ALGAE DYNAMICS CORP. NONQUALIFIED SHARE OPTION AGREEMENT
Exhibit 10.8
THIS NONQUALIFIED SHARE OPTION AGREEMENT (this “Agreement”) dated December 11, 2014 between Algae Dynamics Corp., a Canadian corporation (the “Company”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (“Optionee”).
1. Grant of Option. The Company hereby grants to Optionee effective as of [November 7], 2014 (“Grant Date”), the right and option (“Option”) to purchase from the Company, for a price equal to C$1.73 per share (the “Exercise Price”), up to 100,000 common shares of the Company’s capital stock (“Shares”), as a nonqualified stock option (“Option”), which Option shall be subject to the applicable terms and conditions set forth below.
2. Terms and Conditions of Option. The Option evidenced by this Agreement is subject to the following terms and conditions, as well as the terms and conditions of Section 3 hereof.
a. Exercise Price. The Exercise Price is C$1.73 per Share.
b. Term of Option. The term of the Option over which the Option may be exercised shall commence on the Grant Date and, subject to the provisions of Section 3(b) below, shall terminate 5 years thereafter.
c. Exercisability of Option. As to the total number of Shares with respect to which the Option is granted, subject to Section 3(b) herein, the Option shall become exercisable as follows: (i) 33,334 Shares of the Option shall become exercisable upon the mutual execution of this Agreement; (ii) 33,333 Shares of the Option shall become exercisable on December 11,2015; and (iii) 33,333 Shares of the Option shall become exercisable on December 11, 2016.
3. Additional Terms and Conditions.
a. Exercise of Option; Payments for Shares. An Option may be exercised from time to time with respect to all or any portion of the number of Shares with respect to which the Option has become exercisable, in whole or in part, by written notice to the Company at the Company’s then principal office, to the attention of the Compensation Committee, substantially in the form of Exhibit A attached hereto. Any notice of exercise of the Option shall be accompanied by payment of the full Exercise Price for the Shares being purchased by certified or bank check, or other form of immediately available funds, payable to the order of Algae Dynamics Corp. The Option shall not be exercised for any fractional Shares and no fractional Shares shall be issued or delivered. The date of actual receipt by the Company of the notice of exercise shall be treated as the date of exercise of the Option for the Shares being purchased.
b. Termination of Option. If Optionee’s employment with the Company terminates, the Option that has become exercisable pursuant to Section 2(c) herein shall continue to be exercisable, to the extent it is exercisable on the date such employment terminated, for ninety (90) days after such termination, but in no event after the date the Option otherwise terminates. The Option that has not become exercisable as of the date of termination of Optionee’s employment with the Company shall be revoked.
c. Continued Employment. The Option granted hereunder shall confer no right on Optionee to continue in the employ of the Company, or limit in any respect the right of the Company (in the absence of a specific agreement to the contrary) to terminate Optionee’s employment at any time.
d. Issuance of Shares; Registration; Withholding Taxes. As soon as practicable after the exercise date of the Option, the Company shall cause to be issued and delivered to Optionee, or for the Optionee’s account, a certificate or certificates for the Option Shares purchased. The Company may postpone the issuance or delivery of the Shares until (i) the completion of registration or other qualification of such Shares or transaction under any state or federal law, rule or regulation, or any listing on any securities exchange, as the Company shall determine to be necessary or desirable; (ii) the receipt by the Company of such written representations or other documentation as the Company deems necessary to establish compliance with all applicable laws, rules and regulations, including applicable federal and state securities laws and listing requirements, if any; and (iii) the payment to the Company, upon its demand, of any amount requested by the Company to satisfy any federal, provincial, state or other governmental withholding tax requirements related to the exercise of the Option. Optionee shall comply with any and all legal requirements relating to Optionee’s resale or other disposition of any Shares acquired under this Agreement.
e. Nontransferability of Options. The Option and this Agreement shall not be assignable or transferable by Optionee other than by will or by the laws of descent and distribution. During Optionee’s lifetime, the Option and all rights of Optionee under this Agreement may be exercised only by Optionee (or by his guardian or legal representative). If the Option is exercised after Optionee’s death, the Committee may require evidence reasonably satisfactory to it of the appointment and qualification of Optionee’s personal representatives and their authority and of the right of any heir or distributee to exercise the Option.
f. Option is Nonqualified Stock Option. The Option granted hereunder is intended to constitute a nonqualified stock option which is not an “incentive stock option”, as that term is defined in Section 422 of the Internal Revenue Code of 1986, as amended.
4. Changes in Capitalization; Reorganization.
a. Adjustments. The number of Shares subject to the Option, and the Exercise Price shall be adjusted proportionately for any increase or decrease in the number of issued common shares by reason of stock dividends, split-ups, recapitalizations or other capital adjustments. Notwithstanding the foregoing, (i) no adjustment shall be made, unless the Committee determines otherwise, if the aggregate effect of all such increases and decreases occurring in any fiscal year is to increase or decrease the number of issued shares by less than five percent (5%); (ii) any right to purchase fractional shares resulting from any such adjustment shall be eliminated; and (iii) the terms of this Section 4(a) are subject to the terms of Section 3(b) below.
b. Corporate Transactions. In the event of (i) a dissolution or liquidation of the Company, (ii) merger, consolidation, amalgamation or reorganization of the Company, (iii) the sale of substantially all of the assets of the Company, (iv) the acquisition, sale, or transfer of more than fifty percent (50%) of the outstanding shares of the Company, or (v) an offer is made generally to the holders of the Company’s voting securities to purchase those securities and which is a “takeover bid” as defined in the Ontario Securities Act (herein referring to (i) through (v) as “Corporate Transaction”), then the Committee may (i) declare that outstanding Options, whether or not then exercisable, shall terminate as of the date of the change in control without any payment to holder thereof, provided the Committee gives its prior written notice to the Optionee of such termination and the right to exercise such outstanding Options for at least ten (10) days before the change in control to the extent then exercisable (or to the extent exercisable as of the change in control),
(ii) terminate on or before such change in control all outstanding Options, whether or not then exercisable, in consideration of payment to holder of the Option, with respect to each Common Share for which the Option is then exercisable (or for which the Option will be exercisable as of the change in control) of the excess, if any, of the Fair Market Value (as defined below) on such date of a Common Share over the Exercise Price, (provided that Options that are not then exercisable and that are not to become exercisable upon the change in control, and Options with respect to which the Fair Market Value of the Common shares exceeds the option price shall be cancelled without any payment therefor), or (iii) take such other actions as the Committee determines to be reasonable to permit the Optionee to realize the value of the Option (for purposes hereof, the value of Options whose Exercise Price exceeds the Fair Market Value of the Common Shares that would not become non-forfeitable and fully transferable as of the change in control, shall be deemed to be zero). "Fair Market Value" means, as of any date, the value of Common Shares or other property as determined by the Board, in its discretion, or by the Corporation, in its discretion, if such determination is expressly allocated to the Corporation herein, subject to the following: (i) If, on such date, the Common Shares are listed on a national or regional securities exchange or market system, the Fair Market Value of the Common Shares shall be the closing price of the Common Shares (or the mean of the closing bid and asked prices of the Common Shares if they are so quoted instead) as quoted on the Nasdaq Global Marketplace, the Toronto Stock Exchange or such other national or regional securities exchange or market system constituting the primary market for the Common Shares, as reported in The Wall Street Journal or such other source as the Corporation deems reliable. If the relevant date does not fall on a day on which the Common Shares have traded on such securities exchange or market system, the date on which the Fair Market Value shall be established shall be the last day on which the Common Shares were so traded prior to the relevant date, or such other appropriate day as shall be determined by the Board, in its discretion; and (ii) If, on such date, there is no public market for the Common Shares, the Fair Market Value of the Common Shares shall be as determined by the Board in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse.
Whenever deemed appropriate by the Committee, any action referred to in this Section 4(b) may be made conditional upon the consummation of the applicable Corporate Transaction.
c. Committee Determination. Any adjustments or other action pursuant to this Section 4 shall be made by the Committee, and the Committee’s determination as to what adjustments shall be made or actions taken, and the extent thereof, shall be final and binding.
5. No Rights as Shareholder. Optionee shall acquire none of the rights of a shareholder of the Company with respect to the Shares until a certificate for the shares is issued to Optionee upon the exercise of the Option. Except as otherwise provided in Section 4 above, no adjustments shall be made for dividends, distributions or other rights (whether ordinary or extraordinary, and whether in cash, securities or other property) for which the record date is prior to the date such certificate is issued.
6. Legends. All certificates representing the Shares acquired pursuant to the Option may be issued with or without a restrictive legend as counsel to the Company deems appropriate to assure compliance with applicable law. All certificates evidencing Shares purchased under this Agreement in an unregistered transaction shall bear the following legend (and such other restrictive legends as are required or deemed advisable under the provisions of any applicable law):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
If, in the opinion of the Company and its counsel, any legend placed on a stock certificate representing Shares purchased under this Agreement is no longer required, the holder of such certificate shall be entitled to exchange such certificate for a certificate representing the same number of Shares but without such legend.
7. Notices. Any notice or other communication made in connection with this Agreement shall be deemed duly given when delivered in person or mailed by certified or registered mail, return receipt requested, to Optionee at Optionee’s address listed above or such other address of which Optionee shall have advised the Company by similar notice, or to the Company at its then principal office, to the attention of the Committee.
8. Miscellaneous. This Agreement sets forth the parties’ final and entire agreement with respect to the subject matter hereof, may not be changed or terminated orally and shall be governed by and shall be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. This Agreement shall bind and benefit Optionee, the heirs, distributees and personal representative of Optionee, and the Company and its successors and assigns.
IN WITNESS WHEREOF, the parties have duly executed this Nonqualified Stock Option Agreement on the date first above written.
| ALGAE DYNAMICS CORP. | |||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Chief Executive Officer | |||
| GRANTEE | |||
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
EXHIBIT A
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ATTN: Compensation Committee
Dear Sir/Madam:
Pursuant to the provisions of the Algae Dynamics Corp. Nonqualified Stock Option Agreement, dated December 11, 2014, (the “Option Agreement”), whereby you have granted me the Option to purchase up to 100,000 common shares of capital stock of Algae Dynamics Corp. (the “Company”), I hereby notify you that I elect to exercise my option to purchase ________ of the shares covered by the Option at a price of C$1.73 per share in accordance with the Option Agreement. I am delivering to you payment in the amount of C$______, in the form of a certified or bank check, or other form of immediately available funds, payable to the order of Algae Dynamics Corp., in full payment of purchase price for the for the shares being purchased hereby.
The undersigned hereby agrees to provide the Company, prior to the receipt of the shares being purchased hereby, with such representations or certifications or payments that the Company may require pursuant to the terms of the Option Agreement.
Sincerely,
Address:
(For notices, reports, dividend checks and communications to shareholders.)