UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date
of Report (Date of Earliest Event Reported): July 20, 2009 (July 14,
2009)
THORIUM
POWER, LTD.
(Exact
name of registrant as specified in its charter)
Nevada
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000-28543
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91-1975651
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(State
or other jurisdiction
of
incorporation)
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(Commission
File No.)
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(IRS
Employer
Identification
No.)
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1600
Tyson’s Boulevard, Suite 550, McLean, VA 22102
(Address,
including zip code, of principal executive offices)
571.730.1200
(Registrant’s
telephone number, including area code)
Not
applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
(e) On
Ju
ly
14
, 2009
, the Compensation Committee of the
Board of Directors of
Thorium Power, Ltd
. (the “
Company”
) recommended and approved
several equity compensation
grant
s
under the Company
’
s Amended and Restated 2006 Stock Option
Plan (the
“
Plan
”
).
Seth Grae, the President, Chief
Executive Officer and director of the Company, received
a grant of
1,009,868
restricted shares
(the “
Restricted Shares”
)
of
the Company
’
s common
stock, par value $0.001 (the
“
C
ommon Stock”
), and a non-qualified
option
(an “
Option”
)
to purchase 3,386,029 shares of Common
Stock. James Guerra, the Chief Operating Officer and Chief Financial
Officer of the Company, received
a grant of 294,737
Restricted Shares and a
n
O
ption to purc
hase
988,235
shares of Common Stock.
Pursuant to these grants,
the Company entered into a Restricted Stock Grant Agreement and a Stock Option
Agreement with each of Mr. Grae and Mr. Guerra (collectively, the “
Agreements”
).
Under each respective Stock
Op
tion Agreement,
t
he Options
’
exercise price is
$
0.17
, which in accordance with the
Plan is the
average of the high bid and low asked prices of the
Common Stock as of July 13, 2009, the date prior to the date of
grant.
The Options
will
expire on July 13,
2019.
Under the terms of the respective
Agreements, t
he
Restricted Shares and
Options
are
both
subject
to a
three
-year vesting schedule.
They
will vest in
equal installments
of one-third each over a three-year period on each anniversary of the date of
grant, except that vesting will accelerate upon a change of control of the
Company, termination of the officer without cause, or the cessation of the
officer’s employment with the Company for good reason. No portion of
the Restricted Shares may be sold, transferred, assigned, pledged or otherwise
disposed of by either Mr. Grae or Mr. Guerra until such portion of the Shares
becomes vested
.
This brief description of the terms of
each
Restricted Stock Grant
Agreement
and each
Stock Optio
n Agreement
is qualified by
reference to the provisions of such Agreements, which are attached to this
report as Exhibits 10.1 through 10.4, respectively, and incorporated by
reference herein.
Item
9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit
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Description
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10.1
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Restricted Stock Grant Agreement,
dated
July 14,
2009
, between
Seth Grae and Thorium Power, Ltd.
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10.2
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Stock Option Agreement, dated
July 14,
2009
, between
Seth Grae and Thorium Power, Ltd.
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10.3
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Restricted Stock Grant
Agreeme
nt, dated
July 14,
2009
, between
James Guerra
and Thorium Power, Ltd.
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10.4
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Stock Option Agreement, dated
July 14,
2009
, between
James Guerra
and Thorium Power,
Ltd.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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THORIUM
POWER, LTD.
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Date:
July 20, 2009
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By:
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/s/ Seth Grae
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Seth
Grae
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President
and Chief Executive
Officer
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EXHIBITS
Exhibit
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Description
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10.1
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Restricted
Stock Grant Agreement, dated July 14, 2009, between Seth Grae and
Thorium
Power, Ltd.
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10.2
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Stock
Option Agreement, dated July 14, 2009, between Seth Grae and Thorium
Power, Ltd.
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10.3
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Restricted
Stock Grant Agreement, dated July 14, 2009, between James Guerra
and
Thorium Power, Ltd.
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10.4
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Stock Option Agreement, dated
July 14,
2009
, between
James Guerra
and
Thorium
Power, Ltd.
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THORIUM
POWER, LTD
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
NOTICE OF
GRANT
Name:
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Seth
Grae
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Address:
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1249
Beverly Road
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McLean,
VA 22101
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You have
been granted the number of shares (the “
Restricted
Shares
”) of restricted common stock of the Corporation (“
Restricted
Stock
”) specified below subject to the terms and conditions of the
attached Restricted Stock Grant Agreement and the Company’s the Second Amended
and Restated 2006 Stock Plan.
Date
of Grant:
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July
14, 2009
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Vesting
Commencement Date:
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July
14, 2009
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Purchase
Price per share of
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Restricted
Stock:
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$
0
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Total
Number of shares of
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Restricted
Stock Granted:
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1,009,868
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Total
Purchase Price:
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$
0
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Vesting
Schedule
:
The
shares of Restricted Stock shall vest and no longer be subject to forfeiture in
accordance with the following schedule:
The
Restricted Stock shall vest with respect to 1/3 of the total number of shares on
the first anniversary of the Vesting Commencement Date, and shall thereafter
vest with respect to 1/3 the total number of shares on each of the second and
third anniversaries of the Vesting Commencement Date.
THORIUM
POWER, LTD
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
RESTRICTED STOCK GRANT
AGREEMENT
This
RESTRICTED STOCK GRANT AGREEMENT
(“
Agreement
”),
dated as of the date specified in the Notice of Grant (which is expressly
incorporated herein and made a part hereof, the “
Notice of
Grant
”), is made by and between THORIUM POWER, LTD., a Nevada corporation
(the “
Corporation
”),
and SETH GRAE (the “
Grantee
,”
which term as used herein shall be deemed to include any successor to the
Grantee by will or by the laws of descent and distribution, unless the context
shall otherwise require).
BACKGROUND
Pursuant to the Corporation’s Second
Amended and Restated 2006 Stock Plan (the “
Plan
”),
the Corporation, acting through the Committee of the Board of Directors (if a
committee has been formed to administer the Plan) or its entire Board of
Directors (if no such committee has been formed) responsible for administering
the Plan (in either case, referred to herein as the “Committee”), approved the
issuance to the Grantee, effective as of the date set forth above, of an award
of the number of shares of Restricted Stock as is set forth in the attached
Notice of Grant (which is expressly incorporated herein and made a part hereof,
the “Notice of Grant”), upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE
, in
consideration of the mutual premises and undertakings hereinafter set forth, the
parties hereto agree as follows:
1.
Grant of
Restricted Stock
. The Corporation hereby grants to Grantee,
and Grantee hereby accepts the number of shares of Restricted Stock set forth in
the Notice of Grant.
2.
Stockholder
Rights
. Until such time as all or any part of the Restricted
Stock is forfeited to the Corporation under this Agreement, if ever, Grantee (or
any successor in interest) shall have the rights of a stockholder (including
voting rights) with respect to the Restricted Stock that has been issued,
including the Restricted Stock that has been issued, but not yet vested,
subject, however, to the transfer restrictions of Section 3.
3.
Vesting
of Restricted Stock
.
(a) The
shares of Restricted Stock shall be restricted and subject to forfeiture
pursuant to Section 4 until vested pursuant to this Section 3 or Section
6(b). The shares of Restricted Stock shall vest, and no longer be
subject to forfeiture, (such shares of Restricted Stock becoming “
Vested
Shares
”) in accordance with the vesting schedule set forth in the Notice
of Grant. All shares of Restricted Stock which have not become Vested
Shares are hereinafter sometimes referred to as “
Nonvested
Shares
.”
(b) The
Grantee acknowledges that the vesting of the foregoing shares of Restricted
Stock may create significant income tax liability to the Grantee and has
reviewed and understands Section 8 of this Agreement.
(c) Nonvested
Shares may not be sold, transferred, assigned, pledged, or otherwise disposed
of, directly or indirectly.
4.
Forfeiture
of Shares
. Except as provided for accelerated vesting in the
Notice of Grant, at such time as Grantee employment or other relationship with
the Corporation ceases for any reason, including death or disability, then, in
such event, any Nonvested Shares shall be automatically forfeited to the
Corporation unless the Corporation otherwise notifies the Grantee. Upon notice
from the Corporation of such forfeiture, the Grantee shall immediately return to
the Corporation any stock certificate that evidences Nonvested Shares and shall
execute any and all such documents and instruments to allow the Corporation to
reacquire the forfeited shares.
5.
Legend
. All
stock certificates evidencing the Nonvested Shares shall be imprinted with a
legend substantially as follows:
“THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
AGAINST TRANSFER AND FORFEITURE, AS SET FORTH IN A RESTRICTED STOCK GRANT
AGREEMENT DATED JULY 14, 2009. TRANSFER OF THESE SHARES MAY BE MADE ONLY IN
COMPLIANCE WITH THE PROVISIONS OF SAID AGREEMENT, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICE OF THE CORPORATION.”
6.
Recapitalizations,
Exchanges, Mergers, Etc.
(a) The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all shares of capital stock of the Corporation or
successor of the Corporation which may be issued in respect of, in exchange for,
or in substitution for the Restricted Stock by reason of any stock dividend,
split, reverse split, combination, recapitalization, reclassification, merger,
consolidation or otherwise which does not terminate this
Agreement. Except as otherwise provided herein, this Agreement is not
intended to confer upon any other person except the parties hereto any rights or
remedies hereunder. In addition, without limiting the accelerated
vesting provision contained in the Notice of Grant, in the event of a business
combination, sale of all or substantially all of the Corporation’s assets,
recapitalization or similar event, the Board of Directors of the Corporation
shall have the right to make an equitable adjustment to the terms of this
Agreement and to provide for substitute property (including cash or other
securities) in lieu of, or in exchange for, the Restricted Stock granted
hereunder.
(b) Without
limiting the accelerated vesting provision contained in the Notice of Grant, any
adjustments made under this Section 6 will be made by the Board of Directors,
whose determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive. No fractional shares
will be issued on account of any such adjustments.
7.
No
Employment Contract Created
. The issuance of the shares of
Restricted Stock shall not be construed as granting to Grantee any right with
respect to continuance of employment or any other business relationship by the
Corporation or any of its Subsidiaries. The right of the Corporation
or any of its Subsidiaries to terminate at will Grantee's employment or
terminate a business relationship with the Grantee at any time (whether by
dismissal, discharge or otherwise), with or without cause, is specifically
reserved, subject to any other written employment or other agreement to which
the Corporation and Grantee may be a party.
8.
Section
83(b) Election
. Grantee understands that under Section 83 of
the Internal Revenue Code of 1986, as amended (the “
Code
”),
the excess of the fair market value of the shares of Restricted Stock on the
date any forfeiture restrictions applicable to such shares of Restricted Stock
lapse over the purchase price paid for such shares of Restricted Stock will be
reportable as ordinary income at that time. Grantee understands,
however, that Grantee may elect to be taxed at the time the shares of Restricted
Stock are acquired hereunder, rather than when and as such shares of Restricted
Stock cease to be subject to such forfeiture restrictions, by filing an election
under Section 83(b) of the Code with the Internal Revenue Service within thirty
(30) days after the date of this Agreement. GRANTEE ACKNOWLEDGES THAT IT IS
GRANTEE'S SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A TIMELY
ELECTION UNDER SECTION 83(b), EVEN IF GRANTEE REQUESTS THE CORPORATION OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON GRANTEE’S BEHALF.
9.
Tax
Witholding
. The Corporation shall be entitled to withhold from
Grantee’s compensation any amounts necessary to satisfy applicable tax
withholding with respect to the grant and vesting of the shares of Restricted
Stock.
10.
Interpretation
. The
shares of Restricted Stock are being issued pursuant to the terms of the Plan,
and shall in all respects be interpreted in accordance therewith.
11.
Notices
.
All notices or
other communications which are required or permitted hereunder shall be in
writing and sufficient if (i) personally delivered or sent by telecopy, (ii)
sent by nationally-recognized overnight courier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Grantee, to the address (or
telecopy number) set forth on the Notice of Grant; and
if to the Corporation, to its principal
executive office as specified in any report filed by the Corporation with the
Securities and Exchange Commission or to such address as the Corporation may
have specified to the Grantee in writing, Attention: Corporate
Secretary;
or to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, or when telecopied, if telecopied, (ii) on the first
Business Day (as hereinafter defined) after dispatch, if sent by
nationally-recognized overnight courier and (iii) on the third Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, “
Business
Day
” means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.
12.
Specific
Performance
. Grantee expressly agrees that the Corporation
will be irreparably damaged if the provisions of this Agreement are not
specifically enforced. Upon a breach or threatened breach of the
terms, covenants and/or conditions of this Agreement by the Grantee, the
Corporation shall, in addition to all other remedies, be entitled to a temporary
or permanent injunction, without showing any actual damage, and/or decree for
specific performance, in accordance with the provisions hereof and
thereof.
13.
No
Waiver
.
No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of like or different
nature.
14.
Grantee
Undertaking
.
The Grantee
hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Grantee pursuant to the express
provisions of this Agreement.
15.
Modification
of Rights
.
The rights of the
Grantee are subject to modification and termination in certain events as
provided in the Plan and this Agreement.
16.
Governing
Law
.
This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Nevada applicable to contracts made and to be wholly performed therein, without
giving effect to its conflicts of laws principles.
17.
Counterparts;
Facsimile Execution
.
This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding execution and delivery for all purposes.
18.
Entire
Agreement
.
This Agreement
(including the Notice of Grant) and the Plan constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
19.
Severability
.
In the event one
or more of the provisions of this Agreement should, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
20.
WAIVER OF
JURY TRIAL
.
THE GRANTEE
HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
[signature
page follows]
IN WITNESS WHEREOF
, the
parties hereto have executed this Restricted Share Grant Agreement as of the
date first written above.
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By:
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/s/
Seth Grae
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Name:
Seth Grae
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Title:
President and Chief Executive Officer
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GRANTEE:
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Name:
Seth
Grae
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THORIUM
POWER, LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
NOTICE OF
GRANT
Capitalized
but otherwise undefined terms in this Notice of Grant and the attached Stock
Option Agreement shall have the same defined meanings as in the Second Amended
and Restated 2006 Stock Plan (the “Plan”).
Name:
Seth Grae
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Address:
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1249
Beverly Road
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McLean,
VA 22101
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You have
been granted an option (the “Option”) to purchase Common Stock of the
Corporation, subject to the terms and conditions of the Plan and the attached
Stock Option Agreement, as follows:
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Date
of Grant:
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July
14, 2009
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Vesting
Commencement Date:
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July
14, 2009
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Option
Price per Share:
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$0.17
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Total
Number of Shares Granted:
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3,386,029
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Total
Option Price:
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$575,624.93
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Type
of Option:
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¨
Incentive Stock Option
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x
Nonqualified
Stock Option
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Term/Expiration
Date:
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Ten
(10) years after Date of Grant
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Vesting
Schedule
:
The
Option shall vest, in whole or in part, in accordance with the following
schedule:
The
Option shall vest with respect to 1/3 of the Total Number of Shares Granted (as
specified above) on the first anniversary of the Vesting Commencement Date and
shall thereafter vest 1/3 on each of the second and third anniversaries of the
Vesting Commencement Date.
THORIUM
POWER, LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
STOCK OPTION
AGREEMENT
This
STOCK OPTION AGREEMENT
(“Agreement”), dated as of the 14th day of July, 2009 is made by and
between THORIUM POWER, LTD., a Nevada corporation (the “Corporation”), and SETH
GRAE (the “Optionee,” which term as used herein shall be deemed to include any
successor to the Optionee by will or by the laws of descent and distribution,
unless the context shall otherwise require).
BACKGROUND
Pursuant to the Corporation’s Second
Amended and Restated 2006 Stock Plan (the “Plan”), the Corporation, acting
through the Committee of the Board of Directors (if a committee has been formed
to administer the Plan) or its entire Board of Directors (if no such committee
has been formed) responsible for administering the Plan (in either case,
referred to herein as the “Committee”), approved the issuance to the Optionee,
effective as of the date set forth above, of a stock option to purchase shares
of Common Stock of the Corporation at the price (the “Option Price”) set forth
in the attached Notice of Grant (which is expressly incorporated herein and made
a part hereof, the “Notice of Grant”), upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE
, in
consideration of the mutual premises and undertakings hereinafter set forth, the
parties hereto agree as follows:
1.
Option;
Option Price
. On behalf of the Corporation, the Committee
hereby grants to the Optionee the option (the “Option”) to purchase, subject to
the terms and conditions of this Agreement and the Plan (which is incorporated
by reference herein and which in all cases shall control in the event of any
conflict with the terms, definitions and provisions of this Agreement), that
number of shares of Common Stock of the Corporation set forth in the Notice of
Grant, at an exercise price per share equal to the Option Price as is set forth
in the Notice of Grant (the “Optioned Shares”). If designated in the
Notice of Grant as an “incentive stock option,” the Option is intended to
qualify for Federal income tax purposes as an “incentive stock option” within
the meaning of Section 422 of the Code. A copy of the Plan as in
effect on the date hereof has been supplied to the Optionee, and the Optionee
hereby acknowledges receipt thereof.
2.
Term
.
The term (the
“Option Term”) of the Option shall commence on the date of this Agreement and
shall expire on the Expiration Date set forth in the Notice of Grant unless such
Option shall theretofore have been terminated in accordance with the terms of
the Notice of Grant, this Agreement or of the Plan.
3.
Time of
Exercise
.
(a) Unless
accelerated in the discretion of the Committee or as otherwise provided herein,
the Option shall become exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Grant. Subject to the
provisions of Sections 5 and 8 hereof, shares as to which the Option becomes
exercisable pursuant to the foregoing provisions may be purchased at any time
thereafter prior to the expiration or termination of the Option.
(b) Anything
contained in this Agreement to the contrary notwithstanding, to the extent the
Option is intended to be an Incentive Stock Option, the Option shall not be
exercisable as an Incentive Stock Option, and shall be treated as a
Non-Statutory Option, to the extent that the aggregate Fair Market Value on the
date hereof of all stock with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
the Plan and all other plans of the Corporation, its parent and its
subsidiaries, if any) exceeds $100,000.
4.
Termination
of Option
.
(a)
The Optionee may exercise the Option (but only to the extent the Option was
exercisable at the time of termination of the Optionee’s consulting agreement
with the Corporation, its parent or any of its subsidiaries) at any time within
three (3) months following the termination of the Optionee’s business
relationship with the Corporation, its parent or any of its subsidiaries, but
not later than the scheduled expiration date. If the termination of
the Optionee’s employment is for cause or is otherwise attributable to a breach
by the Optionee of an employment, non-competition, non-disclosure or other
material agreement, the Option shall expire immediately upon such
termination. If the Optionee is a natural person who dies while in a
business relationship with the Corporation, its parent or any of its
subsidiaries, this option may be exercised, to the extent of the number of
shares with respect to which the Optionee could have exercised it on the date of
his death, by his estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 9 of the Plan, at any time within
the twelve (12) month period following the date of death. If the
Optionee is a natural person whose business relationship with the Corporation,
its parent or any of its subsidiaries is terminated by reason of his disability,
this Option may be exercised, to the extent of the number of shares with respect
to which the Optionee could have exercised it on the date the business
relationship was terminated, at any time within the twelve (12) month period
following the date of such termination, but not later than the scheduled
expiration date. At the expiration of such three (3) or twelve (12)
month period or the scheduled expiration date, whichever is the earlier, this
Option shall terminate and the only rights hereunder shall be those as to which
the Option was properly exercised before such termination.
(b) Anything
contained herein to the contrary notwithstanding, the Option shall not be
affected by any change of duties or position of the Optionee (including a
transfer to or from the Corporation, its parent or any of its subsidiaries) so
long as the Optionee continues in a business relationship with the Corporation,
its parent or any of its subsidiaries.
5.
Procedure
for Exercise
.
(a) The
Option may be exercised, from time to time, in whole or in part (but for the
purchase of whole shares only), by delivery of a written notice in the form
attached as
Exhibit
A
hereto (the “Notice”) from the Optionee to the Secretary of the
Corporation, which Notice shall:
(i) state
that the Optionee elects to exercise the Option;
(ii) state
the number of shares with respect to which the Option is being exercised (the
“Optioned Shares”);
(iii) state
the method of payment for the Optioned Shares pursuant to Section
5(b);
(iv) state
the date upon which the Optionee desires to consummate the purchase of the
Optioned Shares (which date must be prior to the termination of such Option and
no later than 30 days from the delivery of such Notice);
(v)
include any representations of the Optionee required
under Section 8(b);
(vi) if
the Option shall be exercised in accordance with Section 9 of the Plan by any
person other than the Optionee, include evidence to the satisfaction of the
Committee of the right of such person to exercise the Option; and
(b) Payment
of the Option Price for the Optioned Shares shall be made either (i) by delivery
of cash or a check to the order of the Corporation in an amount equal to the
Option Price, (ii) if approved by the Committee, by delivery to the Corporation
of shares of Common Stock of the Corporation having a Fair Market Value on the
date of exercise equal in amount to the Option Price of the options being
exercised, (iii) by any other means which the Board of Directors determines are
consistent with the purpose of the Plan and with applicable laws and regulations
(including, without limitation, the provisions of Rule 16b-3 and Regulation T
promulgated by the Federal Reserve Board), or (iv) by any combination of such
methods of payment.
Notwithstanding any provisions herein
to the contrary, if the Fair Market Value of one share of Common Stock of the
Corporation is greater than the Option Price (at the date of calculation as set
forth below), in lieu of paying the Option Price in cash, the Optionee may elect
to receive shares equal to the value (as determined below) of the Optioned
Shares by delivering notice of such election to the Corporation in which event
the Corporation shall issue to the Optionee a number of shares of Common Stock
computed using the following formula:
X =
Y(A-B)
|
A
|
|
|
|
|
Where
|
X
=
|
the
number of shares of Common Stock to be issued to the
Optionee
|
|
|
|
|
Y
=
|
the
number of Optioned
Shares
|
|
A
=
|
the
Fair Market Value of one share of Common Stock (at the date of such
calculation)
|
|
|
|
|
B
=
|
Option
Price (as adjusted to the date of such
calculation)
|
(c) The
Corporation shall issue a stock certificate in the name of the Optionee (or such
other person exercising the Option in accordance with the provisions of Section
9 of the Plan) for the Optioned Shares as soon as practicable after receipt of
the Notice and payment of the aggregate Option Price for such
shares.
6.
No Rights
as a Stockholder
.
The Optionee
shall not have any privileges of a stockholder of the Corporation with respect
to any Optioned Shares until the date of issuance of a stock certificate
pursuant to Section 5(c).
7.
Adjustments
.
The Plan contains provisions
covering the treatment of options in a number of contingencies such as stock
splits and mergers. Provisions in the Plan for adjustment with
respect to stock subject to options and the related provisions with respect to
successors to the business of the Corporation are hereby made applicable
hereunder and are incorporated herein by reference. In general, the
Optionee should not assume that options would survive the acquisition of the
Corporation.
8.
Additional
Provisions Related to Exercise
.
(a) The
Option shall be exercisable only on such date or dates and during such period
and for such number of shares of Common Stock as are set forth in this
Agreement.
(b) To
exercise the Option, the Optionee shall follow the procedures set forth in
Section 5 hereof. Upon the exercise of the Option at a time when
there is not in effect a registration statement under the Securities Act of
1933, as amended (the “Securities Act”), relating to the shares of Common Stock
issuable upon exercise of the Option, the Committee in its discretion may, as a
condition to the exercise of the Option, require the Optionee (i) to execute an
Investment Representation Statement substantially in the form set forth in
Exhibit B
hereto and
(ii) to make such other representations and warranties as are deemed appropriate
by counsel to the Corporation.
(c) Stock
certificates representing shares of Common Stock acquired upon the exercise of
Options that have not been registered under the Securities Act shall, if
required by the Committee, bear an appropriate restrictive legend referring to
the Securities Act. No shares of Common Stock shall be issued and
delivered upon the exercise of the Option unless and until the Corporation
and/or the Optionee shall have complied with all applicable Federal or state
registration, listing and/or qualification requirements and all other
requirements of law or of any regulatory agencies having
jurisdiction.
9.
No
Evidence of Employment or Service
.
Nothing contained
in the Plan or this Agreement shall confer upon the Optionee any right to
continue in a business relationship with the Corporation, its parent or any of
its subsidiaries or interfere in any way with the right of the Corporation, its
parent or its subsidiaries (subject to the terms of any separate agreement to
the contrary) to terminate the Optionee’s business relationship or to increase
or decrease the Optionee’s compensation at any time.
10.
Restriction
on Transfer
.
The Option may
not be transferred, pledged, assigned, hypothecated or otherwise disposed of in
any way by the Optionee, except by will or by the laws of descent and
distribution, and may be exercised during the lifetime of the Optionee only by
the Optionee. If the Optionee dies, the Option shall thereafter be
exercisable, during the period specified in Section 4, by his executors or
administrators to the full extent to which the Option was exercisable by the
Optionee at the time of his death. The Option shall not be subject to
execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary to
the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without
effect. The words “transfer” and “dispose” include without limitation
the making of any sale, exchange, assignment, gift, security interest, pledge or
other encumbrance, or any contract therefor, any voting trust or other agreement
or arrangement with respect to the transfer of any interest, beneficial or
otherwise, in the Option, the creation of any other claim thereto or any other
transfer or disposition whatsoever, whether voluntary or involuntary, affecting
the right, title, interest or possession with respect to the
Option.
11.
Specific
Performance
. Optionee expressly agrees that the Corporation
will be irreparably damaged if the provisions of this Agreement and the Plan are
not specifically enforced. Upon a breach or threatened breach of the
terms, covenants and/or conditions of this Agreement or the Plan by the
Optionee, the Corporation shall, in addition to all other remedies, be entitled
to a temporary or permanent injunction, without showing any actual damage,
and/or decree for specific performance, in accordance with the provisions hereof
and thereof. The Board of Directors shall have the power to determine
what constitutes a breach or threatened breach of this Agreement or the
Plan. Any such determinations shall be final and conclusive and
binding upon the Optionee.
12.
Disqualifying
Dispositions
. To the extent the Option is intended to be an
Incentive Stock Option, and if the Optioned Shares are disposed of within two
years following the date of this Agreement or one year following the issuance
thereof to the Optionee (a “Disqualifying Disposition”), the Optionee shall,
immediately prior to such Disqualifying Disposition, notify the Corporation in
writing of the date and terms of such Disqualifying Disposition and provide such
other information regarding the Disqualifying Disposition as the Corporation may
reasonably require.
13.
Notices
.
All notices or
other communications which are required or permitted hereunder shall be in
writing and sufficient if (i) personally delivered or sent by telecopy, (ii)
sent by nationally-recognized overnight courier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Optionee, to the
address (or telecopy number) set forth on the Notice of Grant; and
if to the Corporation, to its
principal executive office as specified in any report filed by the Corporation
with the Securities and Exchange Commission or to such address as the
Corporation may have specified to the Optionee in writing, Attention: Corporate
Secretary.
or to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, or when telecopied, if telecopied, (ii) on the first
Business Day (as hereinafter defined) after dispatch, if sent by
nationally-recognized overnight courier and (iii) on the third Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, “Business Day” means a day
that is not a Saturday, Sunday or a day on which banking institutions in the
city to which the notice or communication is to be sent are not required to be
open.
14.
No
Waiver
.
No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of like or different
nature.
15.
Optionee
Undertaking
.
The Optionee
hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Optionee pursuant to the express
provisions of this Agreement.
16.
Modification
of Rights
.
The rights of the
Optionee are subject to modification and termination in certain events as
provided in this Agreement and the Plan.
17.
Governing
Law
.
This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Nevada applicable to contracts made and to be wholly performed therein, without
giving effect to its conflicts of laws principles.
18.
Counterparts;
Facsimile Execution
.
This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding execution and delivery for all purposes.
19.
Entire
Agreement
.
This Agreement
(including the Notice of Grant) and the Plan, and, upon execution, the Notice
and Investment Representation Statement, constitute the entire agreement between
the parties with respect to the subject matter hereof, and supersede all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
20.
Severability
.
In the event one
or more of the provisions of this Agreement should, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
21.
WAIVER OF
JURY TRIAL
.
THE OPTIONEE
HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
22.
Section
409A Status
.
This option is
not intended to result in a deferral of compensation within the meaning of Code
section 409A, and shall be interpreted in a manner consistent with avoiding the
deferral of compensation. If any provision of this agreement would
result in the deferral of compensation within the meaning of section 409A, the
parties agree to amend that provision to avoid the application of section
409A.
[signature
page follows]
IN WITNESS WHEREOF
, the
parties hereto have executed this Option Agreement as of the date first written
above.
|
|
|
|
|
|
|
By:
|
/s/ Seth Grae
|
|
|
Name:
Seth Grae
|
|
|
Title:
President and Chief Executive Officer
|
|
|
|
|
|
Optionee:
|
|
|
|
|
|
|
|
|
|
Name:
Seth Grae
|
|
NOTE RE:
EXHIBITS
EXHIBITS
A AND B ARE TO BE SIGNED
WHEN OPTIONS ARE
EXERCISED,
NOT WHEN OPTION AGREEMENT IS
SIGNED
.
EXHIBIT
A
THORIUM
POWER, LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
EXERCISE
NOTICE
Thorium
Power, Ltd.
Attention: Chief
Executive Officer
1.
Exercise of
Option
. Effective as of today, _______________________, 20__ ,
the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option
to purchase ________________ shares of the Common Stock (the
“Shares”) of Thorium Power, Ltd. (the “Corporation”) under and pursuant to the
Second Amended and Restated 2006 Stock Plan (the “Plan”) and the Stock Option
Agreement dated July 14, 2009 (the “Stock Option Agreement”), with the purchase
of the Shares to be consummated on ______________ ___, ____ (the “Effective
Date”), which date is prior to the termination of the Option and no later than
30 days from the date of delivery of this Notice.
2.
Representations of the
Optionee
. The Optionee acknowledges that the Optionee has
received, read and understood the Plan and the Stock Option Agreement and agrees
to abide by and be bound by their terms and conditions.
3.
Rights as Shareholder;
Shares Subject to Stockholders Agreement
. Until the stock
certificate evidencing such Shares is issued (as evidenced by the appropriate
entry on the books of the Corporation or of a duly authorized transfer agent of
the Corporation), no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Shares, notwithstanding the exercise
of the Option. The Corporation shall issue (or cause to be issued)
such stock certificate promptly after the Effective Date, provided the
applicable price has been paid and the required documents have been
received. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as otherwise provided in the Plan. Unless waived by the
Corporation in writing, the Shares shall automatically become subject to the
terms and conditions of any stockholders agreement or similar agreement to which
a majority of the outstanding capital stock of the Corporation is subject at the
time of exercise and the Optionee shall sign as a condition to the issuance of
the Shares such joinder agreement, signature pages or other documents in order
to evidence the Optionee’s agreement to be so bound.
4.
Tax
Consultation
. The Optionee understands that the Optionee may
suffer adverse tax consequences as a result of the Optionee’s purchase or
disposition of the Shares. The Optionee represents that the Optionee
has consulted with any tax consultants the Optionee deems advisable in
connection with the purchase or disposition of the Shares and that the Optionee
is not relying on the Corporation for any tax advice.
5.
Successors and
Assigns
. The Corporation may assign any of its rights under
the Stock Option Agreement to single or multiple assignees (who may be
stockholders, officers, directors, employees or consultants of the Corporation),
and this Agreement shall inure to the benefit of the successors and assigns of
the Corporation. Subject to the restrictions on transfer set forth in
the Stock Option Agreement, this Agreement shall be binding upon the Optionee
and his or her heirs, executors, administrators, successors and
assigns.
6.
Interpretation
. Any
dispute regarding the interpretations of this Agreement shall be submitted by
the Optionee or by the Corporation forthwith to the Committee, which shall
review such dispute at its next regular meeting. The resolution of
such a dispute by the Committee shall be final and binding on the Corporation
and on the Optionee.
7.
Governing Laws:
Severability
. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be wholly performed therein, without giving effect to its
conflicts of laws principles. Should any provision of this Agreement
be determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain
enforceable.
8.
Notices
. Any
notice required or permitted hereunder shall be given in writing and shall be
deemed effectively given if given in the manner specified in the Stock Option
Agreement.
9.
Further
Instruments
. The parties 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.
10.
Delivery of
Payment
. The Optionee herewith delivers to the Corporation the
full Option Price for the Shares.
11.
Entire
Agreement
. The Plan, the Notice of Grant, and the Stock Option
Agreement are incorporated herein by reference. This Agreement, the
Plan, the Notice of Grant, the Stock Option Agreement, and the Investment
Representation Statement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings and agreements of the
Corporation and the Optionee with respect to the subject matter
hereof.
Submitted
by:
|
Accepted
by:
|
|
|
|
|
OPTIONEE:
|
THORIUM
POWER, LTD.
|
|
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By:
|
|
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|
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___________________________
|
Its:
|
|
|
Name:
|
|
|
|
EXHIBIT
B
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
INVESTMENT REPRESENTATION
STATEMENT
OPTIONEE
|
:
|
|
|
|
|
|
|
CORPORATION
|
:
|
THORIUM
POWER, LTD.
|
|
|
|
|
|
SECURITY
|
:
|
Common
Stock
|
|
|
|
|
|
AMOUNT
|
:
|
|
|
|
|
|
|
DATE
|
:
|
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In
connection with the purchase of the above-listed Securities, the undersigned
Optionee represents to the Corporation the following:
(a) The
Optionee is aware of the Corporation’s business affairs and financial condition
and has acquired sufficient information about the Corporation to reach an
informed and knowledgeable decision to acquire the Securities. The
Optionee is acquiring these Securities for investment for the Optionee’s own
account only and not with a view to, or for resale in connection with, a
“distribution” thereof within the meaning of the Securities Act of 1933, as
amended (the “Securities Act”).
(b) The
Optionee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Optionee’s
investment intent as expressed herein. In this connection, the
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if the
Optionee’s representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. The Optionee further understands that the
Securities must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. The Optionee further acknowledges and understands that the
Corporation is under no obligation to register the Securities. The
Optionee understands that the certificate evidencing the Securities will be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel satisfactory to the Corporation and other legends required under the
applicable state or federal securities laws.
Signature
of Optionee: _____________________________
[_________________]
Date:__________________
THORIUM
POWER, LTD
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
NOTICE OF
GRANT
Name:
James
Guerra
|
Address:
423
Cumnor
Road
|
|
|
Kenilworth,
IL 60043
|
|
You have
been granted the number of shares (the “
Restricted
Shares
”) of restricted common stock of the Corporation (“
Restricted
Stock
”) specified below subject to the terms and conditions of the
attached Restricted Stock Grant Agreement and the Company’s the Second Amended
and Restated 2006 Stock Plan.
Date
of Grant:
|
|
July 14, 2009
|
|
|
|
Vesting
Commencement Date:
|
|
July 14, 2009
|
|
|
|
Purchase
Price per share of
|
|
|
Restricted
Stock:
|
|
$0
|
|
|
|
Total
Number of shares of
|
|
|
Restricted
Stock Granted:
|
|
294,737
|
|
|
|
Total
Purchase Price:
|
|
$0
|
Vesting
Schedule
:
The
shares of Restricted Stock shall vest and no longer be subject to forfeiture in
accordance with the following schedule:
The
Restricted Stock shall vest with respect to 1/3 of the total number of shares on
the first anniversary of the Vesting Commencement Date, and shall thereafter
vest with respect to 1/3 the total number of shares on each of the second and
third anniversaries of the Vesting Commencement Date.
THORIUM
POWER, LTD
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
RESTRICTED STOCK GRANT
AGREEMENT
This
RESTRICTED STOCK GRANT AGREEMENT
(“
Agreement
”),
dated as of the date specified in the Notice of Grant (which is expressly
incorporated herein and made a part hereof, the “
Notice of
Grant
”), is made by and between THORIUM POWER, LTD., a Nevada corporation
(the “
Corporation
”),
and JAMES GUERRA (the “
Grantee
,”
which term as used herein shall be deemed to include any successor to the
Grantee by will or by the laws of descent and distribution, unless the context
shall otherwise require).
BACKGROUND
Pursuant to the Corporation’s Second
Amended and Restated 2006 Stock Plan (the “
Plan
”),
the Corporation, acting through the Committee of the Board of Directors (if a
committee has been formed to administer the Plan) or its entire Board of
Directors (if no such committee has been formed) responsible for administering
the Plan (in either case, referred to herein as the “Committee”), approved the
issuance to the Grantee, effective as of the date set forth above, of an award
of the number of shares of Restricted Stock as is set forth in the attached
Notice of Grant (which is expressly incorporated herein and made a part hereof,
the “Notice of Grant”), upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE
, in
consideration of the mutual premises and undertakings hereinafter set forth, the
parties hereto agree as follows:
1.
Grant of
Restricted Stock
. The Corporation hereby grants to Grantee,
and Grantee hereby accepts the number of shares of Restricted Stock set forth in
the Notice of Grant.
2.
Stockholder
Rights
. Until such time as all or any part of the Restricted
Stock is forfeited to the Corporation under this Agreement, if ever, Grantee (or
any successor in interest) shall have the rights of a stockholder (including
voting rights) with respect to the Restricted Stock that has been issued,
including the Restricted Stock that has been issued, but not yet vested,
subject, however, to the transfer restrictions of Section 3.
3.
Vesting
of Restricted Stock
.
(a) The
shares of Restricted Stock shall be restricted and subject to forfeiture
pursuant to Section 4 until vested pursuant to this Section 3 or Section
6(b). The shares of Restricted Stock shall vest, and no longer be
subject to forfeiture, (such shares of Restricted Stock becoming “
Vested
Shares
”) in accordance with the vesting schedule set forth in the Notice
of Grant. All shares of Restricted Stock which have not become Vested
Shares are hereinafter sometimes referred to as “
Nonvested
Shares
.”
(b) The
Grantee acknowledges that the vesting of the foregoing shares of Restricted
Stock may create significant income tax liability to the Grantee and has
reviewed and understands Section 8 of this Agreement.
(c) Nonvested
Shares may not be sold, transferred, assigned, pledged, or otherwise disposed
of, directly or indirectly.
4.
Forfeiture
of Shares
. Except as provided for accelerated vesting in the
Notice of Grant, at such time as Grantee employment or other relationship with
the Corporation ceases for any reason, including death or disability, then, in
such event, any Nonvested Shares shall be automatically forfeited to the
Corporation unless the Corporation otherwise notifies the Grantee. Upon notice
from the Corporation of such forfeiture, the Grantee shall immediately return to
the Corporation any stock certificate that evidences Nonvested Shares and shall
execute any and all such documents and instruments to allow the Corporation to
reacquire the forfeited shares.
5.
Legend
. All
stock certificates evidencing the Nonvested Shares shall be imprinted with a
legend substantially as follows:
“THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
AGAINST TRANSFER AND FORFEITURE, AS SET FORTH IN A RESTRICTED STOCK GRANT
AGREEMENT DATED JULY 14, 2009. TRANSFER OF THESE SHARES MAY BE MADE ONLY IN
COMPLIANCE WITH THE PROVISIONS OF SAID AGREEMENT, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICE OF THE CORPORATION.”
6.
Recapitalizations,
Exchanges, Mergers, Etc.
(a) The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all shares of capital stock of the Corporation or
successor of the Corporation which may be issued in respect of, in exchange for,
or in substitution for the Restricted Stock by reason of any stock dividend,
split, reverse split, combination, recapitalization, reclassification, merger,
consolidation or otherwise which does not terminate this
Agreement. Except as otherwise provided herein, this Agreement is not
intended to confer upon any other person except the parties hereto any rights or
remedies hereunder. In addition, without limiting the accelerated
vesting provision contained in the Notice of Grant, in the event of a business
combination, sale of all or substantially all of the Corporation’s assets,
recapitalization or similar event, the Board of Directors of the Corporation
shall have the right to make an equitable adjustment to the terms of this
Agreement and to provide for substitute property (including cash or other
securities) in lieu of, or in exchange for, the Restricted Stock granted
hereunder.
(b) Without
limiting the accelerated vesting provision contained in the Notice of Grant, any
adjustments made under this Section 6 will be made by the Board of Directors,
whose determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive. No fractional shares
will be issued on account of any such adjustments.
7.
No
Employment Contract Created
. The issuance of the shares of
Restricted Stock shall not be construed as granting to Grantee any right with
respect to continuance of employment or any other business relationship by the
Corporation or any of its Subsidiaries. The right of the Corporation
or any of its Subsidiaries to terminate at will Grantee's employment or
terminate a business relationship with the Grantee at any time (whether by
dismissal, discharge or otherwise), with or without cause, is specifically
reserved, subject to any other written employment or other agreement to which
the Corporation and Grantee may be a party.
8.
Section
83(b) Election
. Grantee understands that under Section 83 of
the Internal Revenue Code of 1986, as amended (the “
Code
”),
the excess of the fair market value of the shares of Restricted Stock on the
date any forfeiture restrictions applicable to such shares of Restricted Stock
lapse over the purchase price paid for such shares of Restricted Stock will be
reportable as ordinary income at that time. Grantee understands,
however, that Grantee may elect to be taxed at the time the shares of Restricted
Stock are acquired hereunder, rather than when and as such shares of Restricted
Stock cease to be subject to such forfeiture restrictions, by filing an election
under Section 83(b) of the Code with the Internal Revenue Service within thirty
(30) days after the date of this Agreement. GRANTEE ACKNOWLEDGES THAT IT IS
GRANTEE'S SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A TIMELY
ELECTION UNDER SECTION 83(b), EVEN IF GRANTEE REQUESTS THE CORPORATION OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON GRANTEE’S BEHALF.
9.
Tax
Witholding
. The Corporation shall be entitled to withhold from
Grantee’s compensation any amounts necessary to satisfy applicable tax
withholding with respect to the grant and vesting of the shares of Restricted
Stock.
10.
Interpretation
. The
shares of Restricted Stock are being issued pursuant to the terms of the Plan,
and shall in all respects be interpreted in accordance therewith.
11.
Notices
.
All notices or
other communications which are required or permitted hereunder shall be in
writing and sufficient if (i) personally delivered or sent by telecopy, (ii)
sent by nationally-recognized overnight courier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Grantee, to the address (or
telecopy number) set forth on the Notice of Grant; and
if to the Corporation, to its principal
executive office as specified in any report filed by the Corporation with the
Securities and Exchange Commission or to such address as the Corporation may
have specified to the Grantee in writing, Attention: Corporate
Secretary;
or to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, or when telecopied, if telecopied, (ii) on the first
Business Day (as hereinafter defined) after dispatch, if sent by
nationally-recognized overnight courier and (iii) on the third Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, “
Business
Day
” means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.
12.
Specific
Performance
. Grantee expressly agrees that the Corporation
will be irreparably damaged if the provisions of this Agreement are not
specifically enforced. Upon a breach or threatened breach of the
terms, covenants and/or conditions of this Agreement by the Grantee, the
Corporation shall, in addition to all other remedies, be entitled to a temporary
or permanent injunction, without showing any actual damage, and/or decree for
specific performance, in accordance with the provisions hereof and
thereof.
13.
No
Waiver
.
No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of like or different
nature.
14.
Grantee
Undertaking
.
The Grantee
hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Grantee pursuant to the express
provisions of this Agreement.
15.
Modification
of Rights
.
The rights of the
Grantee are subject to modification and termination in certain events as
provided in the Plan and this Agreement.
16.
Governing
Law
.
This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Nevada applicable to contracts made and to be wholly performed therein, without
giving effect to its conflicts of laws principles.
17.
Counterparts;
Facsimile Execution
.
This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding execution and delivery for all purposes.
18.
Entire
Agreement
.
This Agreement
(including the Notice of Grant) and the Plan constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
19.
Severability
.
In the event one
or more of the provisions of this Agreement should, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
20.
WAIVER OF
JURY TRIAL
.
THE GRANTEE
HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
[signature
page follows]
IN WITNESS WHEREOF
, the
parties hereto have executed this Restricted Share Grant Agreement as of the
date first written above.
THORIUM
POWER, LTD.
|
|
|
By:
|
/s/ Seth Grae
|
|
Name:
Seth Grae
|
|
Title:
President and Chief Executive Officer
|
|
|
GRANTEE:
|
|
|
/s/ James
Guerra
|
Name:
James
Guerra
|
THORIUM
POWER, LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
NOTICE OF
GRANT
Capitalized
but otherwise undefined terms in this Notice of Grant and the attached Stock
Option Agreement shall have the same defined meanings as in the Second Amended
and Restated 2006 Stock Plan (the “Plan”).
Name:
|
James Guerra
|
|
Address:
|
423 Cumnor Road
|
|
|
|
|
Kenilworth, IL
60043
|
You have
been granted an option (the “Option”) to purchase Common Stock of the
Corporation, subject to the terms and conditions of the Plan and the attached
Stock Option Agreement, as follows:
Date
of Grant:
|
July 14, 2009
|
|
|
Vesting
Commencement Date:
|
July 14, 2009
|
|
|
Option
Price per Share:
|
$0.17
|
|
|
Total
Number of Shares Granted:
|
988,235
|
|
|
Total
Option Price:
|
$167,999.95
|
|
|
Type
of Option:
|
_______
|
Incentive
Stock Option
|
|
X
|
Nonqualified
Stock Option
|
|
|
|
Term/Expiration
Date:
|
Ten
(10) years after Date of
Grant
|
Vesting
Schedule
:
The Option shall vest, in whole or in
part, in accordance with the following schedule:
The Option shall vest with respect to
1/3 of the Total Number of Shares Granted (as specified above) on the first
anniversary of the Vesting Commencement Date and shall thereafter vest 1/3 on
each of the second and third anniversaries of the Vesting Commencement
Date.
THORIUM
POWER, LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
STOCK OPTION
AGREEMENT
This
STOCK OPTION AGREEMENT
(“Agreement”), dated as of the 14th day of July, 2009 is made by and
between THORIUM POWER, LTD., a Nevada corporation (the “Corporation”), and JAMES
GUERRA (the “Optionee,” which term as used herein shall be deemed to include any
successor to the Optionee by will or by the laws of descent and distribution,
unless the context shall otherwise require).
BACKGROUND
Pursuant to the Corporation’s Second
Amended and Restated 2006 Stock Plan (the “Plan”), the Corporation, acting
through the Committee of the Board of Directors (if a committee has been formed
to administer the Plan) or its entire Board of Directors (if no such committee
has been formed) responsible for administering the Plan (in either case,
referred to herein as the “Committee”), approved the issuance to the Optionee,
effective as of the date set forth above, of a stock option to purchase shares
of Common Stock of the Corporation at the price (the “Option Price”) set forth
in the attached Notice of Grant (which is expressly incorporated herein and made
a part hereof, the “Notice of Grant”), upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE
, in
consideration of the mutual premises and undertakings hereinafter set forth, the
parties hereto agree as follows:
1.
Option;
Option Price
. On behalf of the Corporation, the Committee
hereby grants to the Optionee the option (the “Option”) to purchase, subject to
the terms and conditions of this Agreement and the Plan (which is incorporated
by reference herein and which in all cases shall control in the event of any
conflict with the terms, definitions and provisions of this Agreement), that
number of shares of Common Stock of the Corporation set forth in the Notice of
Grant, at an exercise price per share equal to the Option Price as is set forth
in the Notice of Grant (the “Optioned Shares”). If designated in the
Notice of Grant as an “incentive stock option,” the Option is intended to
qualify for Federal income tax purposes as an “incentive stock option” within
the meaning of Section 422 of the Code. A copy of the Plan as in
effect on the date hereof has been supplied to the Optionee, and the Optionee
hereby acknowledges receipt thereof.
2.
Term
.
The term (the
“Option Term”) of the Option shall commence on the date of this Agreement and
shall expire on the Expiration Date set forth in the Notice of Grant unless such
Option shall theretofore have been terminated in accordance with the terms of
the Notice of Grant, this Agreement or of the Plan.
3.
Time of
Exercise
.
(a) Unless
accelerated in the discretion of the Committee or as otherwise provided herein,
the Option shall become exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Grant. Subject to the
provisions of Sections 5 and 8 hereof, shares as to which the Option becomes
exercisable pursuant to the foregoing provisions may be purchased at any time
thereafter prior to the expiration or termination of the Option.
(b) Anything
contained in this Agreement to the contrary notwithstanding, to the extent the
Option is intended to be an Incentive Stock Option, the Option shall not be
exercisable as an Incentive Stock Option, and shall be treated as a
Non-Statutory Option, to the extent that the aggregate Fair Market Value on the
date hereof of all stock with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
the Plan and all other plans of the Corporation, its parent and its
subsidiaries, if any) exceeds $100,000.
4.
Termination
of Option
.
(a)
The Optionee may exercise the Option (but only to the extent the Option was
exercisable at the time of termination of the Optionee’s consulting agreement
with the Corporation, its parent or any of its subsidiaries) at any time within
three (3) months following the termination of the Optionee’s business
relationship with the Corporation, its parent or any of its subsidiaries, but
not later than the scheduled expiration date. If the termination of
the Optionee’s employment is for cause or is otherwise attributable to a breach
by the Optionee of an employment, non-competition, non-disclosure or other
material agreement, the Option shall expire immediately upon such
termination. If the Optionee is a natural person who dies while in a
business relationship with the Corporation, its parent or any of its
subsidiaries, this option may be exercised, to the extent of the number of
shares with respect to which the Optionee could have exercised it on the date of
his death, by his estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 9 of the Plan, at any time within
the twelve (12) month period following the date of death. If the
Optionee is a natural person whose business relationship with the Corporation,
its parent or any of its subsidiaries is terminated by reason of his disability,
this Option may be exercised, to the extent of the number of shares with respect
to which the Optionee could have exercised it on the date the business
relationship was terminated, at any time within the twelve (12) month period
following the date of such termination, but not later than the scheduled
expiration date. At the expiration of such three (3) or twelve (12)
month period or the scheduled expiration date, whichever is the earlier, this
Option shall terminate and the only rights hereunder shall be those as to which
the Option was properly exercised before such termination.
(b) Anything
contained herein to the contrary notwithstanding, the Option shall not be
affected by any change of duties or position of the Optionee (including a
transfer to or from the Corporation, its parent or any of its subsidiaries) so
long as the Optionee continues in a business relationship with the Corporation,
its parent or any of its subsidiaries.
5.
Procedure
for Exercise
.
(a) The
Option may be exercised, from time to time, in whole or in part (but for the
purchase of whole shares only), by delivery of a written notice in the form
attached as
Exhibit
A
hereto (the “Notice”) from the Optionee to the Secretary of the
Corporation, which Notice shall:
(i) state
that the Optionee elects to exercise the Option;
(ii) state
the number of shares with respect to which the Option is being exercised (the
“Optioned Shares”);
(iii) state
the method of payment for the Optioned Shares pursuant to Section
5(b);
(iv) state
the date upon which the Optionee desires to consummate the purchase of the
Optioned Shares (which date must be prior to the termination of such Option and
no later than 30 days from the delivery of such Notice);
(v) include
any representations of the Optionee required under Section 8(b);
(vi) if
the Option shall be exercised in accordance with Section 9 of the Plan by any
person other than the Optionee, include evidence to the satisfaction of the
Committee of the right of such person to exercise the Option; and
(b) Payment
of the Option Price for the Optioned Shares shall be made either (i) by delivery
of cash or a check to the order of the Corporation in an amount equal to the
Option Price, (ii) if approved by the Committee, by delivery to the Corporation
of shares of Common Stock of the Corporation having a Fair Market Value on the
date of exercise equal in amount to the Option Price of the options being
exercised, (iii) by any other means which the Board of Directors determines are
consistent with the purpose of the Plan and with applicable laws and regulations
(including, without limitation, the provisions of Rule 16b-3 and Regulation T
promulgated by the Federal Reserve Board), or (iv) by any combination of such
methods of payment.
Notwithstanding any provisions herein
to the contrary, if the Fair Market Value of one share of Common Stock of the
Corporation is greater than the Option Price (at the date of calculation as set
forth below), in lieu of paying the Option Price in cash, the Optionee may elect
to receive shares equal to the value (as determined below) of the Optioned
Shares by delivering notice of such election to the Corporation in which event
the Corporation shall issue to the Optionee a number of shares of Common Stock
computed using the following formula:
X =
Y(A-B)
A
Where
|
X
|
=
the number of shares of Common Stock to be issued to the
Optionee
|
|
Y
|
=
the
number of Optioned Shares
|
|
A
|
=
the
Fair Market Value of one share of Common Stock (at the date of such
calculation)
|
|
B
|
=
Option Price (as adjusted to the date of such
calculation)
|
(c) The
Corporation shall issue a stock certificate in the name of the Optionee (or such
other person exercising the Option in accordance with the provisions of Section
9 of the Plan) for the Optioned Shares as soon as practicable after receipt of
the Notice and payment of the aggregate Option Price for such
shares.
6.
No Rights
as a Stockholder
.
The Optionee
shall not have any privileges of a stockholder of the Corporation with respect
to any Optioned Shares until the date of issuance of a stock certificate
pursuant to Section 5(c).
7.
Adjustments
.
The Plan contains provisions
covering the treatment of options in a number of contingencies such as stock
splits and mergers. Provisions in the Plan for adjustment with
respect to stock subject to options and the related provisions with respect to
successors to the business of the Corporation are hereby made applicable
hereunder and are incorporated herein by reference. In general, the
Optionee should not assume that options would survive the acquisition of the
Corporation.
8.
Additional
Provisions Related to Exercise
.
(a) The
Option shall be exercisable only on such date or dates and during such period
and for such number of shares of Common Stock as are set forth in this
Agreement.
(b) To
exercise the Option, the Optionee shall follow the procedures set forth in
Section 5 hereof. Upon the exercise of the Option at a time when
there is not in effect a registration statement under the Securities Act of
1933, as amended (the “Securities Act”), relating to the shares of Common Stock
issuable upon exercise of the Option, the Committee in its discretion may, as a
condition to the exercise of the Option, require the Optionee (i) to execute an
Investment Representation Statement substantially in the form set forth in
Exhibit B
hereto and
(ii) to make such other representations and warranties as are deemed appropriate
by counsel to the Corporation.
(c) Stock
certificates representing shares of Common Stock acquired upon the exercise of
Options that have not been registered under the Securities Act shall, if
required by the Committee, bear an appropriate restrictive legend referring to
the Securities Act. No shares of Common Stock shall be issued and
delivered upon the exercise of the Option unless and until the Corporation
and/or the Optionee shall have complied with all applicable Federal or state
registration, listing and/or qualification requirements and all other
requirements of law or of any regulatory agencies having
jurisdiction.
9.
No
Evidence of Employment or Service
.
Nothing contained
in the Plan or this Agreement shall confer upon the Optionee any right to
continue in a business relationship with the Corporation, its parent or any of
its subsidiaries or interfere in any way with the right of the Corporation, its
parent or its subsidiaries (subject to the terms of any separate agreement to
the contrary) to terminate the Optionee’s business relationship or to increase
or decrease the Optionee’s compensation at any time.
10.
Restriction
on Transfer
.
The Option may
not be transferred, pledged, assigned, hypothecated or otherwise disposed of in
any way by the Optionee, except by will or by the laws of descent and
distribution, and may be exercised during the lifetime of the Optionee only by
the Optionee. If the Optionee dies, the Option shall thereafter be
exercisable, during the period specified in Section 4, by his executors or
administrators to the full extent to which the Option was exercisable by the
Optionee at the time of his death. The Option shall not be subject to
execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary to
the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without
effect. The words “transfer” and “dispose” include without limitation
the making of any sale, exchange, assignment, gift, security interest, pledge or
other encumbrance, or any contract therefor, any voting trust or other agreement
or arrangement with respect to the transfer of any interest, beneficial or
otherwise, in the Option, the creation of any other claim thereto or any other
transfer or disposition whatsoever, whether voluntary or involuntary, affecting
the right, title, interest or possession with respect to the
Option.
11.
Specific
Performance
. Optionee expressly agrees that the Corporation
will be irreparably damaged if the provisions of this Agreement and the Plan are
not specifically enforced. Upon a breach or threatened breach of the
terms, covenants and/or conditions of this Agreement or the Plan by the
Optionee, the Corporation shall, in addition to all other remedies, be entitled
to a temporary or permanent injunction, without showing any actual damage,
and/or decree for specific performance, in accordance with the provisions hereof
and thereof. The Board of Directors shall have the power to determine
what constitutes a breach or threatened breach of this Agreement or the
Plan. Any such determinations shall be final and conclusive and
binding upon the Optionee.
12.
Disqualifying
Dispositions
. To the extent the Option is intended to be an
Incentive Stock Option, and if the Optioned Shares are disposed of within two
years following the date of this Agreement or one year following the issuance
thereof to the Optionee (a “Disqualifying Disposition”), the Optionee shall,
immediately prior to such Disqualifying Disposition, notify the Corporation in
writing of the date and terms of such Disqualifying Disposition and provide such
other information regarding the Disqualifying Disposition as the Corporation may
reasonably require.
13.
Notices
.
All notices or
other communications which are required or permitted hereunder shall be in
writing and sufficient if (i) personally delivered or sent by telecopy, (ii)
sent by nationally-recognized overnight courier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Optionee, to the address (or
telecopy number) set forth on the Notice of Grant; and
if to the Corporation, to its principal
executive office as specified in any report filed by the Corporation with the
Securities and Exchange Commission or to such address as the Corporation may
have specified to the Optionee in writing, Attention: Corporate
Secretary.
or to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, or when telecopied, if telecopied, (ii) on the first
Business Day (as hereinafter defined) after dispatch, if sent by
nationally-recognized overnight courier and (iii) on the third Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, “Business Day” means a day
that is not a Saturday, Sunday or a day on which banking institutions in the
city to which the notice or communication is to be sent are not required to be
open.
14.
No
Waiver
.
No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of like or different
nature.
15.
Optionee
Undertaking
.
The Optionee
hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Optionee pursuant to the express
provisions of this Agreement.
16.
Modification
of Rights
.
The rights of the
Optionee are subject to modification and termination in certain events as
provided in this Agreement and the Plan.
17.
Governing
Law
.
This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Nevada applicable to contracts made and to be wholly performed therein, without
giving effect to its conflicts of laws principles.
18.
Counterparts;
Facsimile Execution
.
This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding execution and delivery for all purposes.
19.
Entire
Agreement
.
This Agreement
(including the Notice of Grant) and the Plan, and, upon execution, the Notice
and Investment Representation Statement, constitute the entire agreement between
the parties with respect to the subject matter hereof, and supersede all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
20.
Severability
.
In the event one
or more of the provisions of this Agreement should, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
21.
WAIVER OF
JURY TRIAL
.
THE OPTIONEE
HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
22.
Section
409A Status
.
This option is
not intended to result in a deferral of compensation within the meaning of Code
section 409A, and shall be interpreted in a manner consistent with avoiding the
deferral of compensation. If any provision of this agreement would
result in the deferral of compensation within the meaning of section 409A, the
parties agree to amend that provision to avoid the application of section
409A.
[signature
page follows]
IN WITNESS WHEREOF
, the
parties hereto have executed this Option Agreement as of the date first written
above.
|
THORIUM
POWER, LTD.
|
|
|
|
By:
|
/s/ Seth Grae
|
|
Name:
Seth Grae
|
|
Title:
President and Chief Executive Officer
|
|
|
|
Optionee:
|
|
|
|
/s/ James
Guerra
|
|
Name: James
Guerra
|
NOTE RE:
EXHIBITS
EXHIBITS
A AND B ARE TO BE SIGNED
WHEN OPTIONS ARE
EXERCISED,
NOT WHEN OPTION AGREEMENT IS
SIGNED
.
EXHIBIT
A
THORIUM
POWER, LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
EXERCISE
NOTICE
Thorium
Power, Ltd.
Attention: Chief
Executive Officer
1.
Exercise of
Option
. Effective as of today, _______________________, 20__ ,
the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option
to purchase ________________ shares of the Common Stock (the
“Shares”) of Thorium Power, Ltd. (the “Corporation”) under and pursuant to the
Second Amended and Restated 2006 Stock Plan (the “Plan”) and the Stock Option
Agreement dated July 14, 2009 (the “Stock Option Agreement”), with the purchase
of the Shares to be consummated on ______________ ___, ____ (the “Effective
Date”), which date is prior to the termination of the Option and no later than
30 days from the date of delivery of this Notice.
2.
Representations of the
Optionee
. The Optionee acknowledges that the Optionee has
received, read and understood the Plan and the Stock Option Agreement and agrees
to abide by and be bound by their terms and conditions.
3.
Rights as Shareholder;
Shares Subject to Stockholders Agreement
. Until the stock
certificate evidencing such Shares is issued (as evidenced by the appropriate
entry on the books of the Corporation or of a duly authorized transfer agent of
the Corporation), no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Shares, notwithstanding the exercise
of the Option. The Corporation shall issue (or cause to be issued)
such stock certificate promptly after the Effective Date, provided the
applicable price has been paid and the required documents have been
received. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as otherwise provided in the Plan. Unless waived by the
Corporation in writing, the Shares shall automatically become subject to the
terms and conditions of any stockholders agreement or similar agreement to which
a majority of the outstanding capital stock of the Corporation is subject at the
time of exercise and the Optionee shall sign as a condition to the issuance of
the Shares such joinder agreement, signature pages or other documents in order
to evidence the Optionee’s agreement to be so bound.
4.
Tax
Consultation
. The Optionee understands that the Optionee may
suffer adverse tax consequences as a result of the Optionee’s purchase or
disposition of the Shares. The Optionee represents that the Optionee
has consulted with any tax consultants the Optionee deems advisable in
connection with the purchase or disposition of the Shares and that the Optionee
is not relying on the Corporation for any tax advice.
5.
Successors and
Assigns
. The Corporation may assign any of its rights under
the Stock Option Agreement to single or multiple assignees (who may be
stockholders, officers, directors, employees or consultants of the Corporation),
and this Agreement shall inure to the benefit of the successors and assigns of
the Corporation. Subject to the restrictions on transfer set forth in
the Stock Option Agreement, this Agreement shall be binding upon the Optionee
and his or her heirs, executors, administrators, successors and
assigns.
6.
Interpretation
. Any
dispute regarding the interpretations of this Agreement shall be submitted by
the Optionee or by the Corporation forthwith to the Committee, which shall
review such dispute at its next regular meeting. The resolution of
such a dispute by the Committee shall be final and binding on the Corporation
and on the Optionee.
7.
Governing Laws:
Severability
. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be wholly performed therein, without giving effect to its
conflicts of laws principles. Should any provision of this Agreement
be determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain
enforceable.
8.
Notices
. Any
notice required or permitted hereunder shall be given in writing and shall be
deemed effectively given if given in the manner specified in the Stock Option
Agreement.
9.
Further
Instruments
. The parties 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.
10.
Delivery of
Payment
. The Optionee herewith delivers to the Corporation the
full Option Price for the Shares.
11.
Entire
Agreement
. The Plan, the Notice of Grant, and the Stock Option
Agreement are incorporated herein by reference. This Agreement, the
Plan, the Notice of Grant, the Stock Option Agreement, and the Investment
Representation Statement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings and agreements of the
Corporation and the Optionee with respect to the subject matter
hereof.
Submitted
by:
|
|
Accepted
by:
|
|
|
|
OPTIONEE:
|
|
THORIUM
POWER, LTD.
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Its:
|
|
Name:
|
|
|
EXHIBIT
B
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
INVESTMENT REPRESENTATION
STATEMENT
OPTIONEE
|
:
|
James Guerra
|
|
|
|
CORPORATION
|
:
|
THORIUM
POWER, LTD.
|
|
|
|
SECURITY
|
:
|
Common
Stock
|
|
|
|
AMOUNT
|
:
|
|
|
|
|
DATE
|
:
|
|
In
connection with the purchase of the above-listed Securities, the undersigned
Optionee represents to the Corporation the following:
(a) The
Optionee is aware of the Corporation’s business affairs and financial condition
and has acquired sufficient information about the Corporation to reach an
informed and knowledgeable decision to acquire the Securities. The
Optionee is acquiring these Securities for investment for the Optionee’s own
account only and not with a view to, or for resale in connection with, a
“distribution” thereof within the meaning of the Securities Act of 1933, as
amended (the “Securities Act”).
(b) The
Optionee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Optionee’s
investment intent as expressed herein. In this connection, the
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if the
Optionee’s representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. The Optionee further understands that the
Securities must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. The Optionee further acknowledges and understands that the
Corporation is under no obligation to register the Securities. The
Optionee understands that the certificate evidencing the Securities will be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel satisfactory to the Corporation and other legends required under the
applicable state or federal securities laws.
Signature
of Optionee: _____________________________
Date:__________________