NON-QUALIFIED STOCK OPTION AGREEMENT FOR AUSTRALIAN COMPANY EMPLOYEES UNDER OPTIUM CORPORATION 2006 STOCK OPTION AND INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION
AGREEMENT
FOR AUSTRALIAN COMPANY EMPLOYEES
UNDER OPTIUM CORPORATION
2006 STOCK OPTION AND INCENTIVE PLAN
Pursuant to the Optium Corporation 2006 Stock Option and Incentive Plan as amended through the date hereof (the “Plan”), Optium Corporation (the “Company”) hereby grants to the Optionee named in the applicable Grant Notice an option (the “Stock Option”) to purchase on or prior to the Expiration Date specified in the Grant Notice all or part of the number of shares of Common Stock, par value $0.0001 per share, of the Company (the “Stock”) specified in the Grant Notice at the Option Exercise Price per Share specified in the applicable Grant Notice subject to the terms and conditions set forth herein and in the Plan. This Stock Option is not intended to be an “incentive stock option” under Section 422 of the U.S. Internal Revenue Code of 1986, as amended.
1. Exercisability Schedule. No portion of this Stock Option may be exercised until such portion shall have become exercisable. Except as set forth below, and subject to the discretion of the Committee (as defined in Section 2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the number of Option Shares indicated as vested Option Shares on the dates as set forth on the applicable Grant Notice. Once exercisable, this Stock Option shall continue to be exercisable at any time or times prior to the close of business on the Expiration Date set forth in the applicable Grant Notice, subject to the provisions hereof and of the Plan.
2. Manner of Exercise.
(a) The Optionee may exercise this Stock Option only in the following manner: from time to time on or prior to the Expiration Date of this Stock Option, the Optionee may give written notice to the Committee of his or her election to purchase some or all of the Option Shares purchasable at the time of such notice. This notice shall specify the number of Option Shares to be purchased. The Grant Notice specifies in US dollars, the relevant Option Exercise Price in respect of a Stock Option. Before paying the Option Exercise Price in accordance with this paragraph, the Optionee must contact the Company or its Australian subsidiary to request the relevant Australian dollar equivalent of the Option Exercise Price that is to be applied at the date of exercise. The Company or its subsidiary will provide this information to an Optionee within a reasonable time of the request by the Optionee.
An Optionee cannot exercise this Stock Option unless either a current prospectus is issued by the Company in relation to the Stock Option or the securities the subject of this Stock Option are in the same class as securities that have been quoted on NASDAQ throughout the 12 month period immediately preceding the exercise date of the Stock Option without suspension for more than a total of 2 trading days during that period.
Payment of the Option Exercise Price for the Option Shares may be made by one or more of the following methods: (i) in cash, by certified or bank cheque or other instrument acceptable to
the Committee; (ii) through the delivery (or attestation to the ownership) of shares of Stock that have been purchased by the Optionee on the open market or that are beneficially owned by the Optionee and are not then subject to any restrictions under any Company plan and that otherwise satisfy any holding periods as may be required by the Committee; (iii) by the Optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a cheque payable and acceptable to the Company to pay the option Option Exercise Price, provided that in the event the Optionee chooses to pay the option Option Exercise Price as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure; or (iv) a combination of (i), (ii) and (iii) above. The Optionee may also exercise pursuant to a paperless method if the Company establishes, for itself or using the services of a third party, an automated system, such as a system using an internet website or interactive voice response. Payment instruments will be received subject to collection.
The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon the Company’s receipt from the Optionee of full payment for the Option Shares, as set forth above and any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. In the event the Optionee chooses to pay the Option Exercise Price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to.
(b) The shares of Stock purchased upon exercise of this Stock Option shall be transferred to the Optionee on the records of the Company or of the transfer agent upon compliance to the satisfaction of the Committee with all requirements under applicable laws or regulations in connection with such issuance and with the requirements hereof and of the Plan. The determination of the Committee as to such compliance shall be final and binding on the Optionee. The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company or the transfer agent shall have transferred the shares to the Optionee, and the Optionee’s name shall have been entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock.
(c) The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is being exercised is the total number of shares subject to exercise under this Stock Option at the time.
(d) Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date hereof.
3. Termination of Employment. Subject to paragraph 2(a), if the Optionee’s employment by the Company or a Subsidiary (as defined in the Plan) is terminated, the period
within which to exercise the Stock Option may be subject to earlier termination as set forth below.
(a) Termination Due to Death. Subject to paragraph 2(a), if the Optionee’s employment terminates by reason of the Optionee’s death, any portion of this Stock Option outstanding on such date shall become fully exercisable and may thereafter be exercised by the Optionee’s legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier.
(b) Termination Due to Disability. If the Optionee’s employment terminates by reason of the Optionee’s disability (as determined by the Committee), any portion of this Stock Option outstanding on such date shall become fully exercisable and may thereafter be exercised by the Optionee for a period of 12 months from the date of termination or until the Expiration Date, if earlier. The death of the Optionee during the 12-month period provided in this Section 3(b) shall extend such period for another 12 months from the date of death or until the Expiration Date, if earlier.
(c) Termination for Cause. If the Optionee’s employment terminates for Cause, any portion of this Stock Option outstanding on such date shall terminate immediately and be of no further force and effect. For purposes hereof, “Cause” shall mean a determination by the Company that the Optionee shall be dismissed as a result of (i) any material breach by the Optionee of any agreement between the Optionee and the Company; (ii) the conviction of, indictment for or plea of no contest by the Optionee to a crime; or (iii) any material misconduct or willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionee’s duties to the Company or its subsidiaries.
(d) Other Termination. If the Optionee’s employment terminates for any reason other than the Optionee’s death, the Optionee’s disability or Cause, and unless otherwise determined by the Committee, any portion of this Stock Option outstanding on such date may be exercised, to the extent exercisable on the date of termination, for a period of 90 days from the date of termination or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of termination shall terminate immediately and be of no further force or effect.
The Committee’s determination of the reason for termination of the Optionee’s employment shall be conclusive and binding on the Optionee and his or her representatives or legatees.