POKERTEK, INC. Independent Contractor Nonqualified Stock Option Agreement
POKERTEK,
INC.
2007
STOCK INCENTIVE PLAN
THIS
AGREEMENT (together with Schedule A, attached hereto, this "Agreement"),
effective as of _____________ ____, 200__ (the "Grant Date"), between POKERTEK,
INC., a North Carolina corporation (the "Corporation"), and
____________________________, an Independent Contractor of the Corporation
or an
Affiliate (the "Participant");
RECITALS:
In
furtherance of the purposes of the PokerTek, Inc. 2007 Stock Incentive Plan,
as
it may be hereafter amended and/or restated (the "Plan"), and in consideration
of the services of the Participant and such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Corporation and the Participant hereby agree as follows:
1. Incorporation
of Plan.
The
rights and duties of the Corporation and the Participant under this Agreement
shall in all respects be subject to and governed by the provisions of the
Plan,
the terms of which are incorporated herein by reference. In the event of
any
conflict between the provisions in this Agreement and those of the Plan,
the
provisions of the Plan shall govern. Unless otherwise defined herein,
capitalized terms in this Agreement shall have the same definitions as set
forth
in the Plan.
2. Grant
of Option; Term of Option.
The
Corporation hereby grants to the Participant pursuant to the Plan, as a matter
of separate inducement and agreement in connection with his or her service
to
the Corporation or an Affiliate, and not in lieu of any salary or other
compensation for his or her services, the right and Option (the "Option")
to
purchase all or any part of such aggregate number of shares (the "Shares")
of
common stock of the Corporation ("Common Stock") at an option price (the
"Option
Price") as specified on Schedule A, and subject to such other terms and
conditions as may be stated herein or in the Plan or on Schedule A. The
Participant expressly acknowledges that the terms of Schedule A shall be
incorporated herein by reference and shall constitute part of this Agreement.
The Corporation and the Participant further acknowledge and agree that the
signatures of the Corporation and the Participant on the Grant Notice contained
in Schedule A shall constitute their acceptance of all of the terms of this
Agreement and their agreement to be bound by the terms of this
Agreement.
The
Option shall be designated as a Nonqualified Option. Except as otherwise
provided in the Plan or this Agreement, this Option will expire if not exercised
in full by the Expiration Date specified on Schedule A.
3. Exercise
of Option.
Subject
to the terms of the Plan and this Agreement, the Option shall become exercisable
on the date or dates, and subject to such conditions, as are set forth on
Schedule A. To the extent that the Option is exercisable but is not exercised,
the Option shall accumulate and be exercisable by the Participant in whole
or in
part at any time prior to expiration of the Option, subject to the terms
of the
Plan and this Agreement. The
total
number of shares that may be acquired upon exercise of the Option shall be
rounded down to the nearest whole share. The
Participant expressly acknowledges that the Option may vest and be exercisable
only upon such terms and conditions as are provided in this Agreement (including
the terms set forth in Schedule A) and the Plan.
Upon
the exercise of the Option in whole or in part and payment of the Option
Price
in accordance with the provisions of the Plan and this Agreement, the
Corporation shall, as soon thereafter as practicable, deliver to the Participant
a certificate or certificates for the Shares purchased. Payment of the Option
Price may be made in the form: (a) of cash or cash equivalent; and, subject
to
any terms and conditions that may be established by the Administrator, payment
may also be made (b) by delivery (by either actual delivery or attestation)
of
shares of Common Stock owned by the Participant; (c) by shares of Common
Stock
withheld upon exercise; (d) when a public market (as determined under the
Plan)
for shares of Common Stock exists, by delivery of written notice of exercise
to
the Corporation and delivery to a broker of written notice of exercise and
irrevocable instructions to promptly deliver to the Corporation the amount
of
sale or loan proceeds to pay the Option Price; or (e) by any combination
of the
foregoing methods. Shares delivered or withheld in payment on the exercise
of
the Option shall be valued at their Fair Market Value on the date of exercise,
as determined in accordance with the provisions of the Plan.
1
4. No
Right of Employment or Service.
Neither
the Plan, the grant of the Option, nor any other action related to the Plan
shall confer upon the Participant any right to continue in the employment
or
service of the Corporation or an Affiliate or interfere in any way with the
right of the Corporation or an Affiliate to terminate the Participant's
employment or service at any time. Except as otherwise provided in the Plan
or
this Agreement, all rights of the Participant with respect to the Option
shall
terminate upon termination of the Participant's employment or
service.
5. Termination
of Service.
(a) In
the
event of the Participant's termination of service,
the
Option may be exercised only to the extent exercisable on the date of the
Participant's Termination Date (unless the termination was for Cause), and
the
Option must be exercised,
if at
all, prior
to the first to occur of the following,
whichever shall be applicable: (i) the
close of the three-month period following the Termination Date;
or (ii)
the
close of the Option Period.
(b) If
the
service of the Participant is terminated for Cause, the Option shall lapse
and
no longer be exercisable as of the Termination Date, as determined by the
Administrator. For purposes of this Agreement, "Cause" shall mean the
Participant's termination of service resulting from the Participant's (i)
termination for "cause" as defined under the Participant's employment,
consulting or other agreement with the Corporation or an Affiliate, if any,
or
(ii) if the Participant has not entered into any such employment, consulting
or
other agreement (or if any such agreement does not address the effect of
a
"cause" termination), then the Participant's termination shall be for "Cause"
if
termination results due to the Participant's (A) dishonesty, (B) refusal
to
perform his duties for the Corporation or continued failure to perform his
duties to the Corporation in a manner acceptable to the Corporation, as
determined by the Administrator or its designee, (C) engaging in fraudulent
conduct, or (D) engaging in any conduct that could be materially damaging
to the
Corporation without a reasonable good faith belief that such conduct was
in the
best interest of the Corporation. The determination of "Cause" shall be made
by
the Administrator and its determination shall be final and conclusive. Without
in any way limiting the effect of the foregoing, for purposes of the Plan
and
this Agreement, the Participant's service shall be deemed to have terminated
for
Cause if, after the Participant's service has terminated, facts and
circumstances indicate that, in the opinion of the Administrator, the
Participant's termination was for Cause.
(c) Notwithstanding
the foregoing, if the Participant becomes an Employee, the Option shall be
subject to the provisions of Section 7(d)(iii) of the Plan.
6. Effect
of Change in Control.
(a) Notwithstanding
any other provision of the Plan to the contrary, and except as may be otherwise
provided in an employment agreement or other agreement between the Participant
and the Corporation, in the event of a Change in Control, the Option, if
outstanding as of the date of such Change in Control, shall become fully
exercisable, whether or not then otherwise exercisable.
2
(b) Notwithstanding
the foregoing, in the event that a Change in Control event occurs, then the
Administrator may, in its sole and absolute discretion, determine that the
Option shall not vest or become exercisable on an accelerated basis, if the
Corporation or the surviving or acquiring corporation, as the case may be,
shall
have taken such action, including but not limited to the assumption of Awards
granted under the Plan or the grant of substitute awards (in either case,
with
substantially similar terms or equivalent economic benefits as Awards granted
under the Plan), as the Administrator determines to be equitable or appropriate
to protect the rights and interests of Participants under the Plan. For the
purposes herein, if the Committee is acting as the Administrator authorized
to
make the determinations provided for in this Section 6(b), the Committee
shall
be appointed by the Board of Directors, two-thirds of the members of which
shall
have been Directors of the Corporation prior to the Change in Control event.
(c) The
Administrator shall have full and final authority, in its discretion, to
determine whether a Change in Control of the Corporation has occurred, the
date
of the occurrence of such Change in Control and any incidental matters relating
thereto.
7. Nontransferability
of Option.
The
Option shall not be transferable (including by sale, assignment, pledge or
hypothecation) other than by will or the laws of intestate succession, except
as
may be permitted by the Administrator in a manner consistent with the
registration provisions of the Securities Act. Except as may be permitted
by the
preceding sentence, the Option shall be exercisable during the
Participant's
lifetime only by him or her or by his or her guardian or legal representative.
The designation of a beneficiary in accordance with the Plan does not constitute
a transfer.
8. Superseding
Agreement.
This
Agreement supersedes any statements, representations or agreements of the
Corporation with respect to the grant of the Option, any other equity-based
awards or any related rights, and the Participant hereby waives any rights
or
claims related to any such statements, representations or agreements. This
Agreement does not supersede or amend any confidentiality agreement,
non-solicitation agreement, non-competition agreement, employment agreement
or
any other similar agreement between the Participant and the Corporation,
including, but not limited to, any restrictive covenants contained in such
agreements.
9. Governing
Law.
Except
as otherwise provided in the Plan or herein, this Agreement shall be construed
and enforced according to the laws of the State of North Carolina, without
regard to the conflict of laws provisions of any state, and in accordance
with
applicable federal laws of the United States.
10. Amendment
and Termination; Waiver.
Subject
to the terms of the Plan and this Section 10, this Agreement may be modified
or
amended only by the written agreement of the parties hereto. Notwithstanding
the
foregoing, the Administrator shall have unilateral authority to amend the
Plan
and this Agreement (without Participant consent) to the extent necessary
to
comply with Applicable Laws or changes to Applicable Laws (including but
not
limited to Code Section 409A and federal securities laws). The waiver by
the
Corporation of a breach of any provision of this Agreement by the Participant
shall not operate or be construed as a waiver of any subsequent breach by
the
Participant.
11. No
Rights as Shareholder.
The
Participant and his or her legal representatives, legatees or distributees
shall
not be deemed to be the holder of any of the Shares and shall not have any
rights of a shareholder unless and until certificates for such Shares have
been
issued and delivered to him or her or them.
3
12. Withholding;
Tax Matters.
(a) The
Participant acknowledges that the Corporation shall require the Participant
to
pay the Corporation in cash the amount of any local, state, federal, foreign
or
other tax or other amount required by any governmental authority to be withheld
and paid over by the Corporation to such authority for the account of the
Participant, and the Participant agrees, as a condition to the grant of the
Option and delivery of the Shares or any other benefit, to satisfy such
obligations. Notwithstanding the foregoing, the Administrator may establish
procedures to permit the Participant to satisfy such obligations in whole
or in
part, and any other local, state, federal, foreign or other income tax
obligations relating to the Option, by electing (the "election") to have
the
Corporation withhold shares of Common Stock from the Shares to which the
Participant is entitled. The number of the Shares to be withheld shall have
a
Fair Market Value as of the date that the amount of tax to be withheld is
determined as nearly equal as possible to (but not exceeding) the amount
of such
obligations being satisfied. Each election must be made in writing to the
Administrator in accordance with election procedures established by the
Administrator.
(b) The
Participant acknowledges that the Corporation has made no warranties or
representations to the Participant with respect to the tax consequences
(including but not limited to income tax consequences) related to the
transactions contemplated by this Agreement, and the Participant is in no
manner
relying on the Corporation or its representatives for an assessment of such
tax
consequences. The Participant acknowledges that there may be adverse tax
consequences upon acquisition or disposition of the Shares and that the
Participant has been advised that he or she should consult with his or her
own
attorney, accountant, and/or tax advisor regarding the decision to enter
into
this Agreement and the consequences thereof. The Participant also acknowledges
that the Corporation has no responsibility to take or refrain from taking
any
actions in order to achieve a certain tax result for the
Participant.
13. Administration.
The
authority to construe and interpret this Agreement and the Plan, and to
administer all aspects of the Plan, shall be vested in the Administrator,
and
the Administrator shall have all powers with respect to this Agreement as
are
provided in the Plan. Any interpretation of this Agreement by the Administrator
and any decision made by it with respect to this Agreement is final and
binding.
14. Notices.
Except
as may be otherwise provided by the Plan, any written notices provided for
in
this Agreement or the Plan shall be in writing and shall be deemed sufficiently
given if either hand delivered or if sent by fax or overnight courier, or
by
postage paid first class mail. Notices sent by mail shall be deemed received
three business days after mailed but in no event later than the date of actual
receipt. Notices shall be directed, if to the Participant, at the Participant's
address indicated on Schedule A (or such other address as may be designated
by
the Participant in a manner acceptable to the Administrator), or, if to the
Corporation, at the Corporation's principal office, attention Chief Financial
Officer.
15. Severability.
If any
provision of this Agreement shall be held illegal or invalid for any reason,
such illegality or invalidity shall not affect the remaining parts of this
Agreement, and this Agreement shall be construed and enforced as if the illegal
or invalid provision had not been included.
4
16. Restrictions
on Option and Shares.
(a) As
a
condition to the issuance and delivery of the Shares, or the grant of any
benefit pursuant to the Plan, the Corporation may require the Participant
or
other person to become a party to this Agreement, any agreement(s) restricting
the transfer, purchase or repurchase of shares of Common Stock, any voting
agreement(s), any employment agreement(s), any consulting agreement(s), any
non-competition agreement(s), any confidentiality agreement(s), any
non-solicitation agreement(s) and/or any other agreement(s) imposing such
restrictions as may be required by the Corporation. Without in any way limiting
the effect of the foregoing, the Participant or other holder of any of the
Shares shall be permitted to transfer such shares only if such transfer is
in
accordance with the terms of Section 15 of the Plan, this Agreement and/or
any
other applicable agreement(s). The Participant acknowledges that the acquisition
of any of the Shares by the Participant or other holder is subject to, and
conditioned upon, the agreement of the Participant or such holder to the
restrictions described in Section 15 of the Plan, this Agreement and/or any
other applicable agreement(s).
(b) The
Corporation may impose such restrictions on the Option, the Shares and/or
any
other benefits underlying the Option as it may deem advisable, including
without
limitation restrictions under the federal securities laws, the requirements
of
any stock exchange or similar organization and any blue sky, state or foreign
securities laws applicable to such securities. Notwithstanding any other
provision in the Plan or this Agreement to the contrary, the Corporation
shall
not be obligated to issue, deliver or transfer shares of Common Stock, make
any
other distribution of benefits, or take any other action, unless such delivery,
distribution or action is in compliance with Applicable Laws (including but
not
limited to the requirements of the Securities Act). The Corporation may cause
a
restrictive legend to be placed on any certificate for the Shares issued
pursuant to the exercise of the Option in such form as may be prescribed
from
time to time by Applicable Laws or as may be advised by legal counsel.
17. Counterparts;
Further Instruments.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. The parties hereto agree to execute such further instruments
and to
take such further action as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
18. Effect
of Changes in Status.
Unless
the Administrator determines otherwise, the Option shall not be affected
by any
change in the terms, conditions or status of the Participant's employment
or
service, provided that the Participant continues to be an employee of, or
in
service to, the Corporation or an Affiliate.
19. Rules
of Construction.
Headings are given to the sections of this Agreement solely as a conveni-ence
to
facilitate reference. The reference to any statute, regulation or other
provision of law shall be construed to refer to any amendment to or successor
of
such provision of law.
20. Successors
and Assigns.
This
Agreement shall be binding upon the Corporation and its successors and assigns,
and the Participant and his or her executors, administrators and permitted
transferees and beneficiaries.
21. Right
of Offset.
Notwithstanding any other provision of the Plan or this Agreement, the
Corporation may reduce the amount of any payment or benefit otherwise payable
to
or on behalf of the Participant by the amount of any obligation of the
Participant to or on behalf of the Corporation or an Affiliate that is or
becomes due and payable.
[Signatures
of the Corporation and the Participant follow on Schedule A/Grant
Notice.]
5
POKERTEK,
INC.
2007
STOCK INCENTIVE PLAN
Schedule
A/Grant Notice
1. Pursuant
to the terms and conditions of the Corporation's 2007 Stock Incentive Plan
(the
"Plan"), you (the "Participant") have been granted an option (the "Option")
to
purchase ________ shares (the "Shares") of our Common Stock as outlined
below.
|
Name
of Participant:
|
____________________________________ |
|
Address:
|
____________________________________ |
| ____________________________________ | |
| ____________________________________ | |
|
Grant
Date:
|
,
20____
____________________________________
|
|
Number
of Shares Subject to Option:
|
____________________________________ |
|
Option
Price:
|
$
____________________________________
|
|
Type
of Option:
|
Nonqualified
Stock Option
____________________________________
|
|
Expiration
Date (Last day of Option Period):
|
,
20____ ____________________________________ |
|
Vesting
Schedule/Conditions:
|
____________________________________ |
| ____________________________________ | |
| ____________________________________ |
2. By
my
signature below, I, the Participant, hereby acknowledge receipt of this Grant
Notice and the Option Agreement (the "Agreement") dated __________ ___, 200__,
between the Participant and PokerTek, Inc. (the "Corporation") which is attached
to this Grant Notice. I understand that the Grant Notice and other provisions
of
Schedule A herein are incorporated by reference into the Agreement and
constitute a part of the Agreement. By
my
signature below, I further agree to be bound by the terms of the Plan and
the
Agreement, including but not limited to the terms of this Grant Notice and
the
other provisions of Schedule A contained herein. The Corporation reserves
the
right to treat the Option and the Agreement as canceled, void and of no effect
if the Participant fails to return a signed copy of the Grant Notice within
30
days of the grant date stated above.
|
Signature:
|
____________________________________ |
Date:
|
____________________________________ | |
|
|
Participant
|
| Agreed to by: | ||
| POKERTEK, INC. | ||
|
By:
|
____________________________________ | |
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
|
Chief
Executive Officer
|
|
Attest:
| ____________________________________ | |
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Secretary
|
Note:
If there are any discrepancies in the name or address shown above, please
make
the appropriate corrections on this form. Please retain a copy of the
Agreement,
including a signed copy of this Grant Notice, for your files.
Exhibit
A-1