<PAGE>
As filed with the Securities and Exchange Commission on September 2, 1998
Registration No._________
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Washington, D.C. 20549
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
ORYX TECHNOLOGY CORP.
[Exact name of Registrant as specified in its charter]
DELAWARE 22-2115841
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
1100 Auburn Street
Fremont, California 94538
(Address of Principal Executive Offices)
ORYX TECHNOLOGY CORP. INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION AGREEMENTS BETWEEN
ORYX TECHNOLOGY CORP. AND EACH OF
PAUL DICKERSON, THOMAS LANDGRAF, CHARLES RAY,
BHARAT SHAH AND GARY SOLLNER
(Full title of Plans)
MR. PHILIP J. MICCICHE
Chief Executive Officer
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
(510) 492-2080
(Name, address and telephone number of agent for service)
Copies to:
JERROLD F. PETRUZZELLI, ESQ.
3030 Hansen Way, Suite 100
Palo Alto, California 94304
(650) 856-1200
Approximate date of commencement of proposed sales:
From time to time after the effective date
of the Registration Statement
1
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Title of each class Proposed Proposed maximum Amount of
of securities to be Amount to be registered maximum offering price aggregate offering registration
registered per share (1) price (1) fee (1)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,255,000(2) $.6756 $847,878 $250.00
Par value $0.001
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h) and Rule 457(c), the proposed maximum
offering price per share and the registration fee are based (i)
in the case of up to 255,000 shares that in the future may be
issued upon exercises of options granted under certain incentive
agreements, on the respective exercise prices ranging from $0.25
per share to $0.95 per share, and (ii) in the case of up to
1,000,000 shares that may be issued upon the exercise of options
granted or to be granted under the Incentive and Nonqualified
Stock Option Plan, on the reported average of the bid and asked
prices for Oryx Technology Corp. Common Stock on the NASDAQ
National Market Systems' quotation system of $0.6406 on
August 28, 1998.
(2) Pursuant to Rule 429, includes 1,000,000 shares reserved for
issuance under the Incentive and Nonqualified Stock Option Plan
(in addition to 1,625,000 shares previously registered on
Form S-8 File No. 33-85556, Form S-8 File No. 333-07409 and
Form S-8 File No. 333-13887) and 255,000 shares that in the
future may be issued under certain nonstatutory stock option
agreements. Pursuant to Rule 416, this Registration Statement
shall also cover any additional shares of the Registrant's
Common Stock that becomes issuable by reason of any stock
dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration that
increases the number of the Registrant's outstanding shares of
Common Stock.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
All information required by Part I to be contained in the
prospectus to be delivered to directors, officers, employees and consultants
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 (the "Securities Act") and the Note to Part I of
Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
All information required in Part I to be contained in the
prospectus to be delivered to directors, officers, employees and consultants
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by Oryx
Technology Corp. (the "Company") (File No. 1-12680 with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), are incorporated by reference
herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-KSB, as amended,
for the fiscal year ended February 28, 1998.
2. The Company's Current Reports on Form 8-K filed with
the Commission on March 16, 1998 and March 23, 1998.
3. The Company's Quarterly Report on Form 10-QSB for the
quarterly period ended May 31, 1998.
4. The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A filed with the Commission
on December 13, 1993, as amended, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from their
respective dates of filing such documents.
Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein
3
<PAGE>
or in any other subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law
permits a corporation to indemnify any director or officer of the corporation
against expenses (including attorney's fees), judgments, fines and amounts
paid in settlements actually and reasonably incurred in connection with any
action, suit or proceeding brought by reason of the fact that such person is
or was a director or officer of the corporation, if such person acted in good
faith and in a manner that he or she reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, if he or she had no reason to believe his
conduct was unlawful. In a derivative action, i.e., one by or in the right
of the corporation, indemnification may be made only for expenses actually
incurred by any director or officer in connection with the defense or
settlement of an action, if such person has acted in good faith and in a
manner that he or she reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been adjudged to be liable to the corporation, unless
and only to the extent that the court in which the action or suit was brought
shall determine upon application that the defendant is reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
The Company's Certificate of Incorporation provides that,
to the fullest extent permitted by Delaware law, the Company's directors will
not be liable for monetary damages, for breach of the directors' fiduciary
duty of care to the Company and its stockholders. This provision and the
Certificate of Incorporation does not eliminate the duty of care and in
appropriate circumstances, equitable remedies such as an injunction or other
forms of non-monetary relief would remain available under Delaware law. Each
director will continue to be subject to liability for breach of the
directors' duty of loyalty to the Company for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of the Company or its stockholders for any transaction from which
the director derived an improper personal benefit for acts or omissions
involving a reckless disregard of the director's duty to the Company or its
stockholders where the director was aware or should have been aware of the
risk of serious injury to the Company or its stockholders for acts or
omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its stockholders for
improper transactions between the director and the Company and for improper
distributions to stockholders and loans to directors and officers. This
provision also does not affect the director's responsibilities under any
other laws such as the federal securities laws or state or federal
environmental laws.
The Company's Bylaws provide that the Company has the power to indemnify
its directors and officers to the fullest extent permitted by the Delaware
General Corporation Law.
4
<PAGE>
Pursuant to the authority provided for in the Company's Certificate of
Incorporation, the Company has entered into indemnification agreements with
each of its officers and directors, indemnifying them against certain
potential liabilities that may arise as a result of their service to the
Company.
The Company also maintains insurance policy covering the liability and
expenses which might be incurred in connection with lawful indemnification of
directors and officers of the Company and its majority owned subsidiaries for
certain liabilities and expenses of such directors and officers for acts in
those capacities. Such directors and officers are also insured against
certain liabilities and expense incurred for acts in such capacities and for
which they are not entitled to indemnification by the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed in the following Exhibit Index are filed as
part of this Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C>
4.1 Certificate of Incorporation of Registrant dated
July 26, 1993 (filed as Exhibit 3.1 to the
Registrant's Form 10-KSB File No. 1-12680 for the
fiscal year ended February 28, 1994 and
incorporated herein by reference), as amended by
the Certificate of Amendment to the Certificate of
Incorporation of Registrant dated March 29, 1994
(filed as Exhibit 3.3 to the Registrant's Form 10-KSB
File No. 1-12680 for the fiscal year ended
February 28, 1994 and incorporated herein by
reference), as amended by the Certificate of
Amendment to the Certificate of Incorporation of
Registrant dated January 31, 1996 (filed as
Exhibit 3.3A to the Registrant's Form 10-KSB File
No. 1-12680 for the fiscal year ended February 29,
1996 and incorporated herein by reference)
4.2 Bylaws of the Registrant, as adopted by the Board
of Directors and Stockholders on July 26, 1993
(filed as Exhibit 3.2 to Registrant's Form 10-KSB
File No. 1-12680 for the fiscal year ended
February 28, 1994 and incorporated herein by
reference)
4.3 Oryx Technology Corp. Amended Incentive and
Nonqualified Stock Option Plan*
5
<PAGE>
<S> <C>
4.4 Nonstatutory Stock Option Agreement, dated as of
March 1, 1998, between the Registrant and Bharat
Shah.*
4.5 Nonstatutory Stock Option Agreement, dated as of
March 1, 1998, between the Registrant and Bharat
Shah.*
4.6 Nonstatutory Stock Option Agreement, dated as of
March 1, 1998, between the Registrant and Paul
Dickerson.*
4.7 Nonstatutory Stock Option Agreement, dated as of
March 1, 1998, between the Registrant and Thomas
Landgraf.*
4.8 Nonstatutory Stock Option Agreement, dated as of
March 1, 1998, between the Registrant and Charles
Ray.*
4.9 Nonstatutory Stock Option Agreement, dated as of
March 1, 1998, between the Registrant and Gary
Sollner.*
5.1 Opinion of Wise & Shepard LLP (including consent
to filing thereof)*
23.1 Consent of Price Waterhouse LLP, Independent
Auditors*
23.2 Consent of Counsel (included in Exhibit 5.1.)*
24.1 Power of Attorney (included on the signature page
of this Registration Statement).*
*filed herewith
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the
6
<PAGE>
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if
the registration statement is on Form S-3, Form S-8, or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fremont, State of California, on
the 31st day of August, 1998.
ORYX TECHNOLOGY CORP.
By: /s/ Philip J. Micciche
----------------------
Philip J. Micciche
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
Know all men by these presents, that each officer or director of Oryx
Technology Corp. whose signature appears below constitutes and appoints
Philip J. Micciche and Mitchel Underseth, and each of them severally her/his
true and lawful attorney-in-fact and agent, with full and several power of
substitution, for her/him and in her/his name, place and stead, in any and
all capacities, to sign any or all amendments, including post-effective
amendments and supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they or she/he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or her/his or their substitute or substitutes may
lawfully do or cause to be done by virtue thereof.
8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated and on the dates set forth opposite their signature.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Philip J. Micciche President, Chief August 31, 1998
- ---------------------- Executive Officer and Director
Philip J. Micciche (principal executive officer)
/s/ Mitchel Underseth Chief Financial Officer August 31, 1998
- --------------------- and Director (principal financial
Mitchel Underseth and accounting officer)
/s/ Andrew Intrater Secretary and Director August 31, 1998
- -------------------
Andrew Intrater
/s/ John Abeles Director August 31, 1998
- ---------------
John Abeles
/s/ Richard Hubbard Director August 31, 1998
- -------------------
Richard Hubbard
/s/ Jay M. Haft Director August 31, 1998
- ---------------
Jay M. Haft
/s/ Doug McBurnie Director August 31, 1998
- -----------------
Doug McBurnie
/s/ Ted D. Morgan Director August 31, 1998
- -----------------
Ted D. Morgan
</TABLE>
9
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
filed with
Registration Statement on Form S-8
The Securities Act of 1933
ORYX TECHNOLOGY CORP.
(Exact name of issuer as specified in its charter)
August 31, 1998
10
<PAGE>
ORYX TECHNOLOGY, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.3 Oryx Technology Corp. Amended Incentive
and on qualified Stock Option Plan
4.4 Nonstatutory Stock Option Agreement, dated
as of March 1, 1998, between the Registrant
and Bharat Shah.
4.5 Nonstatutory Stock Option Agreement, dated
as of March1, 1998, between the Registrant and
Bharat Shah.
4.6 Nonstatutory Stock Option Agreement, dated
as of March 1, 1998, between the Registrant
and Paul Dickerson.
4.7 Nonstatutory Stock Option Agreement, dated
as of March 1, 1998, between the Registrant
and Thomas Landgraf.
4.8 Nonstatutory Stock Option Agreement, dated
as of March 1, 1998, between the Registrant
and Charles Ray.
4.9 Nonstatutory Stock Option Agreement, dated
as of March 1, 1998, between the Registrant
and Gary Sollner.
5.1 Opinion of Wise & Shepard LLP
(including consent to filing thereof)
23.1 Consent of Price Waterhouse LLP,
Independent Auditors. (including consent to
filing thereof)
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
</TABLE>
11
<PAGE>
EXHIBIT 4.3
ORYX TECHNOLOGY CORP.
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
(As amended on September 8, 1997)
1. PURPOSE. The purpose of the Oryx Technology Corp. INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN (the "Plan") is to grant to selected employees
of Oryx Technology Corp., a Delaware corporation (the "Company") and its
subsidiaries and affiliates, a favorable opportunity to acquire Common Stock
of the Company, thereby encouraging such persons to accept or continue their
relationships with the Company; increasing the interest of such persons in
the Company's welfare through participation in the growth and value of the
Common Stock; and furnishing such persons with an incentive to improve
operations and increase profits of the Company.
To accomplish the foregoing objectives, this Plan provides a means
whereby employees may receive options to purchase Common Stock. Options
granted under this Plan will be either nonstatutory (nonqualified) stock
options or incentive stock options.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company, or, in the discretion of the Board, by a committee
(the Board and the Committee shall be jointly referred to hereafter as the
"Administrator") of not less than two members of the Board each of whom shall
not at any time within one (1) year prior to his service as an administrator
of the Plan have received a grant or award of equity securities pursuant to
the Plan or any other plan of the Company or any of its affiliates. Subject
to the provisions of the Plan, the Administrator shall have the sole
authority, in its discretion:
(a) to determine to which of the eligible individuals, and the
time or times at which, options to purchase Common Stock of the Company shall
be granted;
(b) to determine the number of shares of Common Stock to be
subject to options granted to each eligible individual;
(c) to determine the price to be paid for the shares of Common
Stock upon the exercise of each option;
(d) to determine the term and the exercise schedule of each option;
(e) to determine the terms and conditions of each stock option
agreement (which need not be identical) entered into between the Company and
any eligible individual to whom the Administrator has granted an option;
1
<PAGE>
(f) to interpret the Plan;
(g) to modify or amend any such option; and
(h) to make all determinations deemed necessary or advisable for
the administration of the Plan.
3. ELIGIBILITY. Every individual who at the date of grant is an
employee of the Company or of any parent or subsidiary of the Company (as
defined in subsection 5.1(c) below) is eligible to receive incentive stock
options and/or nonstatutory stock options under this Plan. The term
"employee" includes an officer or director who is an employee of the Company
or a parent or subsidiary of it, as well as a non-officer, non-director
employee of the Company or a parent or subsidiary of it. Every individual
who at the date of grant is a consultant to or non-employee director of the
Company or a parent or subsidiary of it is eligible to receive nonstatutory
stock options under this Plan.
4. COMMON STOCK SUBJECT TO PLAN.
(a) There shall be reserved for issue upon the exercise of options
granted under the Plan two million six hundred twenty five thousand
(2,625,000) shares of Common Stock, subject to adjustment as provided in
Section 7 hereof. If an option granted under the Plan shall expire or
terminate for any reason without having been exercised in full, the
unpurchased shares subject thereto shall again be available for the purposes
of the Plan.
(b) Notwithstanding any other provisions of this Plan, the
aggregate number of shares of Common Stock subject to outstanding options
granted under this Plan, plus the aggregate number of shares issued upon the
exercise of all options granted under this Plan, shall never be permitted to
exceed the number of shares specified in the first sentence of subsection
4(a) above.
5. TERMS OF OPTIONS. Each option granted under the Plan shall be
evidenced by a stock option agreement between the individual to whom the
option is granted (the "optionee") and the Company. Each such agreement
shall designate the option thereby granted as an incentive stock option, a
nonstatutory stock option or in part an incentive stock option and in part a
nonstatutory stock option. Each such agreement shall be subject to the terms
and conditions set forth in subsection 5.1, and to such other terms and
conditions not inconsistent herewith as the Administrator may deem
appropriate in each case. Incentive stock options shall be subject also to
the terms and conditions set forth in subsection 5.2.
5.1 TERMS AND CONDITIONS TO WHICH ALL OPTIONS ARE SUBJECT. All
options granted under this Plan shall be subject to the following terms and
conditions:
(a) TERM OF OPTIONS. The period or periods within which an
option may be exercised shall be determined by the Administrator at the time
the option is granted, but
2
<PAGE>
in no event shall such period extend beyond ten (10) years from the date the
option is granted in the case of an incentive stock option, or ten (10) years
and one (1) week from the date the option is granted in the case of a
nonstatutory stock option.
(b) EXERCISE PRICE. The price to be paid for each share of
Common Stock upon the exercise of an option shall be determined by the
Administrator at the time the option is granted, but shall in no event be
less than eighty-five percent (85%) in the case of a nonstatutory stock
option, and one hundred percent (100%) in the case of an incentive stock
option, of the fair market value of a share of Common Stock on the date the
option is granted. For all purposes of this Plan, the fair market value of
the Common Stock on any particular date shall be the closing price on the
trading day next preceding that date on the principal securities exchange on
which the Company's Common Stock is listed, or, if such Common Stock is not
then listed on any securities exchange, then the fair market value of the
Common Stock on such date shall be the mean of the closing bid and asked
prices as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") on the trading day next preceding such
date. In the event that the Company's Common Stock is neither listed on a
securities exchange nor quoted by NASDAQ, then the Administrator shall
determine the fair market value of the Company's Common Stock on such date.
(c) MORE THAN TEN PERCENT SHAREHOLDERS. No option shall be
granted to any individual who, at the time such option would be granted, owns
stock possessing more than ten percent (10%) of the total combined voting
power of all classes of outstanding capital stock of the Company, or of any
parent corporation or subsidiary corporation of the Company, unless the
exercise price (as provided in subsection 5.1(b) hereof) is not less than one
hundred ten percent (110%) of the fair market value of the Common Stock on
the date the option is granted, and in the case of an incentive stock option
the period within which the option may be exercised (as provided in
subsection 5.1(a) hereof) does not exceed five (5) years from the date the
option is granted. As used in this Plan, the terms "parent corporation" and
"subsidiary corporation" shall have the meanings set forth in Sections 424(e)
and (f), respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). For purposes of this subsection 5.1(c), in determining stock
ownership, an optionee shall be considered as owning the voting capital stock
owned, directly or indirectly, by or for his brothers and sisters, spouse,
ancestors and lineal descendants. Voting capital stock owned, directly or
indirectly, by or for a corporation, partnership, estate or trust shall be
considered as being owned proportionately by or for its shareholders,
partners or beneficiaries, as applicable. Common Stock with respect to which
any such optionee holds an option shall not be counted. Additionally, for
purposes of this subsection 5.1(c), outstanding capital stock shall include
all capital stock actually issued and outstanding immediately after the grant
of the option to the optionee. Outstanding capital stock shall not include
capital stock authorized for issue under outstanding options held by the
optionee or by any other person.
(d) METHOD OF PAYMENT FOR COMMON STOCK. Payment for stock
purchased upon any exercise of an option granted under this Plan shall be
made in full in cash concurrently with such exercise, except that, if and to
the extent the instrument evidencing the option so provides and if the
Company is not then prohibited from purchasing or acquiring shares
3
<PAGE>
of such stock, such payment may be made in whole or in part with shares of
the same class of stock as that then subject to the option, delivered in lieu
of cash concurrently with such exercise, the shares so delivered to be valued
on the basis of the fair market value of the stock (determined in a manner
specified in the instrument evidencing the option) on the day preceding the
date of exercise.
(e) NONTRANSFERABILITY. All options shall be
nontransferable, except by will or the laws of descent and distribution, and
shall be exercisable during the lifetime of the optionee only by the optionee.
(f) WITHHOLDING AND EMPLOYMENT TAXES. At the time of
exercise of an option, the optionee shall remit to the Company in cash the
amount of any and all applicable federal and state withholding and employment
taxes.
5.2 ADDITIONAL TERMS AND CONDITIONS TO WHICH INCENTIVE STOCK
OPTIONS ARE SUBJECT. Options granted under this Plan which are designated as
incentive stock options shall be subject to the following additional terms
and conditions:
(a) ANNUAL LIMITATION. To the extent that the aggregate fair
market value (determined as of the date an incentive stock option is granted)
of the stock with respect to which incentive stock options granted are
exercisable for the first time by an employee during any one (1) calendar
year (under this Plan and under all other incentive stock option plans of the
Company and of any parent or subsidiary corporation) exceeds One Hundred
Thousand Dollars ($100,000), such options shall be treated as options which
are not incentive stock options.
(b) DEATH. Upon the death of an employee, any incentive
stock option which such employee holds may be exercised, within such period
after the date of death as the Administrator shall prescribe in the stock
option agreement, by the employee's representative or by the person entitled
thereto under the employee's will or the laws of intestate succession.
(c) DISABILITY. Upon the disability of an employee, any
incentive stock option which the employee holds may be exercised by the
employee within such period after the date of termination of employment
resulting from such disability (not to exceed twelve (12) months) as the
Administrator shall prescribe in the stock option agreement. The option
shall terminate upon the expiration of such prescribed period, unless the
employee dies prior thereto, in which event the provisions of subsection
5.2(b) hereof shall apply.
(d) RETIREMENT. Upon the voluntary retirement of an employee
at or after reaching sixty-five (65) years of age, an incentive stock option
may be exercised by such employee with respect to all or any portion of the
balance of the Common Stock subject thereto within such period after the date
of retirement (not to exceed three (3) months) as the Administrator shall
prescribe in the stock option agreement. The option shall terminate upon the
expiration of such prescribed period, unless the employee dies prior thereto,
in which event the provisions of subsection 5.2(b) hereof shall apply.
4
<PAGE>
(e) TRANSFER TO RELATED CORPORATION. In the event that an
employee leaves the employ of the Company to become an employee of any parent
or subsidiary corporation of the Company, or if the employee leaves the
employ of any such parent or subsidiary corporation to become an employee of
the Company or of another parent or subsidiary corporation, such employee
shall be deemed to continue as an employee of the Company for all purposes of
this Plan.
(f) OTHER SEVERANCE. In the event an employee leaves the
employ of the Company for any reason other than as set forth in subsections
(b) through (e), above, any incentive stock option which such employee holds
may be exercised by such employee with respect to all or any portion of the
balance of the Common Stock subject thereto within such period after the date
of severance (not to exceed three (3) months) as the Administrator shall
prescribe in the stock option agreement.
(g) DISQUALIFYING DISPOSITIONS. If Common Stock acquired by
exercise of an incentive stock option granted pursuant to this Plan is
disposed of within two (2) years from the date of grant of the option or
within one (1) year after the transfer of the Common Stock to the optionee,
the holder of the Common Stock immediately prior to the disposition shall
promptly notify the Company in writing of the date and terms of the
disposition and shall provide such other information regarding the
disposition as the Company may reasonably require.
6. STOCK ISSUANCE AND RIGHTS AS SHAREHOLDER. Notwithstanding any
other provisions of the Plan, no optionee shall have any of the rights of a
shareholder (including the right to vote and receive dividends) of the
Company, by reason of the provisions of this Plan or any action taken
hereunder, until the date such optionee shall both have paid the exercise
price for the Common Stock and shall have been issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) the stock certificate evidencing such shares.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) Subject to any required action by the Company's shareholders,
the number of shares of Common Stock covered by this Plan as provided in
Section 4, the number of shares covered by each outstanding option granted
hereunder 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 shareholders,
if the Company shall be the surviving corporation in any merger or
consolidation, each outstanding option shall pertain and apply to the
securities to which a holder of the number of shares subject
5
<PAGE>
to the option would have been entitled. A dissolution or liquidation of the
Company or a merger or consolidation in which the Company is not the
surviving corporation shall cause each outstanding option to terminate,
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 Board,
whose determination in that respect shall be final, binding and conclusive.
(d) Except as hereinabove expressly provided in this Section 7, no
optionee shall have any 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 spin-off 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 price of shares subject
to any option granted hereunder.
(e) The grant of an option pursuant to this Plan 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.
8. SECURITIES LAW REQUIREMENTS.
(a) The Administrator may require an individual as a condition of
the grant and of the exercise of an option, to represent and establish to the
satisfaction of the Administrator that all shares of Common Stock to be
acquired upon the exercise of such option will be acquired for investment and
not for resale. The Administrator shall cause such legends to be placed on
certificates evidencing shares of Common Stock issued upon exercise of an
option as, in the opinion of the Company's counsel, may be required by
federal and applicable state securities laws.
(b) No shares of Common Stock shall be issued upon the exercise of
any option unless and until counsel for the Company determines that: (i) the
Company and the optionee have satisfied all applicable requirements under the
Securities Act of 1933 and the Securities Exchange Act of 1934; (ii) any
applicable listing requirement of any stock exchange on which the Company's
Common Stock is listed has been satisfied; and (iii) all other applicable
provisions of state and federal law have been satisfied.
9. FINANCIAL ASSISTANCE. The Company is vested with authority under
this Plan to assist any employee to whom an option is granted hereunder
(including any consultant to, director or officer of the Company or any of
its subsidiaries who is also an employee) in the payment of the purchase
price payable on exercise of that option, by lending the amount of such
6
<PAGE>
purchase price to such employee on such terms and at such rates of interest
and upon such security as shall have been authorized by or under authority of
the Board.
10. AMENDMENT. The Board may terminate the Plan or amend the Plan from
time to time in such respects as the Board may deem advisable, except that,
without the approval of the Company's shareholders in compliance with the
requirements of applicable law, no such revision or amendment shall:
(a) increase the number of shares of Common Stock reserved under
Section 4 hereof for issue under the Plan, except as provided in Section 7
hereof;
(b) change the class of persons eligible to participate in the
Plan under Section 3 hereof;
(c) extend the term of the Plan under Section 10 hereof; or
(d) amend this Section 10 to defeat its purpose.
11. TERMINATION. The Plan shall terminate automatically on March 3,
2003, and may be terminated at any earlier date by the Board. No option
shall be granted hereunder after termination of the Plan, but such
termination shall not affect the validity of any option then outstanding.
12. TIME OF GRANTING OPTIONS. The date of grant of an option hereunder
shall, for all purposes, be the date on which the Administrator makes the
determination granting such option.
13. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of shares of its
Common Stock as shall be sufficient to satisfy the requirements of the Plan.
14. EFFECTIVE DATE. This Plan, as amended, was adopted by the Board of
Directors of the Company on September 8, 1997, and shall be effective on said
date. The Plan, as amended, was approved by the stockholders of the Company
on October 14, 1997.
15. FINANCIAL REPORTS. The Company shall deliver financial and other
information regarding the Company, on an annual or more frequent basis, to
each individual holding an outstanding option under the Plan; provided,
however, that financial statements will not be furnished to key employees
whose duties in connection with the issuer assure them access to equivalent
information.
7
<PAGE>
EXHIBIT 4.4
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does hereby
grant to Bharat Shah (the "Optionee") a nontransferable option to purchase an
aggregate of Fifty Thousand (50,000) 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 August 1, 1999 (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 $0.25 per share.
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 Todd Power Corporation
("Todd") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Todd) 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
Todd 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 Todd
because of the 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 Todd
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
1
<PAGE>
by the Optionee on the date of such termination.
(c) OTHER TERMINATION. If the Optionee ceases to be an employee
of Todd 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 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
2
<PAGE>
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:
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,
3
<PAGE>
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.
4
<PAGE>
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/ MITCHEL UNDERSETH
----------------------
Name: Mitchel Underseth
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
1100 Auburn Street
Fremont, California 94538
AGREED TO AND ACCEPTED:
/s/ Bharat Shah
- -----------------------------
Print Name:
Address: ___________________
___________________
___________________
5
<PAGE>
EXHIBIT A
Form of Notice of Exercise of
ORYX TECHNOLOGY CORP. STOCK OPTION
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
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: ___________________
___________________
___________________
6
<PAGE>
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
7
<PAGE>
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: __________________
__________________
__________________
8
<PAGE>
EXHIBIT 4.5
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does
hereby grant to Bharat Shah (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 Todd 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 Todd Power Corporation
("Todd") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Todd) 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
Todd 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 Todd
because of the
1
<PAGE>
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 Todd
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 Todd 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
2
<PAGE>
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:
3
<PAGE>
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.
4
<PAGE>
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/Mitchel Underseth
----------------------
Name: Mitchel Underseth
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
1100 Auburn Street
Fremont, California 94538
AGREED TO AND ACCEPTED:
/s/ Bharat Shah
- ---------------
Print Name:
Address: ___________________
___________________
___________________
5
<PAGE>
EXHIBIT A
Form of Notice of Exercise of
ORYX TECHNOLOGY CORP. STOCK OPTION
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
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: ___________________
___________________
___________________
6
<PAGE>
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
7
<PAGE>
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: __________________
__________________
__________________
8
<PAGE>
EXHIBIT 4.6
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does
hereby grant to Paul Dickerson (the "Optionee") a nontransferable option to
purchase an aggregate of Forty Thousand (40,000) 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 Todd 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 Todd Power Corporation
("Todd") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Todd) 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
Todd 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 Todd
because of the
1
<PAGE>
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 Todd
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 Todd 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
2
<PAGE>
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:
3
<PAGE>
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.
4
<PAGE>
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/Mitchel Underseth
------------------------------
Name: Mitchell Underseth
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
1100 Auburn Street
Fremont, California 94538
AGREED TO AND ACCEPTED:
/s/ Paul Dickerson
- -----------------------------
Print Name:
Address: ___________________
___________________
___________________
5
<PAGE>
EXHIBIT A
Form of Notice of Exercise of
ORYX TECHNOLOGY CORP. STOCK OPTION
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
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: ___________________
___________________
___________________
6
<PAGE>
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
7
<PAGE>
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: __________________
__________________
__________________
8
<PAGE>
EXHIBIT 4.7
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does
hereby grant to Tom Landgraf (the "Optionee") a nontransferable option to
purchase an aggregate of Thirty Thousand (30,000) 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 Todd 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 Todd Power Corporation
("Todd") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Todd) 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
Todd 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 Todd
because of the
1
<PAGE>
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 Todd
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
Todd 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
2
<PAGE>
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:
3
<PAGE>
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.
4
<PAGE>
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/ Mitchel Underseth
---------------------
Name: Mitchel Underseth
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
1100 Auburn Street
Fremont, California 94538
AGREED TO AND ACCEPTED:
/s/ Tom Landgraf
- ----------------
Print Name:
Address: ___________________
___________________
___________________
5
<PAGE>
EXHIBIT A
Form of Notice of Exercise of
Oryx Technology Corp. Stock Option
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
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: ___________________
___________________
___________________
6
<PAGE>
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
7
<PAGE>
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: __________________
__________________
__________________
8
<PAGE>
EXHIBIT 4.8
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does
hereby grant to Charles Ray (the "Optionee") a nontransferable option to
purchase an aggregate of Thirty Thousand (30,000) 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 Todd 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 Todd Power Corporation
("Todd") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Todd) 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
Todd 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.
1
<PAGE>
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 Todd
because of the 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 Todd
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 Todd 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
2
<PAGE>
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 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;
3
<PAGE>
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:
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.
4
<PAGE>
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/ Mitchel Underseth
--------------------------
Name: Mitchel Underseth
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
1100 Auburn Street
Fremont, California 94538
AGREED TO AND ACCEPTED:
/s/ Charles Ray
- -------------------------
Print Name:
Address: ___________________
___________________
___________________
5
<PAGE>
EXHIBIT A
Form of Notice of Exercise of
ORYX TECHNOLOGY CORP. STOCK OPTION
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
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: ___________________
___________________
___________________
6
<PAGE>
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
7
<PAGE>
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: __________________
__________________
__________________
8
<PAGE>
EXHIBIT 4.9
ORYX TECHNOLOGY CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
Oryx Technology Corp., a Delaware corporation (the "Company"), does
hereby grant to Gary Sollner (the "Optionee") a nontransferable option to
purchase an aggregate of Thirty Thousand (30,000) 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 Todd 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 Todd Power Corporation
("Todd") due to voluntary resignation or termination for cause (as determined
in good faith by the Board of Directors of Todd) 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
Todd 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.
1
<PAGE>
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 Todd
because of the 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 Todd
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 Todd 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
2
<PAGE>
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 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;
3
<PAGE>
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:
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.
4
<PAGE>
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/ Mitchel Underseth
---------------------
Name: Mitchel Underseth
Title: Chief Financial Officer
Oryx Technology Corp.
a Delaware corporation
1100 Auburn Street
Fremont, California 94538
AGREED TO AND ACCEPTED:
/s/ Gary Sollner
- ----------------
Print Name:
Address: ___________________
___________________
___________________
5
<PAGE>
EXHIBIT A
Form of Notice of Exercise of
ORYX TECHNOLOGY CORP. STOCK OPTION
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
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: ___________________
___________________
___________________
6
<PAGE>
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
7
<PAGE>
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: __________________
__________________
__________________
8
<PAGE>
EXHIBIT 5.1
August 31, 1998
Oryx Technology Corp.
1100 Auburn Street
Fremont, CA 94538
Re: Registration Statement on Form S-8; Oryx Technology Corp.
(the "Company"); 1,255,000 Shares of Common Stock
Gentlemen:
We are acting as counsel to Oryx Technology Corp. (the "Company") in
connection with the Registration Statement on Form S-8 to be filed on August
31, 1998 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Act"), covering 1,255,000 shares of the Company's Common Stock,
par value $0.001, consisting of 1,000,000 shares to be issued under the
Company's Incentive and Nonqualified Stock Option Plan, as amended and
255,000 shares to be issued pursuant to individual stock option agreements
(the "Shares").
We have examined the originals, or certified, conformed or reproduction
copies, of all such records, agreements, instruments and documents as we have
deemed relevant or necessary as the basis for the opinion hereinafter
expressed. In all such examinations, we have assumed the genuineness of all
signatures on original or certified copies and the conformity to original or
certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to such opinion, we have
relied upon, and assumed the accuracy of, certificates and oral or written
statements and other information of or from public officials, officers or
representatives of the Company, and others.
Based upon the foregoing, we are of the opinion that the Shares, when
issued, delivered and paid for in accordance with the terms of the Incentive
and Nonqualified Stock Option Plan, as amended, will be validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement and any subsequent Amendment thereto.
Very truly yours,
/s/ Wise & Shepard LLP
----------------------
WISE & SHEPARD LLP
1
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 22, 1998, appearing on page F-2
of Oryx Technology Corp.'s Annual Report on Form 10-KSB for the year ended
February 28, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
- --------------------------------
PRICEWATERHOUSECOOPERS LLP
San Jose, California
August 28, 1998
2
