Exhibit 10.28
[DATE]
[NAME]
[ADDRESS]
[ADDRESS]
Dear [Mr./Ms.] [OPTIONEE'S LAST NAME]:
On behalf of Tanisys Technology, Inc. (the "Company"), I am pleased to
announce that you (the "Participant") have been awarded, under the terms of
the 1997 Non-Employee Director Plan of Tanisys Technology, Inc. (the "Plan"),
a non-qualified stock option to purchase _______ shares of common stock of
the Company (the "Shares"). The option to acquire the Shares is awarded and
granted upon the following terms and conditions as well as those terms,
conditions, and limitations as set forth in the Plan, which is attached
hereto and incorporated herein for all purposes:
1. The exercise price for each share of common stock is $[OPTION PRICE].
2. For so long as you are a director of the Company, the right to
exercise such option shall vest as follows:
(a) 33-1/3% (_____ shares) on [FIRST ANNIVERSARY DATE OF GRANT];
(b) 33-1/3% (_____ shares) on [SECOND ANNIVERSARY DATE OF GRANT]; AND
(c) 33-1/3% (_____ shares) on [THIRD ANNIVERSARY DATE OF GRANT].
3. Subject to Paragraph 5 herein, the options which have vested in
accordance with the schedule set forth in Paragraph 2 above may be exercised
at any time on or before [EXPIRATION DATE]. No partial exercise of such
option may be for less than 100 full shares. In no event shall the Company
be required to transfer fractional shares to the Participant.
4. The option granted under this Agreement shall be exercisable from
time to time, as provided above, by the payment in cash to the Company of the
purchase price of the shares which the Participant elects to purchase. The
Company shall not be required to transfer or deliver any certificate or
certificates for shares of the Company's common shares purchased upon
exercise of the option granted under this Agreement until all then applicable
requirements of law have been met.
[OPTIONEE'S NAME]
[DATE]
Page Two
5. Subject to the limitations imposed pursuant to Section 7 of the
Plan, the option and all rights granted by this Agreement, to the extent
those rights have not been exercised, will terminate and become null and void
on [EXPIRATION DATE]. If the Participant dies, the person or persons to whom
his vested rights under the option shall pass, whether by will or by the
applicable laws of descent and distribution, may exercise such vested option
to the extent the Participant was entitled to exercise the option on the date
of death, at any time within a period of one year after his death, but not
after [EXPIRATION DATE].
6. During the lifetime of the Participant, the option and all rights
granted in this Agreement shall be exercisable only by the Participant, and
except as Paragraph 5 otherwise provides, the option and all rights granted
under this contract shall not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise), and shall
not be subject to execution, attachment or similar process. Upon any attempt
to transfer, assign, pledge, hypothecate or otherwise dispose of such option
or of such rights contrary to the provisions in this Agreement, or upon the
levy of any attachment or similar process upon such option or such rights,
such option and such rights shall immediately become null and void.
7. Notwithstanding the foregoing, upon the sale of substantially all of
the assets of the Company or change in control of forty percent (40%) of the
outstanding voting shares of the Company, all non-vested options shall
immediately vest.
8. In the event of any change in the common shares of the Company
subject to the option granted hereunder, through merger, consolidation,
reorganization, recapitalization, stock split, stock dividend or other change
in the corporate structure, without consideration, appropriate adjustment
shall be made by the Company in the number of shares subject to such option
and the price per share. Upon the dissolution or liquidation of the Company
other than in connection with a transaction to which such Section is
applicable, the option granted under this Agreement shall terminate and
become null and void, but the Participant shall have the right immediately
prior to such dissolution or liquidation to exercise the option granted
hereunder to the full extent not before exercised.
9. Neither the Participant nor his executor, administrator, heirs or
legatees shall be or have any rights or privileges of a shareholder of the
Company in respect of the shares transferable upon exercise of the option
granted under this Agreement, unless and until certificates representing such
shares shall have been endorsed, transferred and delivered and the transferee
has caused his/her name to be entered as the shareholder of record on the
books of the Company.
10. The Shares underlying your options have been registered with the
Securities and Exchange Commission, and the Shares issued upon the exercise
of your options will be freely tradable, subject, with respect to Shares held
by "affiliates" of the Company, to compliance with Rule 144 of the Securities
and Exchange Commission.
11. The Company does not attempt to advise you on any consequences
arising from your acquisition of the Shares through the exercise of the
option.
[OPTIONEE'S NAME]
[DATE]
Page Three
12. The terms and conditions of the Plan, unless expressly supplemented
by this Agreement, shall continue unchanged and in full force and effect. To
the extent that any terms or provisions of this Agreement are or may be
deemed expressly inconsistent with any terms or conditions of the Plan, the
terms of this Agreement shall control.
13. The Participant hereby agrees to take whatever additional actions
and execute whatever additional documents the Company may in its reasonable
judgment deem necessary or advisable in order to carry out or effect one or
more of the obligations or restrictions imposed on the Participant pursuant
to the express provisions of this Agreement.
14. The rights of the Participant are subject to modification and
termination in certain events as provided in this Agreement and the Plan.
15. This Agreement shall be governed by, and construed in accordance
with, the substantive laws of the State of Delaware applicable to contracts
made and to be wholly performed therein.
16. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
17. This Agreement and the Plan constitute the entire agreement between
the parties with respect to the subject matter hereof, and supersede all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
If the foregoing represents your understanding of the terms and
conditions upon which your options have been granted, please execute in the
space provided below, returning an executed copy to the undersigned.
Sincerely,
Mark C. Holliday
Chairman of the Board and
Chief Executive Officer
AGREED:
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[OPTIONEE'S NAME]