stock acquired upon exercise
hereof. The Optionee acknowledges that he has not relied and will not rely
upon any advice or representations by the Company or by its employees or
representatives with respect to the tax treatment of options granted
hereunder.
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13. MISCELLANEOUS. The interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the State of
California.
DATE OF GRANT: March 1, 1998.
ORYX TECHNOLOGY CORP.
By: /s/Xxxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
AGREED TO AND ACCEPTED:
/s/ Xxxxxx Xxxx
---------------
Print Name:
Address: ___________________
___________________
___________________
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EXHIBIT A
Form of Notice of Exercise of
ORYX TECHNOLOGY CORP. STOCK OPTION
Oryx Technology Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Gentlemen:
I hereby exercise the right to purchase ___________ shares of Common
Stock, without par value, of Oryx Technology Corp., under the terms of the
option granted to me on __________ 1998. This exercise of said option and
the purchase and delivery of said shares shall be subject to all the terms
and conditions of such Nonqualified Stock Option Agreement.
I enclose my check for $___________________ in full payment of the
purchase price of said shares ($_______) and applicable withholding and
employment taxes (($_______). Please register said shares in my name.
OR
I enclose stock certificates evidencing the shares to be used as payment
hereunder, which certificates are duly endorsed or accompanied by duly
executed stock powers transferring them to the Company. I also enclose my
check for applicable withholding employment taxes of ($ ). Please
register said shares in my name.
I hereby represent and agree that I am purchasing the shares for my
own account and not with a view to, or for sale in connection with, any
distribution of the shares, and that I will not sell the shares without
registration under the Securities Act of 1933 or an exemption therefrom and
in compliance with applicable state securities laws.
Dated: , 19_
________________________
(signature)
Name: __________________
(print)
Address: ___________________
___________________
___________________
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EXHIBIT B
INVESTOR REPRESENTATION LETTER
Gentlemen:
In connection with the exercise by me of a stock option to purchase
___________ shares of the Common Stock (the "Shares") of Oryx Technology
Corp. (the "Company"), I hereby represent to you the following:
1. I understand that the Shares are highly speculative and that there can
be no assurance as to what return, if any, there may be on my investment. I
have evaluated the risks of making this investment in the Shares, have
determined that such investment is consistent with my investment objectives,
have the ability to bear the economic risk of such investment and can afford
a complete loss of the purchase price of the Shares.
2. I have made an informed, independent judgment with respect to the
desirability of purchasing the Shares from the Company. I have,
independently and without reliance upon the Company or any representations or
statements made by the Company or its representatives, made. my own analysis
and decision to purchase the Shares. Neither the Company nor any of its
representatives have made any representations or warranties to me, and no
prior or future acts by the Company or its representatives shall be deemed to
constitute representations or warranties by the Company.
3. I am acquiring the Shares for my own account for investment purposes
only and not with a view to, or for resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Act").
4. I understand that the Shares must be held INDEFINITELY unless
subsequently registered under the Act and qualified under applicable state
securities laws or unless an exemption from such registration and
qualification is applicable to any subsequent transfer. I hereby agree that
the Shares will not be sold without registration under the Act and
qualification under applicable state securities laws or exemption therefrom.
I understand that the Company has no present plans for registration or
qualification of the Shares and that it has no obligation to register or to
quality the Shares for any future sale thereof by me.
5. I understand that the certificates evidencing the Shares to be held by
me will bear the legend set forth below and may bear certain additional
legends required under applicable state securities law:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY SALE, TRANSFER, PLEDGE OR
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OTHER DISPOSITION THEREOF MAY BE MADE ONLY (i) IN A TRANSACTION REGISTERED
UNDER SAID ACT, OR (ii) IF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS
AVAILABLE AND IS ESTABLISHED TO THE SATISFACTION OF THE ISSUER.
6. I further understand that there is no market for the Shares and there
may never be a market for the Shares, and that even if a market develops for
the Shares, as a result of the foregoing restrictions on transfer and the
representations and warranties hereunder, I may not be able to sell or
dispose of the Shares, and that I may thus have to bear the risk of my
investment in the Shares for a substantial period of time, or forever.
7. I acknowledge that no one is acting as my representative in this
purchase.
8. I agree that the Company may note upon its stock transfer records a
"stop transfer order" with respect to the Shares in order to enforce the
restrictions on transfer hereinabove described. I understand and agree that
any and all share certificates issued by the Company to me in connection with
the proposed purchase may bear the restrictive legends hereinabove described.
I further agree that the Company shall not be liable for any refusal to
transfer the Shares upon the books of the Company, except in compliance with
the terms and conditions of such restrictions.
9. I agree to indemnify and save and hold harmless the Company, its
successors and assigns, and their officers, directors and controlling
persons, if any, against any loss, claim, damage, liability, cost and expense
arising out of a breach by the undersigned of any of the foregoing
representations, warranties and covenants, whether under the Act, as the same
may be amended from time to time, the securities laws of any state, or
otherwise. Finally, I agree that the terms and conditions of this letter
shall also bind my heirs, assigns and legal representatives.
10. I am a resident of the State of _____________ and am purchasing the
Shares in the State of California.
Executed this ____ day of ________________, 19__.
Employee:
_________________________
(signature)
Name: ___________________
(print)
Address: __________________
__________________
__________________
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