EXHIBIT 10.2
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
("Agreement") is entered into as of September 30, 1996, by and between RADIANT
TECHNOLOGY CORPORATION, a Delaware corporation ("Corporation"), and
___________________ ("Optionee").
A G R E E M E N T
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It is hereby agreed as follows:
1. GRANT OF OPTIONS. The Corporation hereby grants to Optionee, options
("Options") to purchase all or any part of Twenty Thousand (20,000) shares of
the common stock of the Corporation ("Shares"), upon and subject to the terms
and conditions set forth herein.
2. OPTION PERIOD. The Options shall be exercisable at any time during
the period commencing on the following dates (subject to the provisions of
Section 10) and expiring on the date three (3) years from the date of the
Options first become exercisable, unless earlier terminated pursuant to Section
7:
Number of Options Exercisable Effective
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10,000 September 30, 1996
10,000 September 30, 1997
3. METHOD OF EXERCISE. The Options shall be exercisable by Optionee by
giving written notice to the Corporation of the election to purchase and of the
number of Shares Optionee elects to purchase, such notice to be accompanied by
such other executed instruments or documents as may be required by the
Corporation pursuant to this Agreement. At the time of such exercise, Optionee
shall also tender the purchase price of the Shares Optionee has elected to
purchase as required by Section 5 below. Optionee may purchase less than the
total number of Shares for which the Option is exercisable, provided that a
partial exercise of an Option may not be for less than One Hundred (100) Shares.
If Optionee does not purchase all of the Shares which Optionee is entitled to
purchase under the Options, Optionee's right to purchase the remaining
unpurchased Shares shall continue until expiration of the Options. The Options
shall be exercisable with respect to whole Shares only, and fractional share
interests shall be disregarded.
4. AMOUNT OF PURCHASE PRICE. The purchase price per Share for each
Share which Optionee is entitled to purchase under the Options shall be $.48 per
Share, which is one hundred percent (100%) of the fair market value per share on
the date of the grant of the Options as determined in good faith by the Board of
Directors of the Corporation.
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5. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or bank
cashier's check payable to the Corporation, the purchase price for all Shares
then being purchased.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. As used herein, the term
"Adjustment Event" means an event pursuant to which the outstanding Shares of
the Corporation are increased, decreased or changed into, or exchanged for a
different number or kind of shares or securities, without receipt of
consideration by the Corporation, through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an Adjustment
Event, (i) appropriate and proportionate adjustments shall be made to the number
and kind and exercise price for the shares subject to the Options, and (ii)
appropriate amendments to this Agreement shall be executed by the Corporation
and Optionee if the Corporation determines that such an amendment is necessary
or desirable to reflect such adjustments. The determination by the Corporation
as to what adjustments, amendments or arrangements shall be made pursuant to
this Section 6, and the extent thereof, shall be final and conclusive. No
fractional Shares shall be issued on account of any such adjustment or
arrangement.
7. NO RIGHTS TO CONTINUED RELATIONSHIP. Nothing contained in this
Agreement shall obligate the Corporation to have any relationship with Optionee
for any period or interfere in any way with the right of the Corporation to
terminate the relationship with Optionee at any time. If the Optionee ceases to
be a director of the Corporation, the Options shall expire not later than three
(3) months thereafter. During such three (3) month period and prior to the
expiration of the Options by their terms, the Optionee may exercise the Options
granted to him, but only to the extent such Options were exercisable on the date
he ceased to be a director of the Corporation and except as so exercised, such
Options shall expire at the end of such three (3) month period unless such
Options by their terms expire before such date.
8. TIME OF GRANTING OPTIONS. The time the Options shall be deemed
granted, sometimes referred to herein as the "date of grant," shall be September
30, 1996.
9. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled to the
privileges of stock ownership as to any Shares not actually issued and delivered
to Optionee. No Shares shall be purchased upon the exercise of any Options
unless and until, in the opinion of the Corporation's counsel, any then
applicable requirements of any laws, or governmental or regulatory agencies
having jurisdiction, and of any exchanges upon which the stock of the
Corporation may be listed shall have been fully complied with.
10. SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any stock is
issued pursuant to the Options. Without limiting the generality of the
foregoing, the Corporation may require from the Optionee such investment
representation or such agreement, if any, as counsel for the Corporation may
consider necessary in order to comply with the Securities Act of 1933 as then in
effect, and may require that the Optionee agree that any sale of the Shares will
be made only in such manner as is permitted by the Corporation. If the
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Corporation, in its sole discretion, registers that Shares underlying the
Options under the Securities Act of 1933 by filing a Form S-8 Registration
Statement (or other applicable form) covering the Options and the Shares
underlying the Options, Optionee shall take any action reasonably requested by
the Corporation in connection with registration or qualification of the Shares
under federal or state securities laws.
11. SHARES SUBJECT TO LEGEND. If deemed necessary by the Corporation's
counsel, all certificates issued to represent Shares purchased upon exercise of
the Options shall bear such appropriate legend conditions as counsel for the
Corporation shall require.
12. COMPLIANCE WITH APPLICABLE LAWS. THE CORPORATION'S OBLIGATION TO
ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS EXPRESSLY
CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR RULINGS OR
REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY, OR THE MAKING OF SUCH
INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND UNDERTAKINGS BY THE
OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN ORDER TO COMPLY WITH
THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE CORPORATION SHALL, IN ITS SOLE
DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND
UNDERTAKINGS MAY INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE OR ANY
PERSON ENTITLED TO EXERCISE THE OPTION (i) IS NOT PURCHASING SUCH SHARES FOR
DISTRIBUTION AND (ii) AGREES TO HAVE PLACED UPON THE FACE AND REVERSE OF ANY
CERTIFICATES A LEGEND SETTING FORTH ANY REPRESENTATIONS AND UNDERTAKINGS WHICH
HAVE BEEN GIVEN TO THE CORPORATION OR A REFERENCE THERETO.
13. MISCELLANEOUS.
13.1 Binding Effect. This Agreement shall bind and inure to
the benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
13.2 Further Acts. Each party agrees to perform any further
acts and execute and deliver any documents which may be necessary to carry out
the provisions of this Agreement.
13.3 Amendment. This Agreement may be amended at any time by
the written agreement of the Corporation and the Optionee.
13.4 Syntax. Throughout this Agreement, whenever the context
so requires, the singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders. The headings and captions of the
various Sections hereof are for convenience only and they shall not limit,
expand or otherwise affect the construction or interpretation of this Agreement.
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13.5 Choice of Law. The parties hereby agree that this
Agreement has been executed and delivered in the State of California and shall
be construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree that
any uncertainty or ambiguity existing herein shall not be interpreted against
either of them.
13.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
13.7 Notices. All notices, requests, demands, and other
communications given, or required to be given pursuant to the terms of this
Agreement shall be in writing and may be delivered in person (by hand,
messenger, or other confirmable form of delivery), or be sent by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows,
or by Federal Express or other nationally recognized overnight courier service,
addressed as follows, or by facsimile transmission, to the following respective
numbers, followed by a copy being delivered in person, by mail, or by overnight
courtier as specified herein:
If to Optionee:
If to Corporation: Radiant Technology Corporation
1340 North Jefferson Street
Anaheim, CA 92807
Attn: President
Either party may, by written notice to the other, specify a different address or
numbers for notice purposes. Any notice sent to the party to whom it is
addressed in accordance with this paragraph will be deemed to have been given
(i) when received, if personally delivered; (ii) if sent by registered or
certified mail, return receipt requested, upon the date of delivery shown on the
receipt card, or if no date is shown, the postmark thereon; (iii) if sent via
Federal Express or other nationally recognized overnight courier, one (1)
business day after deposit with such overnight courier; or (iv) if sent by
facsimile transmission, on the day on which it is sent, if receipt of
transmission is confirmed by telephone. If notice is received on a Saturday,
Sunday or legal holiday, it will be deemed to have been given and received on
the next following business day.
13.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as set forth or referred to herein. No supplement, modification or
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
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13.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in each
respective such action or proceeding shall be entitled, in addition to any and
all other relief granted by a court or other tribunal or body, as may be
appropriate, to an award in such action or proceeding of that sum of money which
represents the attorneys' fees reasonably incurred by the prevailing party
therein in filing or otherwise instituting and in prosecuting or otherwise
pursuing or defending such action or proceeding, and, additionally, the
attorneys' fees reasonably incurred by such prevailing party in negotiating any
and all matters underlying such action or proceeding and in preparation for
instituting or defending such action or proceeding.
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first set forth above.
"CORPORATION"
RADIANT TECHNOLOGY CORPORATION,
a California corporation
By:________________________________
Lawrence R. McNamee
Chief Executive Officer
"OPTIONEE"
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