VWAV 8-K
VisionWave Holdings, Inc. (VWAV)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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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.
On August 5, 2025, the Board of Directors (the “Board”) of VisionWave Holdings, Inc. (the “Company”) adopted the Company’s 2025 Omnibus Equity Incentive Plan (the “Plan”), which authorizes the issuance of up to 7,000,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The Plan is subject to approval by the Company’s shareholders within twelve (12) months of the Board’s adoption date. If shareholder approval is obtained, the Plan will become effective as of August 5, 2025. The Plan provides for the grant of various equity-based awards, including non-qualified stock options, incentive stock options, restricted stock awards, restricted stock unit awards, stock appreciation rights, performance stock awards, performance unit awards, unrestricted stock awards, distribution equivalent rights, or any combination thereof. The Plan is intended to assist the Company in attracting, retaining, and incentivizing key management employees, directors, and consultants, and to align their interests with those of the Company’s shareholders.
A copy of the Plan is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The foregoing description of the Plan is qualified in its entirety by reference to the full text of the Plan.
On August 6, 2025, the Company entered into employment agreements (each, an “Employment Agreement”) with Douglas Davis, as Executive Chairman, Noam Kenig, as Chief Executive Officer, and Danny Rittman, as Chief Technology Officer (collectively, the “Executives”). Each Employment Agreement has an initial term of three (3) years, commencing on August 6, 2025, and is subject to automatic one-year renewals thereafter unless terminated by either party with at least thirty (30) days’ prior written notice.
Under the Employment Agreements:
| ● | Mr. Davis and Mr. Kenig will each receive an initial base salary of $150,000 per year, increasing to $300,000 upon the Company achieving $3,000,000 in revenue during any ninety (90)-day period, and further increasing to $600,000 upon achieving $6,000,000 in revenue during any ninety (90)-day period, with subsequent adjustments to fair market rates. |
| ● | Mr. Rittman will receive an initial base salary of $120,000 per year, increasing to $240,000 upon the Company achieving $3,000,000 in revenue during any ninety (90)-day period, and further increasing to $360,000 upon achieving $6,000,000 in revenue during any ninety (90)-day period, with subsequent adjustments to fair market rates. |
| ● | Mr. Davis and Mr. Kenig are each eligible for an annual performance bonus targeted at 2% of the Company’s net income as reflected in its financial statements filed with the Securities and Exchange Commission (the “SEC”). |
| ● | Each Executive is eligible for four (4) weeks of paid vacation per year, participation in the Company’s benefit plans (including medical, dental, vision, disability, life insurance, and 401(k) plans), and reimbursement of reasonable business expenses. |
| ● | In the event of termination without cause or resignation for good reason, each Executive is entitled to severance equal to the greater of $600,000 or two (2) times their then-current base salary, payable within six (6) months of termination, subject to execution of a general release. |
| ● | Upon a change in control followed by termination within three (3) months, all outstanding equity awards vest immediately, and severance becomes payable. |
| ● | Each Employment Agreement includes standard provisions for termination for cause, death, disability, or without good reason, with limited payments in such cases. |
Additionally, as a condition to entering into the Employment Agreements, each Executive entered into a Proprietary & Confidential Information, Inventions Assignment, Non-Solicitation and Non-Competition Agreement and a Mutual Agreement to Arbitrate with the Company.
Additionally, pursuant to the Employment Agreements and under the Plan (subject to shareholder approval thereof), the Company granted nonstatutory stock options (each, an “Option”) to the Executives as follows:
| ● | Mr. Davis and Mr. Kenig were each granted Options to purchase 2,000,000 shares of Common Stock. |
| ● | Mr. Rittman was granted an Option to purchase 500,000 shares of Common Stock. |
Each Option has an exercise price of $7.20 per share (to be determined as the fair market value on the grant date) and vests in twelve (12) equal quarterly installments over four (4) years, commencing on the date of shareholder approval of the Plan (the “Approval Date”). The Options are exercisable for five (5) years from the grant date and allow for cashless exercise. The grants are contingent upon shareholder approval of the Plan; if not approved, the Options will be null and void.
Copies of the Employment Agreements for Mr. Davis, Mr. Kenig, and Mr. Rittman are filed as Exhibits 10.2, 10.3, and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. A copy of the form of the Option agreement for Mr. Davis, Mr. Kenig, and Mr. Rittman is filed as Exhibit 10.5 to this Current Report on Form 8-K and are incorporated herein by reference. Copies of the form of Proprietary & Confidential Information, Inventions Assignment, Non-Solicitation and Non-Competition Agreement and the form of Mutual Agreement to Arbitrate are filed as Exhibits 10.6 and 10.7, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. The foregoing descriptions of the Employment Agreements, Options, Proprietary & Confidential Information, Inventions Assignment, Non-Solicitation and Non-Competition Agreements, and Mutual Agreements to Arbitrate are qualified in their entirety by reference to the full text of such agreements.
Item 9.01 Financial Statements and Exhibits.
| Exhibit No. | Description |
| 10.1 | 2025 Omnibus Equity Incentive Plan |
| 10.2 | Employment Agreement, dated August 6, 2025, by and between the Company and Douglas Davis |
| 10.3 | Employment Agreement, dated August 6, 2025, by and between the Company and Noam Kenig |
| 10.4 | Employment Agreement, dated August 6, 2025, by and between the Company and Danny Rittman |
| 10.5 | Form of Nonstatutory Stock Option Agreement, dated August 6, 2025 |
| 10.6 | Form of Proprietary & Confidential Information, Inventions Assignment, Non-Solicitation and Non-Competition Agreement |
| 10.7 | Form of Mutual Agreement to Arbitrate |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
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.
| Dated: August 6, 2025 | ||
| VisionWave Holdings, Inc. | ||
| By: | /s/ Noam Kenig | |
| Name: | Noam Kenig | |
| Title: | Chief Executive Officer | |
EXHIBIT 10.1
VISIONWAVE HOLDINGS, INC.
2025 OMNIBUS EQUITY INCENTIVE PLAN
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VISIONWAVE HOLDINGS, INC.
2025 OMNIBUS EQUITY INCENTIVE PLAN
ARTICLE I
PURPOSE
The purpose of this VisionWave Holdings, Inc. 2025 Omnibus Equity Incentive Plan (the “Plan”) is to benefit VisionWave Holdings, Inc., a Delaware corporation (the “Company”) and its stockholders, by assisting the Company and its subsidiaries to attract, retain and provide incentives to key management employees, directors, and consultants of the Company and its Affiliates, and to align the interests of such service providers with those of the Company’s stockholders. Accordingly, the Plan provides for the granting of Non-qualified Stock Options, Incentive Stock Options, Restricted Stock Awards, Restricted Stock Unit Awards, Stock Appreciation Rights, Performance Stock Awards, Performance Unit Awards, Unrestricted Stock Awards, Distribution Equivalent Rights or any combination of the foregoing.
ARTICLE II
DEFINITIONS
The following definitions shall be applicable throughout the Plan unless the context otherwise requires:
2.1 “Affiliate” shall mean any corporation which, with respect to the Company, is a “subsidiary corporation” within the meaning of Section 424(f) of the Code or other entity in which the Company has a controlling interest in such entity or another entity which is part of a chain of entities in which the Company or each entity has a controlling interest in another entity in the unbroken chain of entities ending with the applicable entity.
2.2 “Award” shall mean, individually or collectively, any Option, Restricted Stock Award, Restricted Stock Unit Award, Performance Stock Award, Performance Unit Award, Stock Appreciation Right, Distribution Equivalent Right or Unrestricted Stock Award.
2.3 “Award Agreement” shall mean a written agreement between the Company and the Holder with respect to an Award, setting forth the terms and conditions of the Award, as amended.
2.4 “Board” shall mean the Board of Directors of the Company.
2.5 “Base Value” shall have the meaning given to such term in Section 14.2.
2.6 “Cause” shall mean (i) if the Holder is a party to an employment or service agreement with the Company or an Affiliate which agreement defines “Cause” (or a similar term), “Cause” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not a party to such an agreement, “Cause” shall mean termination by the Company or an Affiliate of the employment (or other service relationship) of the Holder by reason of the Holder’s (A) intentional failure to perform reasonably assigned duties, (B) dishonesty or willful misconduct in the performance of the Holder’s duties, (C) involvement in a transaction which is materially adverse to the Company or an Affiliate, (D) breach of fiduciary duty involving personal profit, (E) willful violation of any law, rule, regulation or court order (other than misdemeanor traffic violations and misdemeanors not involving misuse or misappropriation of money or property), (F) commission of an act of fraud or intentional misappropriation or conversion of any asset or opportunity of the Company or an Affiliate, or (G) material breach of any provision of the Plan or the Holder’s Award Agreement or any other written agreement between the Holder and the Company or an Affiliate, in each case as determined in good faith by the Board, the determination of which shall be final, conclusive and binding on all parties.
2.7 “Change of Control” shall mean: (i) for a Holder who is a party to an employment or consulting agreement with the Company or an Affiliate which agreement defines “Change of Control” (or a similar term), “Change of Control” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not a party to such an agreement, “Change of Control” shall mean the satisfaction of any one or more of the following conditions (and the “Change of Control” shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied):
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(a) Any person (as such term is used in paragraphs 13(d) and 14(d)(2) of the Exchange Act, hereinafter in this definition, “Person”), other than the Company or an Affiliate or an employee benefit plan of the Company or an Affiliate, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities;
(b) The closing of a merger, consolidation or other business combination (a “Business Combination”) other than a Business Combination in which holders of the Shares immediately prior to the Business Combination have substantially the same proportionate ownership of the common stock or ordinary shares, as applicable, of the surviving corporation immediately after the Business Combination as immediately before;
(c) The closing of an agreement for the sale or disposition of all or substantially all of the Company’s assets to any entity that is not an Affiliate;
(d) The approval by the holders of shares of Shares of a plan of complete liquidation of the Company, other than a merger of the Company into any subsidiary or a liquidation as a result of which persons who were stockholders of the Company immediately prior to such liquidation have substantially the same proportionate ownership of shares of common stock or ordinary shares, as applicable, of the surviving corporation immediately after such liquidation as immediately before; or
(e) Within any twenty-four (24) month period, the Incumbent Directors shall cease to constitute at least a majority of the Board or the board of directors of any successor to the Company; provided, however, that any director elected to the Board, or nominated for election, by a majority of the Incumbent Directors then still in office, shall be deemed to be an Incumbent Director for purposes of this paragraph (e), but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, entity or “group” other than the Board (including, but not limited to, any such assumption that results from paragraphs (a), (b), (c), or (d) of this definition).
2.8 “Code” shall mean the United States of America Internal Revenue Code of 1986, as amended. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to any section and any regulation under such section.
2.9 “Committee” shall mean a committee comprised of two (2) or more members of the Board who are selected by the Board as provided in Section 4.1.
2.10 “Company” shall have the meaning given to such term in the introductory paragraph, including any successor thereto.
2.11 “Consultant” shall mean any non-Employee (individual or entity) advisor to the Company or an Affiliate who or which has contracted directly with the Company or an Affiliate to render bona fide consulting or advisory services thereto.
2.12 “Director” shall mean a member of the Board or a member of the board of directors of an Affiliate, in either case, who is not an Employee.
2.13 “Distribution Equivalent Right” shall mean an Award granted under Article XIII of the Plan which entitles the Holder to receive bookkeeping credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of Shares during the period the Holder held the Distribution Equivalent Right.
2.14 “Distribution Equivalent Right Award Agreement” shall mean a written agreement between the Company and a Holder with respect to a Distribution Equivalent Right Award.
2.15 “Effective Date” shall mean August 5, 2025.
2.16 “Employee” shall mean any employee, including any officer, of the Company or an Affiliate.
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2.17 “Exchange Act” shall mean the United States of America Securities Exchange Act of 1934, as amended.
2.18 “Fair Market Value” shall mean, as of any specified date, the closing sales price of the Shares for such date (or, in the event that the Shares are not traded on such date, on the immediately preceding trading date) on the NASDAQ Stock Market LLC (“NASDAQ”), as reported by NASDAQ, or such other domestic or foreign national securities exchange on which the Shares may be listed. If the Shares are not listed on NASDAQ American or on a national securities exchange, but are quoted on the OTC Bulletin Board or by the National Quotation Bureau, the Fair Market Value of the Shares shall be the mean of the highest bid and lowest asked prices per Share for such date. If the Shares are not quoted or listed as set forth above, Fair Market Value shall be determined by the Board in good faith by any fair and reasonable means (which means may be set forth with greater specificity in the applicable Award Agreement). The Fair Market Value of property other than Shares shall be determined by the Board in good faith by any fair and reasonable means consistent with the requirements of applicable law.
2.19 “Family Member” of an individual shall mean any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, any person sharing the Holder’s household (other than a tenant or employee of the Holder), a trust in which such persons have more than fifty percent (50%) of the beneficial interest, a foundation in which such persons (or the Holder) control the management of assets, and any other entity in which such persons (or the Holder) own more than fifty percent (50%) of the voting interests.
2.20 “Holder” shall mean an Employee, Director or Consultant who has been granted an Award or any such individual’s beneficiary, estate or representative, who has acquired such Award in accordance with the terms of the Plan, as applicable.
2.21 “Incentive Stock Option” shall mean an Option which is intended by the Committee to constitute an “incentive stock option” and conforms to the applicable provisions of Section 422 of the Code.
2.22 “Incumbent Director” shall mean, with respect to any period of time specified under the Plan for purposes of determining whether or not a Change of Control has occurred, the individuals who were members of the Board at the beginning of such period.
2.23 “Non-qualified Stock Option” shall mean an Option which is not an Incentive Stock Option or which is designated as an Incentive Stock Option but does not meet the applicable requirements of Section 422 of the Code.
2.24 “Option” shall mean an Award granted under Article VII of the Plan of an option to purchase Shares and shall include both Incentive Stock Options and Non-qualified Stock Options.
2.25 “Option Agreement” shall mean a written agreement between the Company and a Holder with respect to an Option.
2.26 “Performance Criteria” shall mean the criteria selected by the Committee for purposes of establishing the Performance Goal(s) for a Holder for a Performance Period.
2.27 “Performance Goals” shall mean, for a Performance Period, the written goal or goals established by the Committee for the Performance Period based upon the Performance Criteria, which may be related to the performance of the Holder, the Company or an Affiliate.
2.28 “Performance Period” shall mean one or more periods of time, which may be of varying and overlapping durations, selected by the Committee, over which the attainment of the Performance Goals shall be measured for purposes of determining a Holder’s right to, and the payment of, a Performance Stock Award or a Performance Unit Award.
2.29 “Performance Stock Award” or “Performance Stock” shall mean an Award granted under Article XII of the Plan under which, upon the satisfaction of predetermined Performance Goals, Shares are issued to the Holder.
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2.30 “Performance Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Stock Award.
2.31 “Performance Unit” shall mean a Unit awarded to a Holder pursuant to a Performance Unit Award.
2.32 “Performance Unit Award” shall mean an Award granted under Article XI of the Plan under which, upon the satisfaction of predetermined Performance Goals, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder.
2.33 “Performance Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Unit Award.
2.34 “Plan” shall mean this VisionWave Holdings, Inc. 2025 Omnibus Equity Incentive Plan, as amended from time to time, together with each of the Award Agreements utilized hereunder.
2.35 “Restricted Stock Award” and “Restricted Stock” shall mean an Award granted under Article VIII of the Plan of Shares, the transferability of which by the Holder is subject to Restrictions.
2.36 “Restricted Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
2.37 “Restricted Stock Unit Award” and “RSUs” shall refer to an Award granted under Article X of the Plan under which, upon the satisfaction of predetermined individual service-related vesting requirements, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder.
2.38 “Restricted Stock Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
2.39 “Restriction Period” shall mean the period of time for which Shares subject to a Restricted Stock Award shall be subject to Restrictions, as set forth in the applicable Restricted Stock Agreement.
2.40 “Restrictions” shall mean the forfeiture, transfer and/or other restrictions applicable to Shares awarded to an Employee, Director or Consultant under the Plan pursuant to a Restricted Stock Award and set forth in a Restricted Stock Agreement.
2.41 “Rule 16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, as such may be amended from time to time, and any successor rule, regulation or statute fulfilling the same or a substantially similar function.
2.42 “Shares” or “Stock” shall mean the Class A Common Stock of the Company, par value $0.01 per share.
2.43 “Stock Appreciation Right” or “SAR” shall mean an Award granted under Article XIV of the Plan of a right, granted alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.
2.44 “Stock Appreciation Right Agreement” shall mean a written agreement between the Company and a Holder with respect to a Stock Appreciation Right.
2.45 “Tandem Stock Appreciation Right” shall mean a Stock Appreciation Right granted in connection with a related Option, the exercise of some or all of which results in termination of the entitlement to purchase some or all of the Shares under the related Option, all as set forth in Article XIV.
2.46 “Ten Percent Stockholder” shall mean an Employee who, at the time an Option is granted to him or her, owns shares possessing more than ten percent (10%) of the total combined voting power of all classes of shares of the Company or of any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code), within the meaning of Section 422(b)(6) of the Code.
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2.47 “Termination of Service” shall mean a termination of a Holder’s employment with, or status as a Director or Consultant of, the Company or an Affiliate, as applicable, for any reason, including, without limitation, Total and Permanent Disability or death, except as provided in Section 6.4. In the event Termination
of Service shall constitute a payment event with respect to any Award subject to Code Section 409A, Termination of Service shall only be deemed to occur upon a “separation from service” as such term is defined under Code Section 409A and applicable authorities.
2.48 “Total and Permanent Disability” of an individual shall mean the inability of such individual to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months, within the meaning of Section 22(e)(3) of the Code.
2.49 “Unit” shall mean a bookkeeping unit, which represents such monetary amount as shall be designated by the Committee in each Performance Unit Agreement, or represents one Share for purposes of each Restricted Stock Unit Award.
2.50 “Unrestricted Stock Award” shall mean an Award granted under Article IX of the Plan of Shares which are not subject to Restrictions.
2.51 “Unrestricted Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to an Unrestricted Stock Award.
ARTICLE III
EFFECTIVE DATE OF PLAN
The Plan shall be effective as of the Effective Date, provided that the Plan is approved by the stockholders of the Company within twelve (12) months of such date.
ARTICLE IV
ADMINISTRATION
4.1 Composition of Committee. The Plan shall be administered by the Committee, which shall be appointed by the Board. If necessary, in the Board’s discretion, to comply with Rule 16b-3 under the Exchange Act or relevant securities exchange or inter-dealer quotation service, the Committee shall consist solely of two (2) or more Directors who are each (i) ”non-employee directors” within the meaning of Rule 16b-3 and (ii) ”independent” for purposes of any applicable listing requirements;. If a member of the Committee shall be eligible to receive an Award under the Plan, such Committee member shall have no authority hereunder with respect to his or her own Award.
4.2 Powers. Subject to the other provisions of the Plan, the Committee shall have the sole authority, in its discretion, to make all determinations under the Plan, including but not limited to (i) determining which Employees, Directors or Consultants shall receive an Award, (ii) the time or times when an Award shall be made (the date of grant of an Award shall be the date on which the Award is awarded by the Committee), (iii) what type of Award shall be granted, (iv) the term of an Award, (v) the date or dates on which an Award vests, (vi) the form of any payment to be made pursuant to an Award, (vii) the terms and conditions of an Award (including the forfeiture of the Award, and/or any financial gain, if the Holder of the Award violates any applicable restrictive covenant thereof), (viii) the Restrictions under a Restricted Stock Award, (ix) the number of Shares which may be issued under an Award, (x) Performance Goals applicable to any Award and certification of the achievement of such goals, and (xi) the waiver of any Restrictions or Performance Goals, subject in all cases to compliance with applicable laws. In making such determinations the Committee may take into account the nature of the services rendered by the respective Employees, Directors and Consultants, their present and potential contribution to the Company’s (or the Affiliate’s) success and such other factors as the Committee in its discretion may deem relevant.
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4.3 Additional Powers. The Committee shall have such additional powers as are delegated to it under the other provisions of the Plan. Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective Award Agreements executed hereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the intent of the Plan, to determine the terms, restrictions and provisions of each Award and to make all other determinations necessary or advisable for administering the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any Award Agreement in the manner and to the extent the Committee shall deem necessary, appropriate or expedient to carry it into effect. The determinations of the Committee on the matters referred to in this Article IV shall be conclusive and binding on the Company and all Holders.
4.4 Committee Action. Subject to compliance with all applicable laws, action by the Committee shall require the consent of a majority of the members of the Committee, expressed either orally at a meeting of the Committee or in writing in the absence of a meeting. No member of the Committee shall have any liability for any good faith action, inaction or determination in connection with the Plan.
ARTICLE V
SHARES SUBJECT TO PLAN AND LIMITATIONS THEREON
5.1 Authorized Shares and Award Limits. The Committee may from time-to-time grant Awards to one or more Employees, Directors and/or Consultants determined by it to be eligible for participation in the Plan in accordance with the provisions of Article VI. Subject to Article XV, the aggregate number of Shares that may be issued under the Plan shall not exceed 7,000,000 Shares. Shares shall be deemed to have been issued under the Plan solely to the extent actually issued and delivered pursuant to an Award. To the extent that an Award lapses, expires, is canceled, is terminated unexercised or ceases to be exercisable for any reason, or the rights of its Holder terminate, any Shares subject to such Award shall again be available for the grant of a new Award. Notwithstanding any provision in the Plan to the contrary, the maximum number of Shares that may be subject to Awards of Options under Article VII and/or Stock Appreciation Rights under Article XIV, in either or both cases granted to any one person during any calendar year, shall be 2,000,000 Shares (subject to adjustment in the same manner as provided in Article XV with respect to Shares subject to Awards then outstanding).
5.2 Types of Shares. The Shares to be issued pursuant to the grant or exercise of an Award may consist of authorized but unissued Shares, Shares purchased on the open market or Shares previously issued and outstanding and reacquired by the Company.
ARTICLE VI
ELIGIBILITY AND TERMINATION OF SERVICE
6.1 Eligibility. Awards made under the Plan may be granted solely to individuals or entities who, at the time of grant, are Employees, Directors or Consultants. An Award may be granted on more than one occasion to the same Employee, Director or Consultant, and, subject to the limitations set forth in the Plan, such Award may include, a Non-qualified Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, an Unrestricted Stock Award, a Distribution Equivalent Right Award, a Performance Stock Award, a Performance Unit Award, a Stock Appreciation Right, a Tandem Stock Appreciation Right, or any combination thereof, and solely for Employees, an Incentive Stock Option.
6.2 Termination of Service. Except to the extent inconsistent with the terms of the applicable Award Agreement and/or the provisions of Section 6.3 or 6.4, the following terms and conditions shall apply with respect to a Holder’s Termination of Service with the Company or an Affiliate, as applicable:
(a) The Holder’s rights, if any, to exercise any then exercisable Options and/or Stock Appreciation Rights shall terminate:
(i) If such termination is for a reason other than the Holder’s Total and Permanent Disability or death, ninety (90) days after the date of such Termination of Service;
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(ii) If such termination is on account of the Holder’s Total and Permanent Disability, one (1) year after the date of such Termination of Service; or
(iii) If such termination is on account of the Holder’s death, one (1) year after the date of the Holder’s death.
Upon such applicable date the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in or with respect to any such Options and Stock Appreciation Rights. Notwithstanding the foregoing, the Committee, in its sole discretion, may provide for a different time period in the Award Agreement, or may extend the time period, following a Termination of Service, during which the Holder has the right to exercise any vested Non-qualified Stock Option or Stock Appreciation Right, which time period may not extend beyond the expiration date of the Award term.
(b) In the event of a Holder’s Termination of Service for any reason prior to the actual or deemed satisfaction and/or lapse of the Restrictions, vesting requirements, terms and conditions applicable to a Restricted Stock Award and/or Restricted Stock Unit Award, such Restricted Stock and/or RSUs shall immediately be canceled, and the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in and with respect to any such Restricted Stock and/or RSUs. Notwithstanding the immediately preceding sentence, the Committee, in its sole discretion, may determine, prior to or within thirty (30) days after the date of such Termination of Service that all or a portion of any such Holder’s Restricted Stock and/or RSUs shall not be so canceled and forfeited.
6.3 Special Termination Rule. Except to the extent inconsistent with the terms of the applicable Award Agreement, and notwithstanding anything to the contrary contained in this Article VI, if a Holder’s employment with, or status as a Director of, the Company or an Affiliate shall terminate, and if, within ninety (90) days of such termination, such Holder shall become a Consultant, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been a Consultant for the entire period during which such Award or portion thereof had been outstanding. Should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her employment or Director status had terminated until such time as his or her Consultant status shall terminate, in which case his or her Award, as it may have been reduced in connection with the Holder’s becoming a Consultant, shall be treated pursuant to the provisions of Section 6.2, provided, however, that any such Award which is intended to be an Incentive Stock Option shall, upon the Holder’s no longer being an Employee, automatically convert to a Non-qualified Stock Option. Should a Holder’s status as a Consultant terminate, and if, within ninety (90) days of such termination, such Holder shall become an Employee or a Director, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been an Employee or a Director, as applicable, for the entire period during which such Award or portion thereof had been outstanding, and, should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her Consultant status had terminated until such time as his or her employment with the Company or an Affiliate, or his or her Director status, as applicable, shall terminate, in which case his or her Award shall be treated pursuant to the provisions of Section 6.2.
6.4 Termination of Service for Cause. Notwithstanding anything in this Article VI or elsewhere in the Plan to the contrary, and unless a Holder’s Award Agreement specifically provides otherwise, in the event of a Holder’s Termination of Service for Cause, all of such Holder’s then outstanding Awards shall expire immediately and be forfeited in their entirety upon such Termination of Service.
ARTICLE VII
OPTIONS
7.1 Option Period. The term of each Option shall be as specified in the Option Agreement; provided, however, that except as set forth in Section 7.3, no Option shall be exercisable after the expiration of ten (10) years from the date of its grant.
7.2 Limitations on Exercise of Option. An Option shall be exercisable in whole or in such installments and at such times as specified in the Option Agreement.
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7.3 Special Limitations on Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock Option is granted) of Shares with respect to which Incentive Stock Options are exercisable for the first time by an individual during any calendar year under all plans of the Company and any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code) which provide for the grant of Incentive Stock Options exceeds One Hundred Thousand Dollars ($100,000) (or such other individual limit as may be in effect under the Code
on the date of grant), the portion of such Incentive Stock Options that exceeds such threshold shall be treated as Non-qualified Stock Options. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of a Holder’s Options, which were intended by the Committee to be Incentive Stock Options when granted to the Holder, will not constitute Incentive Stock Options because of such limitation, and shall notify the Holder of such determination as soon as practicable after such determination. No Incentive Stock Option shall be granted to an Employee if, at the time the Incentive Stock Option is granted, such Employee is a Ten Percent Stockholder, unless (i) at the time such Incentive Stock Option is granted the Option price is at least one hundred ten percent (110%) of the Fair Market Value of the Shares subject to the Incentive Stock Option, and (ii) such Incentive Stock Option by its terms is not exercisable after the expiration of five (5) years from the date of grant. No Incentive Stock Option shall be granted more than ten (10) years from the earlier of the Effective Date or date on which the Plan is approved by the Company’s stockholders. The designation by the Committee of an Option as an Incentive Stock Option shall not guarantee the Holder that the Option will satisfy the applicable requirements for “incentive stock option” status under Section 422 of the Code.
7.4 Option Agreement. Each Option shall be evidenced by an Option Agreement in such form and containing such provisions not inconsistent with the other provisions of the Plan as the Committee from time to time shall approve, including, but not limited to, provisions intended to qualify an Option as an Incentive Stock Option. An Option Agreement may provide for the payment of the Option price, in whole or in part, by the delivery of a number of Shares (plus cash if necessary) that have been owned by the Holder for at least six (6) months and having a Fair Market Value equal to such Option price, or such other forms or methods as the Committee may determine from time to time, in each case, subject to such rules and regulations as may be adopted by the Committee. Each Option Agreement shall, solely to the extent inconsistent with the provisions of Sections 6.2, 6.3, and 6.4, as applicable, specify the effect of Termination of Service on the exercisability of the Option. Moreover, without limiting the generality of the foregoing, a Non-qualified Stock Option Agreement may provide for a “cashless exercise” of the Option, in whole or in part, by (a) establishing procedures whereby the Holder, by a properly-executed written notice, directs (i) an immediate market sale or margin loan as to all or a part of Shares to which he is entitled to receive upon exercise of the Option, pursuant to an extension of credit by the Company to the Holder of the Option price, (ii) the delivery of the Shares from the Company directly to a brokerage firm and (iii) the delivery of the Option price from sale or margin loan proceeds from the brokerage firm directly to the Company, or (b) reducing the number of Shares to be issued upon exercise of the Option by the number of such Shares having an aggregate Fair Market Value equal to the Option price (or portion thereof to be so paid) as of the date of the Option’s exercise. An Option Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Options, including but not limited to, upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements and requiring additional “gross-up” payments to Holders to meet any excise taxes or other additional income tax liability imposed as a result of a payment made upon a Change of Control resulting from the operation of the Plan or of such Option Agreement) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Option Agreements need not be identical.
7.5 Option Price and Payment. The price at which an Share may be purchased upon exercise of an Option shall be determined by the Committee; provided, however, that such Option price (i) shall not be less than the Fair Market Value of an Share on the date such Option is granted (or 110% of Fair Market Value for an Incentive Stock Option held by Ten Percent Stockholder, as provided in Section 7.3), and (ii) shall be subject to adjustment as provided in Article XV. The Option or portion thereof may be exercised by delivery of an irrevocable notice of exercise to the Company. The Option price for the Option or portion thereof shall be paid in full in the manner prescribed by the Committee as set forth in the Plan and the applicable Option Agreement, which manner, with the consent of the Committee, may include the withholding of Shares otherwise issuable in connection with the exercise of the Option. Separate share certificates shall be issued by the Company for those Shares acquired pursuant to the exercise of an Incentive Stock Option and for those Shares acquired pursuant to the exercise of a Non-qualified Stock Option.
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7.6 Stockholder Rights and Privileges. The Holder of an Option shall be entitled to all the privileges and rights of a stockholder of the Company solely with respect to such Shares as have been purchased under the Option and for which share certificates have been registered in the Holder’s name.
7.7 Options and Rights in Substitution for Stock or Options Granted by Other Corporations. Options may be granted under the Plan from time to time in substitution for stock options held by individuals employed by entities who become Employees, Directors or Consultants as a result of a merger or consolidation of the employing entity with the Company or any Affiliate, or the acquisition by the Company or an Affiliate of the assets of the employing entity, or the acquisition by the Company or an Affiliate of stock or shares of the employing entity with the result that such employing entity becomes an Affiliate.
7.8 Prohibition Against Re-Pricing. Except to the extent (i) approved in advance by holders of a majority of the shares of the Company entitled to vote generally in the election of directors, or (ii) as a result of any Change of Control or any adjustment as provided in Article XV, the Committee shall not have the power or authority to reduce, whether through amendment or otherwise, the exercise price under any outstanding Option or Stock Appreciation Right, or to grant any new Award or make any payment of cash in substitution for or upon the cancellation of Options and/or Stock Appreciation Rights previously granted.
ARTICLE VIII
RESTRICTED STOCK AWARDS
8.1 Award. A Restricted Stock Award shall constitute an Award of Shares to the Holder as of the date of the Award which are subject to a “substantial risk of forfeiture” as defined under Section 83 of the Code during the specified Restriction Period. At the time a Restricted Stock Award is made, the Committee shall establish the Restriction Period applicable to such Award. Each Restricted Stock Award may have a different Restriction Period, in the discretion of the Committee. The Restriction Period applicable to a particular Restricted Stock Award shall not be changed except as permitted by Section 8.2.
8.2 Terms and Conditions. At the time any Award is made under this Article VIII, the Company and the Holder shall enter into a Restricted Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Company shall cause the Shares to be issued in the name of Holder, either by book-entry registration or issuance of one or more stock certificates evidencing the Shares, which Shares or certificates shall be held by the Company or the stock transfer agent or brokerage service selected by the Company to provide services for the Plan. The Shares shall be restricted from transfer and shall be subject to an appropriate stop-transfer order, and if any certificate is issued, such certificate shall bear an appropriate legend referring to the restrictions applicable to the Shares. After any Shares vest, the Company shall deliver the vested Shares, in book-entry or certificated form in the Company’s sole discretion, registered in the name of Holder or his or her legal representatives, beneficiaries or heirs, as the case may be, less any Shares withheld to pay withholding taxes. If provided for under the Restricted Stock Agreement, the Holder shall have the right to vote Shares subject thereto and to enjoy all other stockholder rights, including the entitlement to receive dividends on the Shares during the Restriction Period. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the Restriction Period. Such additional terms, conditions or restrictions shall, to the extent inconsistent with the provisions of Sections 6.2, 6.3 and 6.4, as applicable, be set forth in a Restricted Stock Agreement made in conjunction with the Award. Such Restricted Stock Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Awards, including but not limited to accelerated vesting upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements and requiring additional “gross-up” payments to Holders to meet any excise taxes or other additional income tax liability imposed as a result of a payment made in connection with a Change of Control resulting from the operation of the Plan or of such Restricted Stock Agreement) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Restricted Stock Agreements need not be identical. All Shares delivered to a Holder as part of a Restricted Stock Award shall be delivered and reported by the Company or the Affiliate, as applicable, to the Holder at the time of vesting.
8.3 Payment for Restricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received pursuant to a Restricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Shares received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.
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ARTICLE IX
UNRESTRICTED STOCK AWARDS
9.1 Award. Shares may be awarded (or sold) to Employees, Directors or Consultants under the Plan which are not subject to Restrictions of any kind, in consideration for past services rendered thereby to the Company or an Affiliate or for other valid consideration.
9.2 Terms and Conditions. At the time any Award is made under this Article IX, the Company and the Holder shall enter into an Unrestricted Stock Agreement setting forth each of the matters contemplated hereby and such other matters as the Committee may determine to be appropriate.
9.3 Payment for Unrestricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received pursuant to an Unrestricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Shares received pursuant to an Unrestricted Stock Award, except to the extent otherwise required by law.
ARTICLE X
RESTRICTED STOCK UNIT AWARDS
10.1 Award. A Restricted Stock Unit Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares) to the Holder at the end of a specified Restriction Period. At the time a Restricted Stock Unit Award is made, the Committee shall establish the Restriction Period applicable to such Award. Each Restricted Stock Unit Award may have a different Restriction Period, in the discretion of the Committee. A Restricted Stock Unit shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares prior to the time the Holder shall receive a distribution of Shares pursuant to Section 10.3.
10.2 Terms and Conditions. At the time any Award is made under this Article X, the Company and the Holder shall enter into a Restricted Stock Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Restricted Stock Unit Agreement shall set forth the individual service-based vesting requirement which the Holder would be required to satisfy before the Holder would become entitled to distribution pursuant to Section 10.3 and the number of Units awarded to the Holder. Such conditions shall be sufficient to constitute a “substantial risk of forfeiture” as such term is defined under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Unit Awards in the Restricted Stock Unit Agreement, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable vesting period. The terms and conditions of the respective Restricted Stock Unit Agreements need not be identical.
10.3 Distributions of Shares. The Holder of a Restricted Stock Unit shall be entitled to receive a cash payment equal to the Fair Market Value of an Share, or one Share, as determined in the sole discretion of the Committee and as set forth in the Restricted Stock Unit Agreement, for each Restricted Stock Unit subject to such Restricted Stock Unit Award, if the Holder satisfies the applicable vesting requirement. Such distribution shall be made no later than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the calendar year in which the Restricted Stock Unit first becomes vested (i.e., no longer subject to a “substantial risk of forfeiture”).
ARTICLE XII
PERFORMANCE UNIT AWARDS
11.1 Award. A Performance Unit Award shall constitute an Award under which, upon the satisfaction of predetermined individual and/or Company (and/or Affiliate) Performance Goals based on selected Performance Criteria, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder. At the time a Performance Unit Award is made, the Committee shall establish the Performance Period and applicable Performance Goals. Each Performance Unit Award may have different Performance Goals, in the discretion of the Committee. A Performance Unit Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares.
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11.2 Terms and Conditions. At the time any Award is made under this Article XI, the Company and the Holder shall enter into a Performance Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Performance Unit Agreement the Performance Period, Performance Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to payment pursuant to Section 11.3, the number of Units awarded to the Holder and the dollar value or formula assigned to each such Unit. Such payment shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Unit Awards, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable performance period. The terms and conditions of the respective Performance Unit Agreements need not be identical.
11.3 Payments. The Holder of a Performance Unit shall be entitled to receive a cash payment equal to the dollar value assigned to such Unit under the applicable Performance Unit Agreement if the Holder and/or the Company satisfy (or partially satisfy, if applicable under the applicable Performance Unit Agreement) the Performance Goals set forth in such Performance Unit Agreement. All payments shall be made no later than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the Company’s fiscal year to which such performance goals and objectives relate.
ARTICLE XII
PERFORMANCE STOCK AWARDS
12.1 Award. A Performance Stock Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares) to the Holder at the end of a specified Performance Period subject to achievement of specified Performance Goals. At the time a Performance Stock Award is made, the Committee shall establish the Performance Period and applicable Performance Goals based on selected Performance Criteria. Each Performance Stock Award may have different Performance Goals, in the discretion of the Committee. A Performance Stock Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares unless and until the Holder shall receive a distribution of Shares pursuant to Section 11.3.
12.2 Terms and Conditions. At the time any Award is made under this Article XII, the Company and the Holder shall enter into a Performance Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Performance Stock Agreement the Performance Period, selected Performance Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to the receipt of Shares pursuant to such Holder’s Performance Stock Award and the number of Shares subject to such Performance Stock Award. Such distribution shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Stock Awards, including, but not limited to, rules pertaining to the effect of the Holder’s Termination of Service prior to the expiration of the applicable performance period. The terms and conditions of the respective Performance Stock Agreements need not be identical.
12.3 Distributions of Shares. If the applicable Performance Goals set forth in the Performance Stock Agreement are achieved, the Holder of a Performance Stock Award shall be entitled to receive a cash payment equal to the Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee, for each Performance Stock Award subject to such Performance Stock Agreement. Such distribution shall be made no later than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the Company’s fiscal year to which the applicable Performance Goals and Performance Criteria relate.
ARTICLE XIII
DISTRIBUTION EQUIVALENT RIGHTS
13.1 Award. A Distribution Equivalent Right shall entitle the Holder to receive bookkeeping credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of Shares during the specified period of the Award.
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13.2 Terms and Conditions. At the time any Award is made under this Article XIII, the Company and the Holder shall enter into a Distribution Equivalent Rights Award Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Distribution Equivalent Rights Award Agreement the terms and conditions, if any, including whether the Holder is to receive credits currently in cash, is to have such credits reinvested (at Fair Market Value determined as of the date of reinvestment) in additional Shares or is to be entitled to choose among such alternatives. Such receipt shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code and, if such Award becomes vested, the distribution of such cash or Shares shall be made no later than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the Company’s fiscal year in which the Holder’s interest in the Award vests. Distribution Equivalent Rights Awards may be settled in cash or in Shares, as set forth in the applicable Distribution Equivalent Rights Award Agreement. A Distribution Equivalent Rights Award may, but need not be, awarded in tandem with another Award (other than an Option or a SAR), whereby, if so awarded, such Distribution Equivalent Rights Award shall expire, terminate or be forfeited by the Holder, as applicable, under the same conditions as under such other Award.
13.3 Interest Equivalents. The Distribution Equivalent Rights Award Agreement for a Distribution Equivalent Rights Award may provide for the crediting of interest on a Distribution Rights Award to be settled in cash at a future date (but in no event later than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the Company’s fiscal year in which such interest is credited and vested), at a rate set forth in the applicable Distribution Equivalent Rights Award Agreement, on the amount of cash payable thereunder.
ARTICLE XIV
STOCK APPRECIATION RIGHTS
14.1 Award. A Stock Appreciation Right shall constitute a right, granted alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.
14.2 Terms and Conditions. At the time any Award is made under this Article XIV, the Company and the Holder shall enter into a Stock Appreciation Right Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Stock Appreciation Right Agreement the terms and conditions of the Stock Appreciation Right, including (i) the base value (the “Base Value”) for the Stock Appreciation Right, which shall be not less than the Fair Market Value of an Share on the date of grant of the Stock Appreciation Right, (ii) the number of Shares subject to the Stock Appreciation Right, (iii) the period during which the Stock Appreciation Right may be exercised; provided, however, that no Stock Appreciation Right shall be exercisable after the expiration of ten (10) years from the date of its grant, and (iv) any other special rules and/or requirements which the Committee imposes upon the Stock Appreciation Right. Upon the exercise of some or all of the portion of a Stock Appreciation Right, the Holder shall receive a payment from the Company, in cash or in the form of Shares having an equivalent Fair Market Value or in a combination of both, as determined in the sole discretion of the Committee, equal to the product of:
(c) The excess of (i) the Fair Market Value of an Share on the date of exercise, over (ii) the Base Value, multiplied by,
(d) The number of Shares with respect to which the Stock Appreciation Right is exercised.
14.3 Tandem Stock Appreciation Rights. If the Committee grants a Stock Appreciation Right which is intended to be a Tandem Stock Appreciation Right, the Tandem Stock Appreciation Right shall be granted at the same time as the related Option, and the following special rules shall apply:
(a) The Base Value shall be equal to or greater than the per Share exercise price under the related Option;
(b) The Tandem Stock Appreciation Right may be exercised for all or part of the Shares which are subject to the related Option, but solely upon the surrender by the Holder of the Holder’s right to exercise the equivalent portion of the related Option (and when a Share is purchased under the related Option, an equivalent portion of the related Tandem Stock Appreciation Right shall be canceled);
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(c) The Tandem Stock Appreciation Right shall expire no later than the date of the expiration of the related Option;
(d) The value of the payment with respect to the Tandem Stock Appreciation Right may be no more than one hundred percent (100%) of the difference between the per Share exercise price under the related Option and the Fair Market Value of the Shares subject to the related Option at the time the Tandem Stock Appreciation Right is exercised, multiplied by the number of the Shares with respect to which the Tandem Stock Appreciation Right is exercised; and
(e) The Tandem Stock Appreciation Right may be exercised solely when the Fair Market Value of the Shares subject to the related Option exceeds the per Share exercise price under the related Option.
ARTICLE XV
RECAPITALIZATION OR REORGANIZATION
15.1 Adjustments to Shares. The shares with respect to which Awards may be granted under the Plan are Shares as presently constituted; provided, however, that if, and whenever, prior to the expiration or distribution to the Holder of Shares underlying an Award theretofore granted, the Company shall effect a subdivision or consolidation of the Shares or the payment of an Share dividend on Shares without receipt of consideration by the Company, the number of Shares with respect to which such Award may thereafter be exercised or satisfied, as applicable, (i) in the event of an increase in the number of outstanding Shares, shall be proportionately increased, and the purchase price per Share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding Shares, shall be proportionately reduced, and the purchase price per Share shall be proportionately increased. Notwithstanding the foregoing or any other provision of this Article XV, any adjustment made with respect to an Award (x) which is an Incentive Stock Option, shall comply with the requirements of Section 424(a) of the Code, and in no event shall any adjustment be made which would render any Incentive Stock Option granted under the Plan to be other than an “incentive stock option” for purposes of Section 422 of the Code, and (y) which is a Non-qualified Stock Option, shall comply with the requirements of Section 409A of the Code, and in no event shall any adjustment be made which would render any Non-qualified Stock Option granted under the Plan to become subject to Section 409A of the Code.
15.2 Recapitalization. If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise or satisfaction, as applicable, of a previously granted Award, the Holder shall be entitled to receive (or entitled to purchase, if applicable) under such Award, in lieu of the number of Shares then covered by such Award, the number and class of shares and securities to which the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Holder had been the holder of record of the number of Shares then covered by such Award.
15.3 Other Events. In the event of changes to the outstanding Shares by reason of an extraordinary cash dividend, reorganization, merger, consolidation, combination, split-up, spin-off, exchange or other relevant change in capitalization occurring after the date of the grant of any Award and not otherwise provided for under this Article XV, any outstanding Awards and any Award Agreements evidencing such Awards shall be adjusted by the Board in its discretion in such manner as the Board shall deem equitable or appropriate taking into consideration the applicable accounting and tax consequences, as to the number and price of Shares or other consideration subject to such Awards. In the event of any adjustment pursuant to Sections 15.1, 15.2 or this Section 15.3, the aggregate number of Shares available under the Plan pursuant to Section 5.1 may be appropriately adjusted by the Board, the determination of which shall be conclusive. In addition, the Committee may make provision for a cash payment to a Holder or a person who has an outstanding Award. In addition, the Committee may make provision for a cash payment to a Holder or a person who has an outstanding Award.
15.4 Change of Control. The Committee may, in its sole discretion, at the time an Award is made or at any time prior to, coincident with or after the time of a Change of Control, cause any Award either (i) to be canceled in consideration of a payment in cash or other consideration in amount per share equal to
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the excess, if any, of the price or implied price per Share in the Change of Control over the per Share exercise, base or purchase price of such Award, which may be paid immediately or over the vesting schedule of the Award; (ii) to be assumed, or new rights substituted therefore, by the surviving corporation or a parent or subsidiary of such surviving corporation following such Change of Control; (iii) accelerate any time periods, or waive any other conditions, relating to the vesting, exercise, payment or distribution of an Award so that any Award to a Holder whose employment has been terminated as a result of a Change of Control may be vested, exercised, paid or distributed in full on or before a date fixed by the Committee; (iv) to be purchased from a Holder whose employment has been terminated as a result of a Change of Control, upon the Holder’s request, for an amount of cash equal to the amount that could have been obtained upon the exercise, payment or distribution of such rights had such Award been currently exercisable or payable; or (v) terminate any then outstanding Award or make any other adjustment to the Awards then outstanding as the Committee deems necessary or appropriate to reflect such transaction or change. The number of Shares subject to any Award shall be rounded to the nearest whole number.
15.5 Powers Not Affected. The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or of the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change of the Company’s capital structure or business, any merger or consolidation of the Company, any issue of debt or equity securities ahead of or affecting Shares or the rights thereof, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding.
15.6 No Adjustment for Certain Awards. Except as hereinabove expressly provided, the issuance by the Company of shares of any class or securities convertible into shares of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe therefor or upon conversion of shares or obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect previously granted Awards, and no adjustment by reason thereof shall be made with respect to the number of Shares subject to Awards theretofore granted or the purchase price per Share, if applicable.
ARTICLE XVI
AMENDMENT AND TERMINATION OF PLAN
The Plan shall continue in effect, unless sooner terminated pursuant to this Article XVI, until the tenth (10th) anniversary of the date on which it is adopted by the Board (except as to Awards outstanding on that date). The Board in its discretion may terminate the Plan at any time with respect to any shares for which Awards have not theretofore been granted; provided, however, that the Plan’s termination shall not materially and adversely impair the rights of a Holder with respect to any Award theretofore granted without the consent of the Holder. The Board shall have the right to alter or amend the Plan or any part hereof from time to time; provided, however, that without the approval by a majority of the votes cast at a meeting of stockholders at which a quorum representing a majority of the shares of the Company entitled to vote generally in the election of directors is present in person or by proxy, no amendment or modification of the Plan may (i) materially increase the benefits accruing to Holders, (ii) except as otherwise expressly provided in Article XV, materially increase the number of Shares subject to the Plan or the individual Award Agreements specified in Article V, (iii) materially modify the requirements for participation in the Plan, or (iv) amend, modify or suspend Section 7.7 (re-pricing prohibitions) or this Article XVI. In addition, no change in any Award theretofore granted may be made which would materially and adversely impair the rights of a Holder with respect to such Award without the consent of the Holder (unless such change is required in order to exempt the Plan or any Award from Section 409A of the Code).
ARTICLE XVI
MISCELLANEOUS
17.1 No Right to Award. Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed to give an Employee, Director or Consultant any right to an Award except as may be evidenced by an Award Agreement duly executed on behalf of the Company, and then solely to the extent and on the terms and conditions expressly set forth therein.
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17.2 No Rights Conferred. Nothing contained in the Plan shall (i) confer upon any Employee any right with respect to continuation of employment with the Company or any Affiliate, (ii) interfere in any way with any right of the Company or any Affiliate to terminate the employment of an Employee at any time, (iii) confer upon any Director any right with respect to continuation of such Director’s membership on the Board, (iv) interfere in any way with any right of the Company or an Affiliate to terminate a Director’s membership on the Board at any time, (v) confer upon any Consultant any right with respect to continuation of his or her consulting engagement with the Company or any Affiliate, or (vi) interfere in any way with any right of the Company or an Affiliate to terminate a Consultant’s consulting engagement with the Company or an Affiliate at any time.
17.3 Other Laws; No Fractional Shares; Withholding. The Company shall not be obligated by virtue of any provision of the Plan to recognize the exercise of any Award or to otherwise sell or issue Shares in violation of any laws, rules or regulations, and any postponement of the exercise or settlement of any Award under this provision shall not extend the term of such Award. Neither the Company nor its directors or officers shall have any obligation or liability to a Holder with respect to any Award (or Shares issuable thereunder) (i) that shall lapse because of such postponement, or (ii) for any failure to comply with the requirements of any applicable law, rules or regulations, including but not limited to any failure to comply with the requirements of Section 409A of this Code. No fractional Shares shall be delivered, nor shall any cash in lieu of fractional Shares be paid. The Company shall have the right to deduct in cash (whether under this Plan or otherwise) in connection with all Awards any taxes required by law to be withheld and to require any payments required to enable it to satisfy its withholding obligations. In the case of any Award satisfied in the form of Shares, no Shares shall be issued unless and until arrangements satisfactory to the Company shall have been made to satisfy any tax withholding obligations applicable with respect to such Award. Subject to such terms and conditions as the Committee may impose, the Company shall have the right to retain, or the Committee may, subject to such terms and conditions as it may establish from time to time, permit Holders to elect to tender, Shares (including Shares issuable in respect of an Award) to satisfy, in whole or in part, the amount required to be withheld.
17.4 No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to prevent the Company or any Affiliate from taking any corporate action which is deemed by the Company or such Affiliate to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Award made under the Plan. No Employee, Director, Consultant, beneficiary or other person shall have any claim against the Company or any Affiliate as a result of any such action.
17.5 Restrictions on Transfer. No Award under the Plan or any Award Agreement and no rights or interests herein or therein, shall or may be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of by a Holder except (i) by will or by the laws of descent and distribution, or (ii) where permitted under applicable tax rules, by gift to any Family Member of the Holder, subject to compliance with applicable laws. An Award may be exercisable during the lifetime of the Holder only by such Holder or by the Holder’s guardian or legal representative unless it has been transferred by gift to a Family Member of the Holder, in which case it shall be exercisable solely by such transferee. Notwithstanding any such transfer, the Holder shall continue to be subject to the withholding requirements provided for under Section 17.3 hereof.
17.6 Beneficiary Designations. Each Holder may, from time to time, name a beneficiary or beneficiaries (who may be contingent or successive beneficiaries) for purposes of receiving any amount which is payable in connection with an Award under the Plan upon or subsequent to the Holder’s death. Each such beneficiary designation shall serve to revoke all prior beneficiary designations, be in a form prescribed by the Company and be effective solely when filed by the Holder in writing with the Company during the Holder’s lifetime. In the absence of any such written beneficiary designation, for purposes of the Plan, a Holder’s beneficiary shall be the Holder’s estate.
17.7 Rule 16b-3. It is intended that the Plan and any Award made to a person subject to Section 16 of the Exchange Act shall meet all of the requirements of Rule 16b-3. If any provision of the Plan or of any such Award would disqualify the Plan or such Award under, or would otherwise not comply with the requirements of, Rule 16b-3, such provision or Award shall be construed or deemed to have been amended as necessary to conform to the requirements of Rule 16b-3.
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17.8 Clawback Policy. Notwithstanding any contained herein or in any incentive “performance based” Awards under the Plan shall be subject to reduction, forfeiture or repayment by reason of a correction or restatement of the Company’s financial information if and to the extent such reduction or repayment is required by any applicable law.
17.9 Section 409A. Notwithstanding any other provision of the Plan, the Committee shall have no authority to issue an Award under the Plan with terms and/or conditions which would cause such Award to constitute non-qualified “deferred compensation” under Section 409A of the Code unless such Award shall be structured to be exempt from or comply with all requirements of Code Section 409A. The Plan and all Award Agreements are intended to comply with the requirements of Section 409A of the Code (or to be exempt therefrom) and shall be so interpreted and construed and no amount shall be paid or distributed from the Plan unless and until such payment complies with all requirements of Code Section 409A. It is the intent of the Company that the provisions of this Agreement and all other plans and programs sponsored by the Company be interpreted to comply in all respects with Code Section 409A, however, the Company shall have no liability to the Holder, or any successor or beneficiary thereof, in the event taxes, penalties or excise taxes may ultimately be determined to be applicable to any payment or benefit received by the Holder or any successor or beneficiary thereof.
17.10 Indemnification. Each person who is or shall have been a member of the Committee or of the Board shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred thereby in connection with or resulting from any claim, action, suit, or proceeding to which such person may be made a party or may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid thereby in settlement thereof, with the Company’s approval, or paid thereby in satisfaction of any judgment in any such action, suit, or proceeding against such person; provided, however, that such person shall give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive and shall be independent of any other rights of indemnification to which such persons may be entitled under the Company’s Articles of Incorporation or By-laws, by contract, as a matter of law, or otherwise.
17.11 Other Benefit Plans. No Award, payment or amount received hereunder shall be taken into account in computing an Employee’s salary or compensation for the purposes of determining any benefits under any pension, retirement, life insurance or other benefit plan of the Company or any Affiliate, unless such other plan specifically provides for the inclusion of such Award, payment or amount received. Nothing in the Plan shall be construed to limit the right of the Company to establish other plans or to pay compensation to its employees, in cash or property, in a manner which is not expressly authorized under the Plan.
17.12 Limits of Liability. Any liability of the Company with respect to an Award shall be based solely upon the contractual obligations created under the Plan and the Award Agreement. None of the Company, any member of the Board nor any member of the Committee shall have any liability to any party for any action taken or not taken, in good faith, in connection with or under the Plan.
17.13 Governing Law. Except as otherwise provided herein, the Plan shall be construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.
17.14 Severability of Provisions. If any provision of the Plan is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the Plan, and the Plan shall be construed and enforced as if such invalid or unenforceable provision had not been included in the Plan.
17.15 No Funding. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of funds or assets to ensure the payment of any Award. Prior to receipt of Shares or a cash distribution pursuant to the terms of an Award, such Award shall represent an unfunded unsecured contractual obligation of the Company and the Holder shall have no greater claim to the Shares underlying such Award or any other assets of the Company or Affiliate than any other unsecured general creditor.
17.16 Headings. Headings used throughout the Plan are for convenience only and shall not be given legal significance.
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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into as of this 6th day of August 2025 (“Effective Date”), by and between VisionWave Holdings, Inc., 300 Delaware Ave., Suite 210#301, Wilmington, Delaware 19801 (the “Company”) and Douglas Davis (“Executive”).
WHEREAS, the Company desires to employ the Executive following the Effective Date in the position of Executive Chairman and enter into this Agreement;
WHEREAS, Executive wishes to accept employment with the Company on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the respective covenants and commitments of the parties hereto as set forth in this Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Position and Responsibilities.
1.1 Position. Company will employ Executive as Executive Chairman, effective as of the Effective Date. The Executive will report to the Board of Directors.
1.2 Location. Executive will perform his duties remotely. Executive will be expected to travel as necessary to perform his duties and responsibilities and as reasonably requested by the Company.
1.3 Duties. The Executive shall have such powers, duties, authorities and responsibilities as are consistent with such position and as the Company may designate from time to time.
1.4 Exclusive Employment. Executive will devote Executive’s full working time and attention and Executive’s best efforts to the performance of Executive’s duties hereunder and the business and affairs of the Company. Executive shall not accept other employment as an employee or independent contractor at any time during this Agreement or Executive’s employment with the Company without first obtaining written approval from the Company, which may be withheld in the Company’s sole and absolute discretion.
1.5 Observance of Rules. Executive will duly, punctually and faithfully perform and observe any and all rules and regulations that the Company hereafter establishes governing the conduct of its business and personnel.
2. Term of Employment. Executive shall be employed by the Company for an initial term of three (3) years commencing on the Effective Date (the “Term”). The Term shall be extended for successive one (1) year period unless, not fewer than thirty (30) days prior to the commencement of the renewal date, either party shall have given written notice to the other that it does not wish to extend the Term, in which case, upon expiration of the initial Term or any extended Term, this Agreement (except as to provisions designed to survive termination) and Employee’s employment shall terminate or convert to an “at-will” employment relationship. The Term of this Agreement, and Executive’s employment, shall be subject to earlier termination as follows:
(a) Death. Upon the death of Executive, the employment of Executive pursuant to this Agreement shall immediately terminate;
(b) Disability. If Executive becomes unable to perform the duties specified hereunder due to partial or total disability or incapacity resulting from a mental or physical illness, injury, or any other medical cause, for a period of three consecutive full calendar months, or for a cumulative period of 90 business days within any one-year, then, the Company shall have the right to terminate Executive’s employment pursuant to this Agreement by written notice to Employment;
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(c) For Cause. At the option of the Company, for Cause, by delivering written notice to Executive of the Company’s determination to terminate. “Cause” shall mean (A) Executive’s fraud, dishonesty, theft or other deliberate injury to the Company or any of its affiliates in the performance of Executive’s duties under the terms of Executive’s employment and service as a director and/or officer (as applicable) of the Company and its affiliates; (B) any event that constitutes any material breach by Executive of fiduciary obligations of Executive to the Company or any affiliate of the Company; (C) Executive’s material failure, in the reasonable discretion of the Company, to follow the reasonable directives from Executive’s superiors, which failure is not cured within fifteen days after Executive receives notice thereof from the Company; (D) Executive’s conviction of or entering a plea of guilty or nolo contendere to a felony involving dishonesty or moral turpitude that could harm the Company’s business or reputation, regardless of whether such crime involves the Company or any affiliate of the Company; (E) Executive’s breach of any of the covenants set forth in this Agreement (or any similar covenants to which the Executive may be subject from time to time in connection with the Executive’s employment with the Company), which breach, if curable, is not cured within 30 days after Executive receives notice thereof from the Company; (F) Executive’s material violation of any written policies of the Company, which, is not cured within 30 days after Executive receives notice thereof from the Company, or the failure of the Executive to meet his annual goals or objectives as set out by the Board of Directors on an annual basis; (G) Executive’s violation of any law or regulation applicable to the Company or any of its subsidiaries or affiliates, or breach of any of Executive’s duties to the Company that, in each case, materially and adversely affects (economically, reputationally or otherwise), or would reasonably be expected to materially and adversely affect (economically, reputationally or otherwise), the Company and, if capable of being cured (as determined by the Company in its reasonable discretion), the continuance of such violation or breach for more than thirty (30) days after the Company, as the case may be, notifies Executive in writing of such violation or breach; or (H) Executive’s habitual abuse of drugs or alcohol, where such abuse adversely affects the performance of Executive’s duties to the Company.
(d) Without Cause. At the option of the Company, without Cause, by delivering written notice to Executive of the Company’s determination to terminate.
(e) Resignation for Good Reason. At the option of the Executive, for Good Reason, by delivering written notice to the Company describing in reasonable detail the occurrence of the event or circumstances for which Executive believes Executive may resign for Good Reason within thirty (30) days of the date Executive first becomes aware thereof and the Company shall not have cured such event or circumstance within thirty (30) days after the Company’s receipt of such notice. “Good Reason” shall mean, without Executive’s written consent: (A) the Company’s material breach of any provision of this Agreement; or (B) a material diminution Base Salary.
(f) Resignation Without Good Reason. At the option of Executive, without Good Reason, upon Executive’s provision of six (6) months prior written notice to the Company. The Company may, in its sole discretion, make the resignation effective earlier without converting it to a termination without Cause.
(g) Expiration of the Term. Upon expiration of the Term as a result of a non-renewal of this Agreement or the Term.
3. Compensation & Related Matters.
3.1 Base Salary. The Company shall pay to the Executive a base salary at an annual rate of $150,000, subject to applicable withholdings and deductions (the “Base Salary”). Base Salary shall be paid in accordance with the Company’s payroll practices in effect from time to time. The Base Salary shall be increased to an annual rate of $300,000 upon the Company achieving $3,000,000 in revenue during any ninety (90) day period, which will again be adjusted to $600,000 once the Company has achieved $6,000,000 in revenue during any ninety (90) day period and then after adjusted to a fair market rate.
3.2 Performance Bonus. Executive shall be eligible for an annualy performance bonus targeted to be equal to 2% of the Company’s net income as reflected in the Company’s financial statements (the “Performance Bonus”) as filed with the Securities and Exchange Commission (the “SEC”), subject to applicable withholdings and taxes, payable within thirty (30) days of the filing of such report with the SEC. Executive must be employed on the date the Performance Bonus is paid. Nothing in this Section 3.2. shall create an entitlement or expectation by the Executive of the payment of a bonus in any amount for any year.
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3.3 Option Grant. On the Effective Date, subject to applicable withholdings and taxes, the Company will grant Executive a stock option to acquire 2,000,000 shares of common at an exercise price of $7.20 per share (the “Grant”), with the intention to effect cashless exercise, that will be vest over four (4) years on a quarterly basis in twelve (12) equal installments commencing on the Grant Date (as defined below) and continuing thereafter at the end of each quarter. The Grant shall be granted under and subject to the terms of the Company’s proposed 2025 Omnibus Equity Incentive Plan (the “Plan”), which the Company intends to submit for board and shareholder approval at a future meeting. Notwithstanding any other provision in this Agreement, the Grant is expressly contingent upon, and shall not be effective until, the Company obtains the requisite approval of its shareholders for the Plan. If the shareholders of the Company approve the Plan, the Grant shall be deemed validly granted as of the date of such shareholder approval (the “Grant Date”). In no event shall any portion of the Grant become exercisable prior to the Grant Date. The Company and Executive shall promptly execute the Option Agreement consistent with the terms hereof. In the event that the Company’s shareholders do not approve the Plan, the Grant shall be null and void, and all outstanding options granted under this Agreement shall be automatically cancelled and forfeited, without any further action by the Company or Executive. In such a circumstance, the Company shall have no further obligation to provide the Grant to Executive, and Executive shall have no right to any compensation, damages, or other remedy related to the cancellation of the Grant.
3.4 Benefits. Executive shall be eligible during his employment to participate in any employee benefit plans or arrangements which may from time to time be made available by the Company to similarly situated Executives (collectively, “Benefit Plans”), subject to and on a basis consistent with the terms, conditions and overall administration of such Benefit Plans. Executive understands and acknowledges that any Benefit Plans may be amended from time to time by the Company in its sole discretion so long as the quality of benefits remain similar in nature. These Benefits Plans include: (i) participation in the Company’s medical, dental and vision insurance programs for Executive and Executive’s dependents; (ii) participation such other and further benefit plans that may be made available by the Company to similarly situated employees, on the same terms and conditions, including short and long-term disability benefits, life insurance, and 401-k or other retirement plan participation.
3.5 Vacation. Executive shall be eligible for four (4) weeks of paid vacation time in each calendar year of Executive’s employment (with Executive’s vacation entitlement pro-rated in the first year of Executive’s employment based on the Effective Date). During the initial year after the Effective Date, vacation time may not be taken before Executive completes three (3) months of continuous service. Executive shall also be eligible for all paid holidays recognized by the Company in any year. Executive will be entitled to carry over up to one week of accrued but unused vacation from one year to the next. Any remaining accrued but unused vacation will be forfeited to the extent permitted under applicable law.
3.6 Expenses. Executive shall be entitled to receive reimbursement for all reasonable business expenses incurred by Executive (in accordance with the policies and procedures then in effect and established by the Company) in the performance of Executive’s duties under this Agreement; provided that Executive properly accounts therefor and obtains any applicable prior written approval in accordance with Company policy.
4. Effect of Termination of Agreement or Executive’s Employment.
4.1 Payments Upon Termination Under Paragraphs 2(a)-(c), (f), (g). On termination of this Agreement or Executive’s employment with the Company for any of the reasons set forth in Paragraphs 2(a)-(c), (f) or (g), Executive shall be entitled to any unpaid Base Salary earned by Executive and, solely to the extent required by applicable law, any accrued but unused paid time off, in each case, up to the date of termination (“Accrued Benefits”), payable within 30 days following the Termination Date or in accordance with applicable state law. Executive expressly acknowledges that Executive will not be entitled to any further payments under this Agreement or otherwise.
4.2 Payments Upon Termination Under Paragraphs 2(d)-(e). On termination of this Agreement or Executive’s employment with the Company for any of the reasons set forth in Paragraphs 2(d)-(e), Executive shall receive, in addition to the Accrued Benefits a one time payment from the Company equal to the greater of $600,000 or the then current Base Salary multiplied by two (2) to be paid within six (6) months of termination (the “Severance”). As a condition of receipt of Severance (other than the Accrued Benefits), Executive must execute a general release of claims in a form provided by the Company and comply with any of Executive’s obligations under this Agreement designed to survive termination of this Agreement. Executive expressly acknowledges that Executive will not be entitled to any further payments under this Agreement or otherwise.
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4.3 Return of Company Property. Within ten days following the Termination Date, Executive or Executive’s personal representative shall return all property of the Company in Executive’s possession, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, facsimile machines, tablet computer and other communication devices, credit cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information (however stored) relating to the business of the Company and its affiliates, the Company’s customers and clients or its prospective customers and clients. Anything to the contrary notwithstanding, Executive shall be entitled to retain and continue to use (i) personal papers and other materials of a personal nature; provided, that such papers or materials do not include Confidential Information (as defined in the Confidentiality and Restrictive Covenant Agreement), (ii) information showing Executive’s compensation or relating to reimbursement of expenses, and (iii) copies of plans, programs and agreements relating to Executive’s employment, or termination thereof, with the Company which Executive received in Executive’s capacity as a participant.
4.4 Resignation as Officer or Board Member. Upon termination of this Agreement, Executive shall be deemed to have resigned, to the extent applicable, as an officer of the Company or any of its affiliates, as a member of each board of similar governing body of the Company or any of its affiliates, if applicable, and as a fiduciary of any employee benefit plan of the Company or any of its affiliates, if applicable. On or immediately following the termination date, Executive shall confirm the foregoing by submitting to the Company in writing a confirmation of Executive’s resignation(s).
4.5 Change in Control. Notwithstanding any provision in this Agreement or any equity award agreement to the contrary, in the event that the Executive’s employment is terminated by the Executive during the period commencing three (3) months following a Change in Control (the “Change in Control Period”), then effective as of the date of such termination one hundred percent (100%) of the Executive’s then-outstanding equity awards shall immediately accelerate and become fully vested and exercisable and the payments under Section 4.2 shall become immediately payable. For purposes of this Agreement, a “Change in Control” shall mean the consummation of any of the following events: (i) a merger, consolidation, or similar transaction in which the Company is not the surviving entity, except for a transaction in which the holders of the Company’s outstanding voting power immediately prior to such transaction continue to hold at least fifty percent (50%) of the outstanding voting power of the surviving entity or its parent immediately after such transaction; (ii) the sale, lease, or other disposition of all or substantially all of the assets of the Company to any person or entity other than a wholly-owned subsidiary of the Company; or (iii) an acquisition by any person, entity, or affiliated group of the beneficial ownership of more than fifty percent (50%) of the outstanding voting power of the Company; provided, however, that a Change in Control shall not be deemed to have occurred by virtue of a sale of securities by the Company in a financing transaction.
5. Confidentiality and Restrictive Covenant Agreement. It is a material condition of the Company’s willingness to employ Executive that Executive executes and complies with the Proprietary and Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement attached hereto as Exhibit A (collectively, the “Restrictive Covenant Agreements”). The Restrictive Covenant Agreements are incorporated by reference into this Agreement in its entirety as if set forth in full herein. Executive agrees and acknowledges that the Restrictive Covenant Agreements survive the termination of this Agreement or of Executive’s employment with the Company in all circumstances.
6. Mutual Agreement to Arbitrate. Executive and the Company agree that any and all disputes, claims or controversies arising under this Agreement or out of the Executive’s employment with the company shall be resolved by final and binding arbitration pursuant to the terms and conditions of the Mutual Agreement to Arbitrate. A copy of the Mutual Agreement to Arbitrate is attached hereto as Exhibit B. The Mutual Agreement to Arbitrate is incorporated by reference into this Agreement in its entirety as if set forth in full herein. Executive agrees and acknowledges that the Mutual Agreement to Arbitrate survives the termination of this Agreement or of Executive’s employment with the Company in all circumstances.
7. Miscellaneous.
7.1 No Conflict or Legal Restriction on Employment. Executive acknowledges and represents that Executive is not party to any agreement or understanding that restricts or interferes with Executive’s employment with the Company and that, should this representation be untrue or incorrect, Executive shall be responsible for indemnifying the Company for all damages and attorneys’ fees incurred by the Company as a result.
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7.2 No Waiver. No failure by Company to exercise any right, power, or privilege that it may have under either this Agreement, the Restrictive Covenant Agreements, the Mutual Agreement to Arbitrate, or any other agreement to which the Company may be a party, shall operate as a waiver thereof. Further, no waiver by Company or any deviation from, or breach of either this Agreement, the Restrictive Covenant Agreements or the Mutual Agreement to Arbitrate by Executive shall be deemed to be a waiver of any subsequent deviation or breach.
7.3 Assignment. Executive may not assign this Agreement or any of Executive’s rights and duties hereunder. The Company may assign this Agreement to an entity controlling, controlled by, or under common control with the Company or to an entity that acquires all or substantially all of the equity or assets of the Company. The provisions of this Agreement shall be binding on and shall inure to the benefit of the Company and its successors and assigns, including, without limitation, any successor in interest to the Company who acquires (directly or indirectly) all or substantially all of the Company’s equity or assets.
7.4 Severability. If any one or more of the provisions contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect by a final judicial determination made by a court of competent jurisdiction or in arbitration, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
7.5 Governing Law. This Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be governed and construed in accordance with the internal laws of the State of California applicable to contracts made and wholly performed within such state, without regard to any applicable conflicts of law principles that would result in the application of the laws of any other jurisdiction.
7.6 Entire Agreement. This Agreement, together with the Restrictive Covenant Agreements and the Mutual Agreement to Arbitrate, replace and supersede in their entirety, all previous agreements between Executive and the Company, and any representations made to the Executive by any person associated with the Company, whether orally or in writing, concerning the subject matter hereof. This Agreement may not be amended, supplemented, canceled or discharged except by written instrument executed by both parties hereto.
7.7 Counterparts. This Agreement may be executed in separate counterparts, any one of which need not contain signatures of more than one party, but all of which taken together will constitute one and the same Agreement.
7.8 Acknowledgment. Executive represents and warrants that: (a) Executive has consulted with independent legal counsel regarding Executive’s rights and obligations under this Agreement or has voluntarily chosen not to do so, and that Executive fully understands the terms and conditions contained herein; (b) Executive’s execution, delivery and performance of this Agreement do not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which Executive is bound; (c) Executive is not a party to or bound by any employment agreement, noncompetition agreement or confidentiality agreement with any other person or entity that would be in direct conflict to this Agreement, and Executive is not subject to any other agreement that, in each case, would prevent Executive from performing Executive’s duties for the Company or otherwise complying with this Agreement; (d) Executive represents that this contract will not breach any existing nondisclosure agreement, including any agreement concerning trade secrets or confidential information owned by any other party; and (e) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
Douglas Davis, Executive
/s/Douglas Davis
VISIONWAVE HOLDINGS, INC.
By:/s/ Haggai Ravid
Name: Haggai Ravid
Title: Audit Committee Chair and Director
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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into as of this 6th day of August 2025 (“Effective Date”), by and between VisionWave Holdings, Inc., 300 Delaware Ave., Suite 210#301, Wilmington, Delaware 19801 (the “Company”) and Noam Kenig (“Executive”).
WHEREAS, the Company desires to employ the Executive following the Effective Date in the position of Chief Executive Officer and enter into this Agreement;
WHEREAS, Executive wishes to accept employment with the Company on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the respective covenants and commitments of the parties hereto as set forth in this Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Position and Responsibilities.
1.1 Position. Company will employ Executive as Chief Exsecutive Officer, effective as of the Effective Date. The Executive will report to the Board of Directors.
1.2 Location. Executive will perform his duties remotely. Executive will be expected to travel as necessary to perform his duties and responsibilities and as reasonably requested by the Company.
1.3 Duties. The Executive shall have such powers, duties, authorities and responsibilities as are consistent with such position and as the Company may designate from time to time.
1.4 Exclusive Employment. Executive will devote Executive’s full working time and attention and Executive’s best efforts to the performance of Executive’s duties hereunder and the business and affairs of the Company. Executive shall not accept other employment as an employee or independent contractor at any time during this Agreement or Executive’s employment with the Company without first obtaining written approval from the Company, which may be withheld in the Company’s sole and absolute discretion.
1.5 Observance of Rules. Executive will duly, punctually and faithfully perform and observe any and all rules and regulations that the Company hereafter establishes governing the conduct of its business and personnel.
2. Term of Employment. Executive shall be employed by the Company for an initial term of three (3) years commencing on the Effective Date (the “Term”). The Term shall be extended for successive one (1) year period unless, not fewer than thirty (30) days prior to the commencement of the renewal date, either party shall have given written notice to the other that it does not wish to extend the Term, in which case, upon expiration of the initial Term or any extended Term, this Agreement (except as to provisions designed to survive termination) and Employee’s employment shall terminate or convert to an “at-will” employment relationship. The Term of this Agreement, and Executive’s employment, shall be subject to earlier termination as follows:
(a) Death. Upon the death of Executive, the employment of Executive pursuant to this Agreement shall immediately terminate;
(b) Disability. If Executive becomes unable to perform the duties specified hereunder due to partial or total disability or incapacity resulting from a mental or physical illness, injury, or any other medical cause, for a period of three consecutive full calendar months, or for a cumulative period of 90 business days within any one-year, then, the Company shall have the right to terminate Executive’s employment pursuant to this Agreement by written notice to Employment;
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(c) For Cause. At the option of the Company, for Cause, by delivering written notice to Executive of the Company’s determination to terminate. “Cause” shall mean (A) Executive’s fraud, dishonesty, theft or other deliberate injury to the Company or any of its affiliates in the performance of Executive’s duties under the terms of Executive’s employment and service as a director and/or officer (as applicable) of the Company and its affiliates; (B) any event that constitutes any material breach by Executive of fiduciary obligations of Executive to the Company or any affiliate of the Company; (C) Executive’s material failure, in the reasonable discretion of the Company, to follow the reasonable directives from Executive’s superiors, which failure is not cured within fifteen days after Executive receives notice thereof from the Company; (D) Executive’s conviction of or entering a plea of guilty or nolo contendere to a felony involving dishonesty or moral turpitude that could harm the Company’s business or reputation, regardless of whether such crime involves the Company or any affiliate of the Company; (E) Executive’s breach of any of the covenants set forth in this Agreement (or any similar covenants to which the Executive may be subject from time to time in connection with the Executive’s employment with the Company), which breach, if curable, is not cured within 30 days after Executive receives notice thereof from the Company; (F) Executive’s material violation of any written policies of the Company, which, is not cured within 30 days after Executive receives notice thereof from the Company, or the failure of the Executive to meet his annual goals or objectives as set out by the Board of Directors on an annual basis; (G) Executive’s violation of any law or regulation applicable to the Company or any of its subsidiaries or affiliates, or breach of any of Executive’s duties to the Company that, in each case, materially and adversely affects (economically, reputationally or otherwise), or would reasonably be expected to materially and adversely affect (economically, reputationally or otherwise), the Company and, if capable of being cured (as determined by the Company in its reasonable discretion), the continuance of such violation or breach for more than thirty (30) days after the Company, as the case may be, notifies Executive in writing of such violation or breach; or (H) Executive’s habitual abuse of drugs or alcohol, where such abuse adversely affects the performance of Executive’s duties to the Company.
(d) Without Cause. At the option of the Company, without Cause, by delivering written notice to Executive of the Company’s determination to terminate.
(e) Resignation for Good Reason. At the option of the Executive, for Good Reason, by delivering written notice to the Company describing in reasonable detail the occurrence of the event or circumstances for which Executive believes Executive may resign for Good Reason within thirty (30) days of the date Executive first becomes aware thereof and the Company shall not have cured such event or circumstance within thirty (30) days after the Company’s receipt of such notice. “Good Reason” shall mean, without Executive’s written consent: (A) the Company’s material breach of any provision of this Agreement; or (B) a material diminution Base Salary.
(f) Resignation Without Good Reason. At the option of Executive, without Good Reason, upon Executive’s provision of six (6) months prior written notice to the Company. The Company may, in its sole discretion, make the resignation effective earlier without converting it to a termination without Cause.
(g) Expiration of the Term. Upon expiration of the Term as a result of a non-renewal of this Agreement or the Term.
3. Compensation & Related Matters.
3.1 Base Salary. The Company shall pay to the Executive a base salary at an annual rate of $150,000, subject to applicable withholdings and deductions (the “Base Salary”). Base Salary shall be paid in accordance with the Company’s payroll practices in effect from time to time. The Base Salary shall be increased to an annual rate of $300,000 upon the Company achieving $3,000,000 in revenue during any ninety (90) day period, which will again be adjusted to $600,000 once the Company has achieved $6,000,000 in revenue during any ninety (90) day period and then after adjusted to a fair market rate.
3.2 Performance Bonus. Executive shall be eligible for an annualy performance bonus targeted to be equal to 2% of the Company’s net income as reflected in the Company’s financial statements (the “Performance Bonus”) as filed with the Securities and Exchange Commission (the “SEC”), subject to applicable withholdings and taxes, payable within thirty (30) days of the filing of such report with the SEC. Executive must be employed on the date the Performance Bonus is paid. Nothing in this Section 3.2. shall create an entitlement or expectation by the Executive of the payment of a bonus in any amount for any year.
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3.3 Option Grant. On the Effective Date, subject to applicable withholdings and taxes, the Company will grant Executive a stock option to acquire 2,000,000 shares of common at an exercise price of $7.20 per share (the “Grant”), with the intention to effect cashless exercise, that will be vest over four (4) years on a quarterly basis in twelve (12) equal installments commencing on the Grant Date (as defined below) and continuing thereafter at the end of each quarter. The Grant shall be granted under and subject to the terms of the Company’s proposed 2025 Omnibus Equity Incentive Plan (the “Plan”), which the Company intends to submit for board and shareholder approval at a future meeting. Notwithstanding any other provision in this Agreement, the Grant is expressly contingent upon, and shall not be effective until, the Company obtains the requisite approval of its shareholders for the Plan. If the shareholders of the Company approve the Plan, the Grant shall be deemed validly granted as of the date of such shareholder approval (the “Grant Date”). In no event shall any portion of the Grant become exercisable prior to the Grant Date. The Company and Executive shall promptly execute the Option Agreement consistent with the terms hereof. In the event that the Company’s shareholders do not approve the Plan, the Grant shall be null and void, and all outstanding options granted under this Agreement shall be automatically cancelled and forfeited, without any further action by the Company or Executive. In such a circumstance, the Company shall have no further obligation to provide the Grant to Executive, and Executive shall have no right to any compensation, damages, or other remedy related to the cancellation of the Grant.
3.4 Benefits. Executive shall be eligible during his employment to participate in any employee benefit plans or arrangements which may from time to time be made available by the Company to similarly situated Executives (collectively, “Benefit Plans”), subject to and on a basis consistent with the terms, conditions and overall administration of such Benefit Plans. Executive understands and acknowledges that any Benefit Plans may be amended from time to time by the Company in its sole discretion so long as the quality of benefits remain similar in nature. These Benefits Plans include: (i) participation in the Company’s medical, dental and vision insurance programs for Executive and Executive’s dependents; (ii) participation such other and further benefit plans that may be made available by the Company to similarly situated employees, on the same terms and conditions, including short and long-term disability benefits, life insurance, and 401-k or other retirement plan participation.
3.5 Vacation. Executive shall be eligible for four (4) weeks of paid vacation time in each calendar year of Executive’s employment (with Executive’s vacation entitlement pro-rated in the first year of Executive’s employment based on the Effective Date). During the initial year after the Effective Date, vacation time may not be taken before Executive completes three (3) months of continuous service. Executive shall also be eligible for all paid holidays recognized by the Company in any year. Executive will be entitled to carry over up to one week of accrued but unused vacation from one year to the next. Any remaining accrued but unused vacation will be forfeited to the extent permitted under applicable law.
3.6 Expenses. Executive shall be entitled to receive reimbursement for all reasonable business expenses incurred by Executive (in accordance with the policies and procedures then in effect and established by the Company) in the performance of Executive’s duties under this Agreement; provided that Executive properly accounts therefor and obtains any applicable prior written approval in accordance with Company policy.
4. Effect of Termination of Agreement or Executive’s Employment.
4.1 Payments Upon Termination Under Paragraphs 2(a)-(c), (f), (g). On termination of this Agreement or Executive’s employment with the Company for any of the reasons set forth in Paragraphs 2(a)-(c), (f) or (g), Executive shall be entitled to any unpaid Base Salary earned by Executive and, solely to the extent required by applicable law, any accrued but unused paid time off, in each case, up to the date of termination (“Accrued Benefits”), payable within 30 days following the Termination Date or in accordance with applicable state law. Executive expressly acknowledges that Executive will not be entitled to any further payments under this Agreement or otherwise.
4.2 Payments Upon Termination Under Paragraphs 2(d)-(e). On termination of this Agreement or Executive’s employment with the Company for any of the reasons set forth in Paragraphs 2(d)-(e), Executive shall receive, in addition to the Accrued Benefits a one time payment from the Company equal to the greater of $600,000 or the then current Base Salary multiplied by two (2) to be paid within six (6) months of termination (the “Severance”). As a condition of receipt of Severance (other than the Accrued Benefits), Executive must execute a general release of claims in a form provided by the Company and comply with any of Executive’s obligations under this Agreement designed to survive termination of this Agreement. Executive expressly acknowledges that Executive will not be entitled to any further payments under this Agreement or otherwise.
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4.3 Return of Company Property. Within ten days following the Termination Date, Executive or Executive’s personal representative shall return all property of the Company in Executive’s possession, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, facsimile machines, tablet computer and other communication devices, credit cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information (however stored) relating to the business of the Company and its affiliates, the Company’s customers and clients or its prospective customers and clients. Anything to the contrary notwithstanding, Executive shall be entitled to retain and continue to use (i) personal papers and other materials of a personal nature; provided, that such papers or materials do not include Confidential Information (as defined in the Confidentiality and Restrictive Covenant Agreement), (ii) information showing Executive’s compensation or relating to reimbursement of expenses, and (iii) copies of plans, programs and agreements relating to Executive’s employment, or termination thereof, with the Company which Executive received in Executive’s capacity as a participant.
4.4 Resignation as Officer or Board Member. Upon termination of this Agreement, Executive shall be deemed to have resigned, to the extent applicable, as an officer of the Company or any of its affiliates, as a member of each board of similar governing body of the Company or any of its affiliates, if applicable, and as a fiduciary of any employee benefit plan of the Company or any of its affiliates, if applicable. On or immediately following the termination date, Executive shall confirm the foregoing by submitting to the Company in writing a confirmation of Executive’s resignation(s).
4.5 Change in Control. Notwithstanding any provision in this Agreement or any equity award agreement to the contrary, in the event that the Executive’s employment is terminated by the Executive during the period commencing three (3) months following a Change in Control (the “Change in Control Period”), then effective as of the date of such termination one hundred percent (100%) of the Executive’s then-outstanding equity awards shall immediately accelerate and become fully vested and exercisable and the payments under Section 4.2 shall become immediately payable. For purposes of this Agreement, a “Change in Control” shall mean the consummation of any of the following events: (i) a merger, consolidation, or similar transaction in which the Company is not the surviving entity, except for a transaction in which the holders of the Company’s outstanding voting power immediately prior to such transaction continue to hold at least fifty percent (50%) of the outstanding voting power of the surviving entity or its parent immediately after such transaction; (ii) the sale, lease, or other disposition of all or substantially all of the assets of the Company to any person or entity other than a wholly-owned subsidiary of the Company; or (iii) an acquisition by any person, entity, or affiliated group of the beneficial ownership of more than fifty percent (50%) of the outstanding voting power of the Company; provided, however, that a Change in Control shall not be deemed to have occurred by virtue of a sale of securities by the Company in a financing transaction.
5. Confidentiality and Restrictive Covenant Agreement. It is a material condition of the Company’s willingness to employ Executive that Executive executes and complies with the Proprietary and Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement attached hereto as Exhibit A (collectively, the “Restrictive Covenant Agreements”). The Restrictive Covenant Agreements are incorporated by reference into this Agreement in its entirety as if set forth in full herein. Executive agrees and acknowledges that the Restrictive Covenant Agreements survive the termination of this Agreement or of Executive’s employment with the Company in all circumstances.
6. Mutual Agreement to Arbitrate. Executive and the Company agree that any and all disputes, claims or controversies arising under this Agreement or out of the Executive’s employment with the company shall be resolved by final and binding arbitration pursuant to the terms and conditions of the Mutual Agreement to Arbitrate. A copy of the Mutual Agreement to Arbitrate is attached hereto as Exhibit B. The Mutual Agreement to Arbitrate is incorporated by reference into this Agreement in its entirety as if set forth in full herein. Executive agrees and acknowledges that the Mutual Agreement to Arbitrate survives the termination of this Agreement or of Executive’s employment with the Company in all circumstances.
7. Miscellaneous.
7.1 No Conflict or Legal Restriction on Employment. Executive acknowledges and represents that Executive is not party to any agreement or understanding that restricts or interferes with Executive’s employment with the Company and that, should this representation be untrue or incorrect, Executive shall be responsible for indemnifying the Company for all damages and attorneys’ fees incurred by the Company as a result.
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7.2 No Waiver. No failure by Company to exercise any right, power, or privilege that it may have under either this Agreement, the Restrictive Covenant Agreements, the Mutual Agreement to Arbitrate, or any other agreement to which the Company may be a party, shall operate as a waiver thereof. Further, no waiver by Company or any deviation from, or breach of either this Agreement, the Restrictive Covenant Agreements or the Mutual Agreement to Arbitrate by Executive shall be deemed to be a waiver of any subsequent deviation or breach.
7.3 Assignment. Executive may not assign this Agreement or any of Executive’s rights and duties hereunder. The Company may assign this Agreement to an entity controlling, controlled by, or under common control with the Company or to an entity that acquires all or substantially all of the equity or assets of the Company. The provisions of this Agreement shall be binding on and shall inure to the benefit of the Company and its successors and assigns, including, without limitation, any successor in interest to the Company who acquires (directly or indirectly) all or substantially all of the Company’s equity or assets.
7.4 Severability. If any one or more of the provisions contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect by a final judicial determination made by a court of competent jurisdiction or in arbitration, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
7.5 Governing Law. This Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be governed and construed in accordance with the internal laws of the State of California applicable to contracts made and wholly performed within such state, without regard to any applicable conflicts of law principles that would result in the application of the laws of any other jurisdiction.
7.6 Entire Agreement. This Agreement, together with the Restrictive Covenant Agreements and the Mutual Agreement to Arbitrate, replace and supersede in their entirety, all previous agreements between Executive and the Company, and any representations made to the Executive by any person associated with the Company, whether orally or in writing, concerning the subject matter hereof. This Agreement may not be amended, supplemented, canceled or discharged except by written instrument executed by both parties hereto.
7.7 Counterparts. This Agreement may be executed in separate counterparts, any one of which need not contain signatures of more than one party, but all of which taken together will constitute one and the same Agreement.
7.8 Acknowledgment. Executive represents and warrants that: (a) Executive has consulted with independent legal counsel regarding Executive’s rights and obligations under this Agreement or has voluntarily chosen not to do so, and that Executive fully understands the terms and conditions contained herein; (b) Executive’s execution, delivery and performance of this Agreement do not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which Executive is bound; (c) Executive is not a party to or bound by any employment agreement, noncompetition agreement or confidentiality agreement with any other person or entity that would be in direct conflict to this Agreement, and Executive is not subject to any other agreement that, in each case, would prevent Executive from performing Executive’s duties for the Company or otherwise complying with this Agreement; (d) Executive represents that this contract will not breach any existing nondisclosure agreement, including any agreement concerning trade secrets or confidential information owned by any other party; and (e) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
Noam Kenig, Executive
/s/ Noam Kenig
VISIONWAVE HOLDINGS, INC.
By:/s/ Haggai Ravid
Name: Haggai Ravid
Title: Audit Committee Chair and Director
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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into as of this 6th day of August 2025 (“Effective Date”), by and between VisionWave Holdings, Inc., 300 Delaware Ave., Suite 210#301, Wilmington, Delaware 19801 (the “Company”) and Danny Rittman (“Executive”).
WHEREAS, the Company desires to employ the Executive following the Effective Date in the position of Chief Technology Officer and enter into this Agreement;
WHEREAS, Executive wishes to accept employment with the Company on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the respective covenants and commitments of the parties hereto as set forth in this Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Position and Responsibilities.
1.1 Position. Company will employ Executive as Executive Chairman, effective as of the Effective Date. The Executive will report to the Board of Directors.
1.2 Location. Executive will perform his duties remotely. Executive will be expected to travel as necessary to perform his duties and responsibilities and as reasonably requested by the Company.
1.3 Duties. The Executive shall have such powers, duties, authorities and responsibilities as are consistent with such position and as the Company may designate from time to time.
1.4 Exclusive Employment. Executive will devote Executive’s full working time and attention and Executive’s best efforts to the performance of Executive’s duties hereunder and the business and affairs of the Company. Executive shall not accept other employment as an employee or independent contractor at any time during this Agreement or Executive’s employment with the Company without first obtaining written approval from the Company, which may be withheld in the Company’s sole and absolute discretion.
1.5 Observance of Rules. Executive will duly, punctually and faithfully perform and observe any and all rules and regulations that the Company hereafter establishes governing the conduct of its business and personnel.
2. Term of Employment. Executive shall be employed by the Company for an initial term of three (3) years commencing on the Effective Date (the “Term”). The Term shall be extended for successive one (1) year period unless, not fewer than thirty (30) days prior to the commencement of the renewal date, either party shall have given written notice to the other that it does not wish to extend the Term, in which case, upon expiration of the initial Term or any extended Term, this Agreement (except as to provisions designed to survive termination) and Employee’s employment shall terminate or convert to an “at-will” employment relationship. The Term of this Agreement, and Executive’s employment, shall be subject to earlier termination as follows:
(a) Death. Upon the death of Executive, the employment of Executive pursuant to this Agreement shall immediately terminate;
(b) Disability. If Executive becomes unable to perform the duties specified hereunder due to partial or total disability or incapacity resulting from a mental or physical illness, injury, or any other medical cause, for a period of three consecutive full calendar months, or for a cumulative period of 90 business days within any one-year, then, the Company shall have the right to terminate Executive’s employment pursuant to this Agreement by written notice to Employment;
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(c) For Cause. At the option of the Company, for Cause, by delivering written notice to Executive of the Company’s determination to terminate. “Cause” shall mean (A) Executive’s fraud, dishonesty, theft or other deliberate injury to the Company or any of its affiliates in the performance of Executive’s duties under the terms of Executive’s employment and service as a director and/or officer (as applicable) of the Company and its affiliates; (B) any event that constitutes any material breach by Executive of fiduciary obligations of Executive to the Company or any affiliate of the Company; (C) Executive’s material failure, in the reasonable discretion of the Company, to follow the reasonable directives from Executive’s superiors, which failure is not cured within fifteen days after Executive receives notice thereof from the Company; (D) Executive’s conviction of or entering a plea of guilty or nolo contendere to a felony involving dishonesty or moral turpitude that could harm the Company’s business or reputation, regardless of whether such crime involves the Company or any affiliate of the Company; (E) Executive’s breach of any of the covenants set forth in this Agreement (or any similar covenants to which the Executive may be subject from time to time in connection with the Executive’s employment with the Company), which breach, if curable, is not cured within 30 days after Executive receives notice thereof from the Company; (F) Executive’s material violation of any written policies of the Company, which, is not cured within 30 days after Executive receives notice thereof from the Company, or the failure of the Executive to meet his annual goals or objectives as set out by the Board of Directors on an annual basis; (G) Executive’s violation of any law or regulation applicable to the Company or any of its subsidiaries or affiliates, or breach of any of Executive’s duties to the Company that, in each case, materially and adversely affects (economically, reputationally or otherwise), or would reasonably be expected to materially and adversely affect (economically, reputationally or otherwise), the Company and, if capable of being cured (as determined by the Company in its reasonable discretion), the continuance of such violation or breach for more than thirty (30) days after the Company, as the case may be, notifies Executive in writing of such violation or breach; or (H) Executive’s habitual abuse of drugs or alcohol, where such abuse adversely affects the performance of Executive’s duties to the Company.
(d) Without Cause. At the option of the Company, without Cause, by delivering written notice to Executive of the Company’s determination to terminate.
(e) Resignation for Good Reason. At the option of the Executive, for Good Reason, by delivering written notice to the Company describing in reasonable detail the occurrence of the event or circumstances for which Executive believes Executive may resign for Good Reason within thirty (30) days of the date Executive first becomes aware thereof and the Company shall not have cured such event or circumstance within thirty (30) days after the Company’s receipt of such notice. “Good Reason” shall mean, without Executive’s written consent: (A) the Company’s material breach of any provision of this Agreement; or (B) a material diminution Base Salary.
(f) Resignation Without Good Reason. At the option of Executive, without Good Reason, upon Executive’s provision of six (6) months prior written notice to the Company. The Company may, in its sole discretion, make the resignation effective earlier without converting it to a termination without Cause.
(g) Expiration of the Term. Upon expiration of the Term as a result of a non-renewal of this Agreement or the Term.
3. Compensation & Related Matters.
3.1 Base Salary. The Company shall pay to the Executive a base salary at an annual rate of $120,000, subject to applicable withholdings and deductions (the “Base Salary”). Base Salary shall be paid in accordance with the Company’s payroll practices in effect from time to time. The Base Salary shall be increased to an annual rate of $240,000 upon the Company achieving $3,000,000 in revenue during any ninety (90) day period, which will again be adjusted to $360,000 once the Company has achieved $6,000,000 in revenue during any ninety (90) day period and then after adjusted to a fair market rate.
3.2 Intentionally Left Blank.
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3.3 Option Grant. On the Effective Date, subject to applicable withholdings and taxes, the Company will grant Executive a stock option to acquire 500,000 shares of common at an exercise price of $7.20 per share (the “Grant”), with the intention to effect cashless exercise, that will be vest over four (4) years on a quarterly basis in twelve (12) equal installments commencing on the Grant Date (as defined below) and continuing thereafter at the end of each quarter. The Grant shall be granted under and subject to the terms of the Company’s proposed 2025 Omnibus Equity Incentive Plan (the “Plan”), which the Company intends to submit for board and shareholder approval at a future meeting. Notwithstanding any other provision in this Agreement, the Grant is expressly contingent upon, and shall not be effective until, the Company obtains the requisite approval of its shareholders for the Plan. If the shareholders of the Company approve the Plan, the Grant shall be deemed validly granted as of the date of such shareholder approval (the “Grant Date”). In no event shall any portion of the Grant become exercisable prior to the Grant Date. The Company and Executive shall promptly execute the Option Agreement consistent with the terms hereof. In the event that the Company’s shareholders do not approve the Plan, the Grant shall be null and void, and all outstanding options granted under this Agreement shall be automatically cancelled and forfeited, without any further action by the Company or Executive. In such a circumstance, the Company shall have no further obligation to provide the Grant to Executive, and Executive shall have no right to any compensation, damages, or other remedy related to the cancellation of the Grant.
3.4 Benefits. Executive shall be eligible during his employment to participate in any employee benefit plans or arrangements which may from time to time be made available by the Company to similarly situated Executives (collectively, “Benefit Plans”), subject to and on a basis consistent with the terms, conditions and overall administration of such Benefit Plans. Executive understands and acknowledges that any Benefit Plans may be amended from time to time by the Company in its sole discretion so long as the quality of benefits remain similar in nature. These Benefits Plans include: (i) participation in the Company’s medical, dental and vision insurance programs for Executive and Executive’s dependents; (ii) participation such other and further benefit plans that may be made available by the Company to similarly situated employees, on the same terms and conditions, including short and long-term disability benefits, life insurance, and 401-k or other retirement plan participation.
3.5 Vacation. Executive shall be eligible for four (4) weeks of paid vacation time in each calendar year of Executive’s employment (with Executive’s vacation entitlement pro-rated in the first year of Executive’s employment based on the Effective Date). During the initial year after the Effective Date, vacation time may not be taken before Executive completes three (3) months of continuous service. Executive shall also be eligible for all paid holidays recognized by the Company in any year. Executive will be entitled to carry over up to one week of accrued but unused vacation from one year to the next. Any remaining accrued but unused vacation will be forfeited to the extent permitted under applicable law.
3.6 Expenses. Executive shall be entitled to receive reimbursement for all reasonable business expenses incurred by Executive (in accordance with the policies and procedures then in effect and established by the Company) in the performance of Executive’s duties under this Agreement; provided that Executive properly accounts therefor and obtains any applicable prior written approval in accordance with Company policy.
4. Effect of Termination of Agreement or Executive’s Employment.
4.1 Payments Upon Termination Under Paragraphs 2(a)-(c), (f), (g). On termination of this Agreement or Executive’s employment with the Company for any of the reasons set forth in Paragraphs 2(a)-(c), (f) or (g), Executive shall be entitled to any unpaid Base Salary earned by Executive and, solely to the extent required by applicable law, any accrued but unused paid time off, in each case, up to the date of termination (“Accrued Benefits”), payable within 30 days following the Termination Date or in accordance with applicable state law. Executive expressly acknowledges that Executive will not be entitled to any further payments under this Agreement or otherwise.
4.2 Payments Upon Termination Under Paragraphs 2(d)-(e). On termination of this Agreement or Executive’s employment with the Company for any of the reasons set forth in Paragraphs 2(d)-(e), Executive shall receive, in addition to the Accrued Benefits a one time payment from the Company equal to the greater of $600,000 or the then current Base Salary multiplied by two (2) to be paid within six (6) months of termination (the “Severance”). As a condition of receipt of Severance (other than the Accrued Benefits), Executive must execute a general release of claims in a form provided by the Company and comply with any of Executive’s obligations under this Agreement designed to survive termination of this Agreement. Executive expressly acknowledges that Executive will not be entitled to any further payments under this Agreement or otherwise.
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4.3 Return of Company Property. Within ten days following the Termination Date, Executive or Executive’s personal representative shall return all property of the Company in Executive’s possession, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, facsimile machines, tablet computer and other communication devices, credit cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information (however stored) relating to the business of the Company and its affiliates, the Company’s customers and clients or its prospective customers and clients. Anything to the contrary notwithstanding, Executive shall be entitled to retain and continue to use (i) personal papers and other materials of a personal nature; provided, that such papers or materials do not include Confidential Information (as defined in the Confidentiality and Restrictive Covenant Agreement), (ii) information showing Executive’s compensation or relating to reimbursement of expenses, and (iii) copies of plans, programs and agreements relating to Executive’s employment, or termination thereof, with the Company which Executive received in Executive’s capacity as a participant.
4.4 Resignation as Officer or Board Member. Upon termination of this Agreement, Executive shall be deemed to have resigned, to the extent applicable, as an officer of the Company or any of its affiliates, as a member of each board of similar governing body of the Company or any of its affiliates, if applicable, and as a fiduciary of any employee benefit plan of the Company or any of its affiliates, if applicable. On or immediately following the termination date, Executive shall confirm the foregoing by submitting to the Company in writing a confirmation of Executive’s resignation(s).
4.5 Change in Control. Notwithstanding any provision in this Agreement or any equity award agreement to the contrary, in the event that the Executive’s employment is terminated by the Executive during the period commencing three (3) months following a Change in Control (the “Change in Control Period”), then effective as of the date of such termination one hundred percent (100%) of the Executive’s then-outstanding equity awards shall immediately accelerate and become fully vested and exercisable and the payments under Section 4.2 shall become immediately payable. For purposes of this Agreement, a “Change in Control” shall mean the consummation of any of the following events: (i) a merger, consolidation, or similar transaction in which the Company is not the surviving entity, except for a transaction in which the holders of the Company’s outstanding voting power immediately prior to such transaction continue to hold at least fifty percent (50%) of the outstanding voting power of the surviving entity or its parent immediately after such transaction; (ii) the sale, lease, or other disposition of all or substantially all of the assets of the Company to any person or entity other than a wholly-owned subsidiary of the Company; or (iii) an acquisition by any person, entity, or affiliated group of the beneficial ownership of more than fifty percent (50%) of the outstanding voting power of the Company; provided, however, that a Change in Control shall not be deemed to have occurred by virtue of a sale of securities by the Company in a financing transaction.
5. Confidentiality and Restrictive Covenant Agreement. It is a material condition of the Company’s willingness to employ Executive that Executive executes and complies with the Proprietary and Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement attached hereto as Exhibit A (collectively, the “Restrictive Covenant Agreements”). The Restrictive Covenant Agreements are incorporated by reference into this Agreement in its entirety as if set forth in full herein. Executive agrees and acknowledges that the Restrictive Covenant Agreements survive the termination of this Agreement or of Executive’s employment with the Company in all circumstances.
6. Mutual Agreement to Arbitrate. Executive and the Company agree that any and all disputes, claims or controversies arising under this Agreement or out of the Executive’s employment with the company shall be resolved by final and binding arbitration pursuant to the terms and conditions of the Mutual Agreement to Arbitrate. A copy of the Mutual Agreement to Arbitrate is attached hereto as Exhibit B. The Mutual Agreement to Arbitrate is incorporated by reference into this Agreement in its entirety as if set forth in full herein. Executive agrees and acknowledges that the Mutual Agreement to Arbitrate survives the termination of this Agreement or of Executive’s employment with the Company in all circumstances.
7. Miscellaneous.
7.1 No Conflict or Legal Restriction on Employment. Executive acknowledges and represents that Executive is not party to any agreement or understanding that restricts or interferes with Executive’s employment with the Company and that, should this representation be untrue or incorrect, Executive shall be responsible for indemnifying the Company for all damages and attorneys’ fees incurred by the Company as a result.
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7.2 No Waiver. No failure by Company to exercise any right, power, or privilege that it may have under either this Agreement, the Restrictive Covenant Agreements, the Mutual Agreement to Arbitrate, or any other agreement to which the Company may be a party, shall operate as a waiver thereof. Further, no waiver by Company or any deviation from, or breach of either this Agreement, the Restrictive Covenant Agreements or the Mutual Agreement to Arbitrate by Executive shall be deemed to be a waiver of any subsequent deviation or breach.
7.3 Assignment. Executive may not assign this Agreement or any of Executive’s rights and duties hereunder. The Company may assign this Agreement to an entity controlling, controlled by, or under common control with the Company or to an entity that acquires all or substantially all of the equity or assets of the Company. The provisions of this Agreement shall be binding on and shall inure to the benefit of the Company and its successors and assigns, including, without limitation, any successor in interest to the Company who acquires (directly or indirectly) all or substantially all of the Company’s equity or assets.
7.4 Severability. If any one or more of the provisions contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect by a final judicial determination made by a court of competent jurisdiction or in arbitration, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
7.5 Governing Law. This Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be governed and construed in accordance with the internal laws of the State of California applicable to contracts made and wholly performed within such state, without regard to any applicable conflicts of law principles that would result in the application of the laws of any other jurisdiction.
7.6 Entire Agreement. This Agreement, together with the Restrictive Covenant Agreements and the Mutual Agreement to Arbitrate, replace and supersede in their entirety, all previous agreements between Executive and the Company, and any representations made to the Executive by any person associated with the Company, whether orally or in writing, concerning the subject matter hereof. This Agreement may not be amended, supplemented, canceled or discharged except by written instrument executed by both parties hereto.
7.7 Counterparts. This Agreement may be executed in separate counterparts, any one of which need not contain signatures of more than one party, but all of which taken together will constitute one and the same Agreement.
7.8 Acknowledgment. Executive represents and warrants that: (a) Executive has consulted with independent legal counsel regarding Executive’s rights and obligations under this Agreement or has voluntarily chosen not to do so, and that Executive fully understands the terms and conditions contained herein; (b) Executive’s execution, delivery and performance of this Agreement do not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which Executive is bound; (c) Executive is not a party to or bound by any employment agreement, noncompetition agreement or confidentiality agreement with any other person or entity that would be in direct conflict to this Agreement, and Executive is not subject to any other agreement that, in each case, would prevent Executive from performing Executive’s duties for the Company or otherwise complying with this Agreement; (d) Executive represents that this contract will not breach any existing nondisclosure agreement, including any agreement concerning trade secrets or confidential information owned by any other party; and (e) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
Danny Rittman, Executive
/s/ Danny Rittman
VISIONWAVE HOLDINGS, INC.
By:/s/ Haggai Ravid
Name: Haggai Ravid
Title: Audit Committee Chair and Director
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EXHIBIT 10.5
VISIONWAVE HOLDINGS, INC.
EMPLOYEE NONSTATUTORY STOCK OPTION AGREEMENT
This Employee Nonstatutory Stock Option Agreement (“Agreement”) is made and entered into as of the date set forth below, by and between VISIONWAVE HOLDINGS, INC., a Delaware corporation (the “Company”), and the following employee of the Company (“Optionee”):
In consideration of the covenants herein set forth, the parties hereto agree as follows:
1. Option Information.
| (a) | Date of Option: | August 6, 2025 | |
| (b) | Optionee: | ||
| (c) | Number of Shares: | ||
| (d) | Exercise Price: | $7.20 |
2. Acknowledgements.
(a) Optionee is an employee of the Company.
(b) The Board of Directors (the “Board” which term shall include an authorized committee of the Board of Directors) have heretofore adopted a 2025 Omnibus Equity Incentive Plan (the “Plan”), pursuant to which this Option is being granted. The Option is expressly contingent upon, and shall not be effective until, the Company obtains the requisite approval of its shareholders for the Plan. If the shareholders of the Company approve the Plan, the Option shall be deemed validly granted as of the date of such shareholder approval (the “Approval Date”). In no event shall any portion of the Option become exercisable prior to the Approval Date. In the event that the Company’s shareholders do not approve the Plan, the Option shall be null and void, and shall be automatically cancelled and forfeited, without any further action by the Company or Optionee. In such a circumstance, the Company shall have no further obligation to provide the Option to Optionee, and Optionee shall have no right to any compensation, damages, or other remedy related to the cancellation of the Option; and
(c) The Board has authorized the granting to Optionee of a nonstatutory stock option (“Option”) to purchase shares of common stock of the Company (“Stock”) upon the terms and conditions hereinafter stated and pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”) provided by Rule 701 thereunder.
3. Shares; Price. Company hereby grants to Optionee the right to purchase, upon and subject to the terms and conditions herein stated, the number of shares of Stock set forth in Section 1(c) above (the “Shares”) for cash (or other consideration as is authorized under the Plan and acceptable to the Board of Directors of the Company, in their sole and absolute discretion) at the price per Share set forth in Section 1(d) above (the “Exercise Price”), such price being not less than eighty-five percent (85%) of the fair market value per share of the Shares covered by this Option as of the date hereof.
4. Term of Option; Continuation of Service. This Option shall expire, and all rights hereunder to purchase the Shares shall terminate, five (5) years from the date hereof. This Option shall earlier terminate subject to Sections 7 and 8 hereof upon, and as of the date of, the termination of Optionee’s employment if such termination occurs prior to the end of such five (5) year period. Nothing contained herein shall confer upon Optionee the right to the continuation of his or her employment by the Company or to interfere with the right of the Company to terminate such employment or to increase or decrease the compensation of Optionee from the rate in existence at the date hereof.
5. Vesting of Option. Subject to the provisions of Sections 7 and 8 hereof, this Option shall become exercisable during the term of Optionee’s employment in twelve (12) equal quarterly installments of 8.33% of the Shares covered by this Option, the first installment to be exercisable on the Approval Date, with an additional 8.33% of such Shares becoming exercisable on each of the successive (11) successive quarterly anniversary dates. The installments shall be cumulative (i.e., this option may be exercised, as to any or all shares covered by an installment, at any time or times after an installment becomes exercisable and until expiration or termination of this option).
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6. Exercise. After the Approval Date, this Option shall be exercised by delivery to the Company of (a) written notice of exercise stating the number of Shares being purchased (in whole shares only) and such other information set forth on the form of Notice of Exercise attached hereto as Appendix A, (b) a check or cash in the amount of the Exercise Price of the Shares covered by the notice (or such other consideration as has been approved by the Board of Directors consistent with the Plan) and (c) a written investment representation as provided for in Section 13 hereof. Notwithstanding anything to the contrary contained in this Option, this Option may be exercised by presentation and surrender of this Option to the Company at its principal executive offices with a written notice of the holder’s intention to effect a cashless exercise, including a calculation of the number of shares of Common Stock to be issued upon such exercise in accordance with the terms hereof (a “Cashless Exercise”). In the event of a Cashless Exercise, in lieu of paying the Exercise Price in cash, the holder shall surrender this Option for that number of shares of Common Stock determined by multiplying the number of Shares to which it would otherwise be entitled by a fraction, the numerator of which shall be the difference between the then current Market Price per share of the Common Stock and the Exercise Price, and the denominator of which shall be the then current Market Price per share of Common Stock. For example, if the holder is exercising 100,000 Options with a per option exercise price of $0.75 per share through a cashless exercise when the Common Stock’s current Market Price per share is $2.00 per share, then upon such Cashless Exercise the holder will receive 62,500 shares of Common Stock. Market Price is defined as the average of the last reported sale prices on the principal trading market for the Common Stock during the five (5) trading days immediately preceding such date. This Option shall not be assignable or transferable, except by will or by the laws of descent and distribution, and shall be exercisable only by Optionee during his or her lifetime, except as provided in Section 8 hereof.
7. Termination of Employment. If Optionee shall cease to be employed by the Company for any reason, whether voluntarily or involuntarily, other than by his or her death, Optionee (or if the Optionee shall die after such termination, but prior to such exercise date, Optionee’s personal representative or the person entitled to succeed to the Option) shall have the right at any time within one (1) month following such termination of employment or the remaining term of this Option, whichever is the lesser, to exercise in whole or in part this Option to the extent, but only to the extent, that this Option was exercisable as of the date of termination of employment and had not previously been exercised; provided, however: (i) if Optionee is permanently disabled (within the meaning of Section 22(e)(3) of the Code) at the time of termination, the foregoing one (1) month period shall be extended to six (6) months; or (ii) if Optionee is terminated “for cause”, or by the terms of the Plan or this Option Agreement or by any employment agreement between the Optionee and the Company, this Option shall automatically terminate as to all Shares covered by this Option not exercised prior to termination.
Unless earlier terminated, all rights under this Option shall terminate in any event on the expiration date of this Option as defined in Section 4 hereof.
8. Death of Optionee. If the Optionee shall die while in the employ of the Company, Optionee’s personal representative or the person entitled to Optionee’s rights hereunder may at any time within six (6) months after the date of Optionee’s death, or during the remaining term of this Option, whichever is the lesser, exercise this Option and purchase Shares to the extent, but only to the extent, that Optionee could have exercised this Option as of the date of Optionee’s death; provided, in any case, that this Option may be so exercised only to the extent that this Option has not previously been exercised by Optionee.
9. No Rights as Shareholder. Optionee shall have no rights as a shareholder with respect to the Shares covered by any installment of this Option until the effective date of issuance of the Shares following exercise of this Option, and no adjustment will be made for dividends or other rights for which the record date is prior to the date such stock certificate or certificates are issued except as provided in Section 10 hereof.
10. Recapitalization. Subject to any required action by the shareholders of the Company, the number of Shares covered by this Option, and the Exercise Price thereof, shall be proportionately adjusted for any increase or decrease in the number of issued shares resulting from a subdivision or consolidation of shares or the payment of a stock dividend, or any other increase or decrease in the number of such shares effected without receipt of consideration by the Company; provided however that the conversion of any convertible securities of the Company shall not be deemed having been “effected without receipt of consideration by the Company”.
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In the event of a proposed dissolution or liquidation of the Company, a merger or consolidation in which the Company is not the surviving entity, or a sale of all or substantially all of the assets or capital stock of the Company (collectively, a “Reorganization”), unless otherwise provided by the Board, this Option shall terminate immediately prior to such date as is determined by the Board, which date shall be no later than the consummation of such Reorganization. In such event, if the entity which shall be the surviving entity does not tender to Optionee an offer, for which it has no obligation to do so, to substitute for any unexercised Option a stock option or capital stock of such surviving of such surviving entity, as applicable, which on an equitable basis shall provide the Optionee with substantially the same economic benefit as such unexercised Option, then the Board may grant to such Optionee, in its sole and absolute discretion and without obligation, the right for a period commencing thirty (30) days prior to and ending immediately prior to the date determined by the Board pursuant hereto for termination of the Option or during the remaining term of the Option, whichever is the lesser, to exercise any unexpired Option or Options without regard to the installment provisions of Section 5; provided, however, that such exercise shall be subject to the consummation of such Reorganization.
Subject to any required action by the shareholders of the Company, if the Company shall be the surviving entity in any merger or consolidation, this Option thereafter shall pertain to and apply to the securities to which a holder of Shares equal to the Shares subject to this Option would have been entitled by reason of such merger or consolidation, and the installment provisions of Section 5 shall continue to apply.
To the extent that the foregoing adjustments relate to shares or securities of the Company, such adjustments shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as hereinbefore expressly provided, Optionee shall have no rights by reason of any subdivision or consolidation of shares of Stock of any class or the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class, and the number and price of Shares subject to this Option shall not be affected by, and no adjustments shall be made by reason of, any dissolution, liquidation, merger, consolidation or sale of assets or capital stock, or any issue by the Company of shares of stock of any class or securities convertible into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes in its capital or business structure or to merge, consolidate, dissolve or liquidate or to sell or transfer all or any part of its business or assets.
11. Taxation upon Exercise of Option. Optionee understands that, upon exercise of this Option, Optionee will recognize income, for Federal and state income tax purposes, in an amount equal to the amount by which the fair market value of the Shares, determined as of the date of exercise, exceeds the Exercise Price. The acceptance of the Shares by Optionee shall constitute an agreement by Optionee to report such income in accordance with then applicable law and to cooperate with Company in establishing the amount of such income and corresponding deduction to the Company for its income tax purposes. Withholding for federal or state income and employment tax purposes will be made, if and as required by law, from Optionee’s then current compensation, or, if such current compensation is insufficient to satisfy withholding tax liability, the Company may require Optionee to make a cash payment to cover such liability as a condition of the exercise of this Option.
12. Modification, Extension and Renewal of Options. The Board or Committee, as described in the Plan, may modify, extend or renew this Option or accept the surrender thereof (to the extent not theretofore exercised) and authorize the granting of a new option in substitution therefore (to the extent not theretofore exercised), subject at all times to the Plan and the Code. Notwithstanding the foregoing provisions of this Section 12, no modification shall, without the consent of the Optionee, alter to the Optionee’s detriment or impair any rights of Optionee hereunder.
13. Investment Intent; Restrictions on Transfer.
(a) Optionee represents and agrees that if Optionee exercises this Option in whole or in part, Optionee will in each case acquire the Shares upon such exercise for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof; and that upon such exercise of this Option in whole or in part, Optionee (or any person or persons entitled to exercise this Option under the provisions of Sections 7 and 8 hereof) shall furnish to the Company a written statement to such effect, satisfactory to the Company in form and substance. If the Shares represented by this Option are registered under the Securities Act, either before or after the exercise of this Option in whole or in part, the Optionee shall be relieved of the foregoing investment representation and agreement and shall not be required to furnish the Company with the foregoing written statement.
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(b) Optionee further represents that Optionee has had access to the financial statements or books and records of the Company, has had the opportunity to ask questions of the Company concerning its business, operations and financial condition, and to obtain additional information reasonably necessary to verify the accuracy of such information
(c) Unless and until the Shares represented by this Option are registered under the Securities Act, all certificates representing the Shares and any certificates subsequently issued in substitution therefor and any certificate for any securities issued pursuant to any stock split, share reclassification, stock dividend or other similar capital event shall bear legends in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE SECURITIES ACT OF 1933 (THE ‘SECURITIES ACT’) OR UNDER THE APPLICABLE OR SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO THAT CERTAIN NONSTATUTORY STOCK OPTION AGREEMENT DATED ____________ BETWEEN THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE SHARES WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem necessary or appropriate. Appropriate stop transfer instructions with respect to the Shares have been placed with the Company’s transfer agent.
14. Stand-off Agreement. Optionee agrees that, in connection with any registration of the Company’s securities under the Securities Act, and upon the request of the Company or any underwriter managing an underwritten offering of the Company’s securities, Optionee shall not sell, short any sale of, loan, grant an option for, or otherwise dispose of any of the Shares (other than Shares included in the offering) without the prior written consent of the Company or such managing underwriter, as applicable, for a period of at least one year following the effective date of registration of such offering.
15. Intentionally left blank.
16. Notices. Any notice required to be given pursuant to this Option or the Plan shall be in writing and shall be deemed to be delivered upon receipt or, in the case of notices by the Company, five (5) days after deposit in the U.S. mail, postage prepaid, addressed to Optionee at the address last provided by Optionee for his or her employee records.
17. Agreement Subject to Plan; Applicable Law. This Option is made pursuant to the Plan and shall be interpreted to comply therewith. A copy of such Plan is available to Optionee, at no charge, at the principal office of the Company. Any provision of this Option inconsistent with the Plan shall be considered void and replaced with the applicable provision of the Plan. This Option has been granted, executed and delivered in the State of Delaware, and the interpretation and enforcement shall be governed by the laws thereof and subject to the exclusive jurisdiction of the courts therein.
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In Witness Whereof, the parties hereto have executed this Option as of the date first above written.
| COMPANY: | VISIONWAVE HOLDINGS, INC., | |
| a Delaware corporation | ||
| By: | ||
| Name: | Haggai Ravid | |
| Title: | Audit Committee Chair and Director | |
| OPTIONEE: | ||
| By: | ||
| (signature) | ||
| Name: | ||
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Appendix A
NOTICE OF EXERCISE
VISIONWAVE HOLDINGS, INC.
_________________
_________________
_________________
Re: Nonstatutory Stock Option
1) Notice is hereby given pursuant to Section 6 of my Nonstatutory Stock Option Agreement that I elect to purchase the number of shares set forth below at the exercise price set forth in my option agreement:
Nonstatutory Stock Option Agreement dated: ____________
Number of shares being purchased: ____________
Exercise Price: $____________
A check in the amount of the aggregate price of the shares being purchased is attached.
OR
2) I elect a cashless exercise pursuant to Section 6 of my Nonstatutory Stock Option Agreement. The Average Market Price as of _______ was $_____.
I hereby confirm that such shares are being acquired by me for my own account for investment purposes, and not with a view to, or for resale in connection with, any distribution thereof. I will not sell or dispose of my Shares in violation of the Securities Act of 1933, as amended, or any applicable federal or state securities laws. Further, I understand that the exemption from taxable income at the time of exercise is dependent upon my holding such stock for a period of at least one year from the date of exercise and two years from the date of grant of the Option.
I understand that the certificate representing the Option Shares will bear a restrictive legend within the contemplation of the Securities Act and as required by such other state or federal law or regulation applicable to the issuance or delivery of the Option Shares.
I agree to provide to the Company such additional documents or information as may be required pursuant to the Company’s 2025 Omnibus Equity Incentive Plan.
| By: | ||
| (signature) | ||
| Name: |
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EXHIBIT 10.6
PROPRIETARY & CONFIDENTIAL INFORMATION, INVENTIONS
ASSIGNMENT,
NON-SOLICITATION AND NON-COMPETITION AGREEMENT
In consideration of my employment by VisionWave Holdings, Inc. (“VISIONWAVE”), and the compensation now and hereafter paid to me, I, _________ (“Employee”), am executing this Proprietary and Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement (the “Agreement”):
| 1. | NONDISCLOSURE. |
A. Recognition of Company’s Rights; Nondisclosure. Employee understands and acknowledges that Employee’s employment by VISIONWAVE creates a relationship of confidence and trust with respect to the VISIONWAVE’S Proprietary and Confidential Information (defined below) and that VISIONWAVE has a protectable interest therein. At all times during Employee’s employment and thereafter, Employee will hold in strictest confidence and will not disclose any of VISIONWAVE’S Proprietary and Confidential Information, except as such disclosure may be required in connection with Employee’s work for VISIONWAVE, or unless an officer of VISIONWAVE expressly authorizes such in writing. Employee hereby assigns to VISIONWAVE any rights Employee may have or acquire in such Proprietary and Confidential Information and recognizes that all Proprietary and Confidential Information shall be the sole property of VISIONWAVE and its assigns. Employee will take all reasonable precautions to prevent the inadvertent or accidental disclosure of Proprietary and Confidential Information.
B. Proprietary and Confidential Information. The term “Proprietary and Confidential Information” shall mean any and all confidential and/or proprietary knowledge, data or information of VISIONWAVE, its affiliates, parents and subsidiaries, whether having existed, now existing, or to be developed during Employee’s employment. By way of illustration but not limitation, Proprietary and Confidential Information includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques, and any other proprietary technology and all Proprietary Rights therein (hereinafter referred to as an “Invention” or, collectively, as “Inventions”); (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers; (c) information regarding the skills and compensation of other employees of VISIONWAVE; (d) customer identities, customer accounts, customer needs, customer advertising needs and history, customer reports, customer finances; and (e) any other non-public information which a competitor of VISIONWAVE could use to the competitive disadvantage of VISIONWAVE. Notwithstanding the foregoing, it is understood that, at all such times, Employee is free to use information which is generally known in the trade or industry through no breach of this Agreement or other act or omission by Employee or any information shown by documentary evidence to have been known by Employee prior to disclosure by VISIONWAVE, and Employee is free to discuss the terms and conditions of Employee’s employment with others to the extent permitted by law.
C. Third Party Information. Employee understands, in addition, that VISIONWAVE has received and in the future will receive from third parties confidential or Proprietary and Confidential Information (“Third Party Information”) subject to a duty on VISIONWAVE’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of Employee’s employment and thereafter, Employee will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than VISIONWAVE personnel who need to know such information in connection with their work for VISIONWAVE) or use, except in connection with Employee’s work for VISIONWAVE, Third Party Information unless expressly authorized by an officer of VISIONWAVE in writing.
D. Term of Nondisclosure Restrictions. Employee understands that Proprietary and Confidential Information and Third Party Information is never to be used or disclosed by Employee, as provided in this Section 1. If, however, a court decides that this Section 1 or any of its provisions is unenforceable, Employee agrees and VISIONWAVE agrees that the three (3) year period after the date Employee’s employment ends shall be the temporal limitation relevant to the contested restriction, provided, however, that this sentence shall not apply to trade secrets protected without temporal limitation under applicable law.
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| 2. | ASSIGNMENT OF INVENTIONS. |
A. Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, copyrights, trademarks, mask works and other intellectual property rights throughout the world.
B. Prior Inventions. Inventions, if any, patented or unpatented, which Employee made prior to the commencement of Employee’s employment with VISIONWAVE are excluded from the scope of this Agreement. To preclude any possible uncertainty, Employee has set forth on Exhibit A (Prior Inventions) attached hereto a complete list of all Inventions that Employee has, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of Employee’s employment with VISIONWAVE, that Employee considers to be her property or the property of third parties and that Employee wishes to have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause Employee to violate any prior confidentiality agreement, Employee understands that Employee is not to list such Prior Inventions in Exhibit A but is only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is provided on Exhibit A for such purpose. If no such disclosure is attached, Employee represents that there are no Prior Inventions. If, in the course of Employee’s employment with VISIONWAVE, Employee incorporates a Prior Invention into a VISIONWAVE product, process or machine, VISIONWAVE is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, fully-paid, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, reproduce, make derivative works of, publicly perform, publicly display, use, sell, import, and exercise any and all present and future rights in such Prior Invention. Notwithstanding the foregoing, Employee agrees that Employee will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions without VISIONWAVE’s prior written consent.
C. Assignment of Inventions. Subject to Subsections 2(D) and 2(F), Employee hereby assigns and agrees to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to VISIONWAVE all of Employee’s right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by Employee, either alone or jointly with others, during the period of Employee’s employment with VISIONWAVE. Inventions assigned to VISIONWAVE, or to a third party as directed by VISIONWAVE pursuant to this Section 2, are hereinafter referred to as “Company Inventions.”
D. Unassigned or Nonassignable Inventions. Employee recognizes that this Agreement will not be deemed to require assignment of any Invention that Employee developed entirely on Employee’s own time without using VISIONWAVE’s equipment, supplies, facilities, trade secrets, or Proprietary and Confidential Information, except for those Inventions that either (i) relate to VISIONWAVE’s actual or anticipated business, research or development to which Employee was exposed, or (ii) result from or are connected with work performed by Employee for VISIONWAVE. In addition, this Agreement does not apply to any Invention which qualifies fully for protection from assignment to VISIONWAVE under any specifically applicable state law, regulation, rule, or public policy (“Specific Inventions Law”).
E. Obligation to Keep Company Informed. During the period of Employee’s employment and for twelve (12) months after termination of Employee’s employment with VISIONWAVE, Employee will promptly disclose to VISIONWAVE fully and in writing all Inventions authored, conceived or reduced to practice by Employee, either alone or jointly with others. In addition, Employee will promptly disclose to VISIONWAVE all patent applications filed by Employee or on Employee’s behalf within a year after separation of employment. At the time of each such disclosure, Employee will advise VISIONWAVE in writing of any Inventions that Employee believes fully qualify for protection under the provisions of a Specific Inventions Law; and Employee will at that time provide to VISIONWAVE in writing all evidence necessary to substantiate that belief. VISIONWAVE will keep in confidence and will not use for any purpose or disclose to third parties without Employee’s consent any confidential information disclosed in writing to VISIONWAVE pursuant to this Agreement relating to Inventions that qualify fully for protection under a Specific Inventions Law. Employee will preserve the confidentiality of any Invention that does not fully qualify for protection under a Specific Inventions Law.
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F. Government or Third Party. Employee also agrees to assign all Employee’s right, title and interest in and to any particular Company Invention to a third party, as directed by VISIONWAVE.
G. Works for Hire. Employee acknowledges that all original works of authorship which are made by Employee (solely or jointly with others) within the scope of Employee’s employment and which are protectable by copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section 101).
H. Incorporation of Software Code. Employee agrees that Employee will not incorporate into any VISIONWAVE software or otherwise deliver to VISIONWAVE any software code licensed under the GNU General Public License or Lesser General Public License or any other license that, by its terms, requires or conditions the use or distribution of such code on the disclosure, licensing, or distribution of any source code owned or licensed by Company.
I. Enforcement of Proprietary Rights. Employee will assist VISIONWAVE, at VISIONWAVE’s cost and expense in every proper way to obtain, and from time to time enforce, Proprietary Rights relating to Company Inventions in any and all countries. To that end Employee will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as VISIONWAVE may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, Employee will execute, verify and deliver assignments of such Proprietary Rights to VISIONWAVE or its designee. Employee’s obligation to assist VISIONWAVE with respect to Proprietary Rights relating to such Company Inventions in any and all countries shall continue beyond the termination of her employment, but VISIONWAVE shall compensate Employee at a reasonable rate after Employee’s termination for the time actually spent by Employee at VISIONWAVE’s request on such assistance. In the event VISIONWAVE is unable for any reason, after reasonable effort, to secure Employee’s signature on any document needed in connection with the actions specified in this paragraph, Employee hereby irrevocably designates and appoints VISIONWAVE and its duly authorized officers and agents as Employee’s agent and attorney in fact, which appointment is coupled with an interest, to act for and in Employee’s behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by Employee. Employee hereby waives and quitclaims to VISIONWAVE any and all claims, of any nature whatsoever, which Employee now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to VISIONWAVE.
3. RECORDS. Employee agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by VISIONWAVE) of all Proprietary and Confidential Information developed by Employee and all Inventions made by Employee during the period of Employee’s employment at VISIONWAVE, which records shall be available to and remain the sole property of VISIONWAVE at all times.
4. NO SOLICITATION OF EMPLOYEES, CONSULTANTS, CONTRACTORS, OR CUSTOMERS OR POTENTIAL CUSTOMERS. Employee agrees that during the period of Employee’s employment and for twenty-four (24) months after the date Employee’s employment ends for any reason, including but not limited to voluntary termination by Employee or involuntary termination by VISIONWAVE, Employee will not, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, except on behalf of VISIONWAVE:
A. solicit, induce, encourage, or participate in soliciting, inducing, or encouraging any employee of VISIONWAVE to terminate his or her relationship with VISIONWAVE;
B. hire, employ, or engage in business with or attempt to hire, employ, or engage in business with any person employed by VISIONWAVE or who has left the employment of VISIONWAVE within the preceding twenty-four (24) months or discuss any potential employment or business association with such person, even if Employee did not initiate the discussion or seek out the contact;
C. solicit, induce or attempt to induce any Customer or Potential Customer, or any consultant or independent contractor with whom Employee had direct or indirect contact or whose identity Employee learned as a result of Employee’s employment with VISIONWAVE, to terminate, diminish, or materially alter in a manner harmful to VISIONWAVE its relationship with VISIONWAVE; or
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D. solicit, perform, provide or attempt to perform or provide any Conflicting Services (as defined in Section 6 below) for a Customer or Potential Customer.
The parties agree that for purposes of this Agreement, a “Customer or Potential Customer” is any person or entity who or which, at any time during the one (1) year prior to either the date on which any of the actions specified in this Section 4 occurs (if Employee is still employed by VISIONWAVE) or the one (1) year prior to the date Employee’s employment with VISIONWAVE ends if Employee is no longer employed: (i) contracted for, was billed for, or received from VISIONWAVE any product, service or process with which Employee worked directly during her employment by VISIONWAVE or about which Employee acquired Proprietary and Confidential Information; (ii) had business with VISIONWAVE that Employee managed; (iii) was in contact with Employee or in contact with any other employee, owner, or agent of VISIONWAVE, of which contact Employee was or should have been aware, concerning any product, service or process with which Employee worked directly or indirectly during her employment with VISIONWAVE or about which Employee acquired Proprietary and Confidential Information; or (iv) was solicited by VISIONWAVE in an effort in which Employee was involved or of which Employee was or should have been aware.
5. NON-COMPETE PROVISION. Employee acknowledge that during Employee’s employment, Employee will have access to and knowledge of Proprietary and Confidential Information. Employee agrees that for twenty-four (24) months after the date Employee’s employment ends for any reason, including but not limited to voluntary termination by Employee or involuntary termination by VISIONWAVE, Employee will not, directly or indirectly, as an officer, director, employee, consultant, owner, partner, or in any other capacity solicit, perform, or provide, or attempt to perform or provide Conflicting Services, nor will Employee assist another person to solicit, perform or provide or attempt to perform or provide Conflicting Services.
The parties agree that for purposes of this Agreement, “Conflicting Services” means any product, service or process, or the research and development thereof, of any person or organization other than VISIONWAVE that directly competes with a product, service or process, or the research and development thereof, of VISIONWAVE with which Employee had management, sales, marketing, production, research, or development responsibilities during Employee’s employment by VISIONWAVE or about which Employee acquired Proprietary and Confidential Information during Employee’s employment by VISIONWAVE. Where Conflicting Services is part of a larger business involving both Conflicting Services and non-Conflicting Services, the restrictions in this Section 5 shall apply only to that part of the business that involves the management, sales, marketing, production, research or development of Conflicting Services.
6. REASONABLENESS OF RESTRICTIONS.
A. Employee agrees that Employee has read this entire Agreement and understands it. Employee agrees that this Agreement does not prevent Employee from earning a living or pursuing a career. Employee agrees that the restrictions contained in this Agreement are reasonable, proper, and necessitated by VISIONWAVE’s legitimate business interests. Employee represents and agrees that Employee is entering into this Agreement freely and with knowledge of its contents with the intent to be bound by the Agreement and the restrictions contained in it.
B. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, Employee and VISIONWAVE agree that this Agreement will be automatically modified to provide VISIONWAVE with the maximum protection of its business interests allowed by law and Employee agrees to be bound by this Agreement as modified.
C. Furthermore, the parties agree that the market for VISIONWAVE’s products is worldwide. If, however, after applying the provisions of Subsection 6(b) a court still decides that this Agreement or any of its restrictions is unenforceable for lack of reasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced, the parties hereby agree that a court shall impose the greatest geographic restriction that would permit maximum enforcement of this Agreement.
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7. NO CONFLICTING AGREEMENT OR OBLIGATION. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of VISIONWAVE does not and will not breach any agreement or obligation of any kind made prior to Employee’s employment by VISIONWAVE, including agreements or obligations Employee may have with prior employers or entities for which Employee has provided services. Employee has not entered into, and Employee agrees she will not enter into, any agreement or obligation either written or oral in conflict herewith.
8. LEGAL AND EQUITABLE REMEDIES.
A. Employee agrees that it may be impossible to assess the damages caused by a violation of this Agreement or any of its terms. Employee agrees that any threatened or actual violation of this Agreement or any of its terms will constitute immediate and irreparable injury to VISIONWAVE and VISIONWAVE shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that VISIONWAVE may have for a breach or threatened breach of this Agreement.
B. Employee agrees that if VISIONWAVE is successful in whole or in part in any legal or equitable action against Employee under this Agreement, VISIONWAVE shall be entitled to payment of all costs, including reasonable attorney’s fees, from Employee.
9. NOTICES. Any notices required or permitted hereunder shall be given to VISIONWAVE at its primary office location, at Employee’s address as listed in VISIONWAVE records, or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing.
10. PUBLICATION OF THIS AGREEMENT. If Employee is offered employment or the opportunity to enter into any business venture as owner, partner, consultant or other capacity while the restrictions described in Sections 4 and 5 of this Agreement are in effect, Employee agrees to inform the potential employer, partner, co-owner and/or others involved in managing the business with which Employee has an opportunity to be associated of Employee’s obligations under this Agreement and also agrees to provide such person or persons with a copy of this Agreement.
11. GENERAL PROVISIONS.
A. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to the laws of the State of Georgio. Employee hereby expressly consents to the personal jurisdiction of the federal and state courts located in the State of Georgia in any lawsuit filed there against Employee by VISIONWAVE arising from or related to this Agreement.
B. Severability. In case any one or more of the provisions, subsections, or sentences contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
C. Successors and Assigns. This Agreement will be binding upon Employee’s heirs, executors, administrators and other legal representatives and will be for the benefit of VISIONWAVE, its successors, and its assigns.
D. Survival. The provisions of this Agreement shall survive the termination of Employee’s employment, regardless of the reason, and the assignment of this Agreement by VISIONWAVE to any successor in interest or other assignee.
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E. Waiver. No waiver by VISIONWAVE of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by VISIONWAVE of any right under this Agreement shall be construed as a waiver of any other right. VISIONWAVE shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
F. Entire Agreement. The obligations pursuant to Sections 1 and 2 (except Subsection 2(G) of this Agreement) shall apply to any time during which Employee was previously engaged, or is in the future engaged, by VISIONWAVE as a consultant if no other agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in Employee’s duties, salary or compensation will not affect the validity or scope of this Agreement.
This Proprietary and Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement shall be effective as of the date indicated below.
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I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
| VISIONWAVE HOLDINGS, INC. | ||
| By: Haggai Ravid | ||
| Its: Audit Committee Chair and Director | ||
| Date: August 6, 2025 | Date: August 6, 2025 |
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EXHIBIT A
PRIOR INVENTIONS
TO: VisionWave Holdings, Inc.
FROM:
DATE:
SUBJECT: Prior Inventions
| 1. | Except as listed in Section 2 below, the following is a complete list of all inventions or improvements relevant to the subject matter of my employment by VISIONWAVE that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by VISIONWAVE: |
None
| 2. | Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above with respect to inventions or improvements generally listed below, the proprietary rights and duty of confidentiality with respect to which I owe to the following party(ies): |
| Invention or Improvement | Party(ies) | Relationship | ||
| None |
EXHIBIT 10.7
MUTUAL AGREEMENT TO ARBITRATE
This Agreement requires you and VisionWave Holdings, Inc. (“VISIONWAVE”) to arbitrate any claims or controversies during or following your employment or work with VISIONWAVE, whether or not they are in any way related to or associated with your employment or work or the termination of your employment or work with VISIONWAVE (defined in Section 1, below). This Agreement includes Claims (defined in Section 4 below) that VISIONWAVE may have against you, or that you may have against VISIONWAVE. This Agreement affects your rights to a trial by a jury.
Section 1: Definition of VISIONWAVE
The term “VISIONWAVE” shall mean VisionWave Holdings, Inc. and any of its subsidiaries or affiliated companies and officers, directors, agents, representatives, owners, or shareholders, and all successors and assigns of any of them.
Section 2: Arbitration Overview
In arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an “Arbitrator,” rather than to a judge or jury. The Arbitrator is usually either an attorney or a retired judge. The Parties (you and VISIONWAVE) are entitled to be represented by their own legal counsel in the arbitration proceeding. After reviewing the evidence and considering the arguments of the Parties, the Arbitrator makes a written decision (an award) to resolve the dispute. The Arbitrator’s decision is final and binding, which means there will be no trial by a judge or jury, or appeal of the arbitrator’s decision, except as provided by law.
There are many publications available online and elsewhere discussing the benefits of arbitration versus pursuing claims in Court. To name a few: (i) because arbitration is a creature of contract, the Parties can design the process to best suit their needs; (ii) the Parties each have an opportunity to participate in picking the Arbitrator rather than simply being assigned a Judge; (iii) the length of an arbitration is significantly shorter than the length of a court proceeding providing the Parties with resolution of their dispute substantially more quickly; (iv) the fixed costs are less; (v) there is more flexibility in scheduling deadlines and hearing dates; (vi) arbitrations are conducted in private settings and are therefore less public than proceedings in Court; and (vii) because of the finality of the arbitration procedure, there is less chance for time-consuming and costly appeals. VISIONWAVE recommends that you explore some of these publications to learn more about the arbitration process. VISIONWAVE also welcomes any questions you may have concerning this Agreement or the arbitration process generally.
Section 3: Mutual Duty to Arbitrate
By signing this Agreement, you and VISIONWAVE agree that any arbitration shall be conducted before one neutral Arbitrator selected by the Parties. You and VISIONWAVE agree that any arbitration shall be conducted under the Employment Arbitration Rules of the American Arbitration Association (“AAA Rules”) then in effect except as specified in this Section. You may obtain a copy of the AAA Rules by accessing the AAA website at www.adr.org. You and VISIONWAVE agree that this Agreement shall be enforceable under and subject to the substantive and procedural provisions of the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. except as set forth in this Section. You and VISIONWAVE also understand and agree that VISIONWAVE is engaged in transactions involving interstate commerce.
Section 4: Claims Subject to Arbitration
The “Claims” covered by this Agreement include, but are not limited to, all past, present, future claims, including any pending litigation, for: wrongful termination; breach of any contract or covenant, express or implied; breach of any duty owed to you by VISIONWAVE or to VISIONWAVE by you; disclosure of trade secrets or proprietary information, improper use of VISIONWAVE property or equipment; personal, physical or emotional injury; fraud, misrepresentation, defamation, or any other tort claims; wages or other compensation due; penalties; benefits; reimbursement of expenses; discrimination or harassment, including but not limited to discrimination or harassment based on race, sex, pregnancy, religion, national origin, ancestry, age, marital status, physical disability, mental disability, medical condition, genetic characteristics, gender expression, gender identity, or sexual orientation; retaliation; violation of any federal,
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state or other governmental constitution, statute, ordinance or regulation (as originally enacted and as amended), including but not limited to Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans With Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”), the Employee Retirement Income Security Act (“ERISA”), the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Family and Medical Leave Act (“FMLA”), and all applicable state and local laws of a similar nature. As used herein, “Claims” does not mean any dispute if arbitration of the dispute is prohibited by law.
Employees and Contractors may learn more about their legal rights by visiting websites hosted by federal and state governmental agencies. Current links to some of these federal websites are listed below, although they are subject to change by such agencies:
www.dol.gov;
www.dol.gov/compliance/laws/comp-flsa.htm;
www.dol.gov/dol/topic/wages/index.htm; and
www.eeoc.gov
The only claims excluded from the scope of this Agreement are any claims initiated by VISIONWAVE against Employee for equitable relief for any breach or threatened breach by Employee of the Proprietary & Confidential Information, Inventions Assignment, Non-Solicitation and Non-Competition Agreement signed by Employee.
Section 5: Arbitration of Individual Claims Only
All Claims covered by this Agreement must be submitted on an individual basis. No claims may be arbitrated on a class or collective basis. Both you and VISIONWAVE expressly waive any right with respect to any covered Claims to submit, initiate, or participate in a representative capacity, or as a plaintiff, claimant or member in a class action, collective action or other representative or joint action, regardless of whether the action is filed in arbitration or in court.
BY SIGNING THIS AGREEMENT, YOU AND VISIONWAVE AGREE THAT EACH MAY BRING AND PURSUE CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITIES, AND MAY NOT BRING, PURSUE, OR ACT AS A PLAINTIFF OR CLASS MEMBER, IN ANY PURPORTED CLASS OR COLLECTIVE PROCEEDING.
YOU AND VISIONWAVE FURTHER AGREE THAT NEITHER PARTY MAY BRING, PURSUE, OR ACT AS A PLAINTIFF OR REPRESENTATIVE IN ANY PURPORTED REPRESENTATIVE PROCEEDING OR ACTION, OR OTHERWISE PARTICIPATE IN ANY SUCH REPRESENTATIVE PROCEEDING OR ACTION OTHER THAN ON AN INDIVIDUAL BASIS.
Section 6: Starting Arbitration and Location
Either party may initiate arbitration by delivering a written request to arbitrate to the other party listing the Claim(s) to be arbitrated. Requests to VISIONWAVE shall be delivered to the Chief Executive Officer, the Chief Financial Officer or General Counsel of VISIONWAVE. Requests to you shall be delivered to the last known home address you provided in writing to VISIONWAVE. The arbitration shall take place in the state and county where you worked with VISIONWAVE.
Section 7: Cost of Arbitration
You shall not be required to pay any cost or expense of the arbitration that you would not be required to pay if the matter had been heard in court except as set forth in this Section. VISIONWAVE will pay for Arbitrator compensation and any other administrative fees unique to arbitration, except, if your claim is unsuccessful, you will be required to reimburse VISIONWAVE for up to $500 in costs and expenses. VISIONWAVE will not pay for your attorneys’ fees.
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Section 8: Arbitrator’s Authority
The Arbitrator shall apply state and/or federal substantive law to determine issues of liability and damages regarding all claims to be arbitrated. The Arbitrator is authorized to award any remedy or relief that would have been available to the Parties, in their individual capacity, had the matter been heard in court. The Arbitrator shall have the authority to provide for the award of attorneys’ fees and costs to the prevailing party if such award is authorized by applicable law. No Arbitrator shall have the authority to alter the at-will status of any employee or contractor or to impose any limit on VISIONWAVE’s discretion to discipline or discharge any employee or contractor, except as otherwise provided by law. The Arbitrator’s authority to resolve disputes and make awards under this Agreement is limited to disputes between (1) you as an individual and VISIONWAVE; and (2) you as an individual and any current or former officer, director, representative, and agent if such individual is sued for conduct within the scope of his or her employment. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. This Agreement shall not be construed to deprive a party of a substantive right preserved by law.
Section 9: Written Decision
The decision of the Arbitrator shall be in writing and shall provide the reasons for the Arbitrator’s award unless the Parties otherwise agree in writing.
Section 10: Entire Agreement
This Agreement represents the entire agreement between the Parties concerning dispute resolution and arbitration. The terms of this Agreement control over any prior or subsequent oral discussions you may or have had with a VISIONWAVE representative about arbitration. The original version of this Agreement is in the English language. Any discrepancy or conflicts between the English version and any other language version will be resolved with reference to and by interpreting the English version.
Section 11: Severability
If any provision of this Agreement is determined to be illegal or unenforceable, such determination shall not affect the balance of this Agreement, which shall remain in full force and effect and such invalid provision shall be deemed severable.
Section 12: Effective Date
This Agreement shall be effective as of the date you execute it below.
Section 13: Acknowledgements
BY SIGNING THIS AGREEMENT, THE PARTIES HEREBY WAIVE THEIR RIGHT TO HAVE ANY DISPUTE, CLAIM OR CONTROVERSY DECIDED BY A JUDGE OR JURY IN A COURT.
BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED TO AND HAVE HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.
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BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT AND THAT YOU UNDERSTAND ITS TERMS.
| Dated: August 6, 2025 | By: | |
| Print Name: | ||
| Dated: August 6, 2025 | VISIONWAVE HOLDINGS, INC. | |
| By: Haggai Ravid | ||
| Its: Audit Committee Chair and Director | ||
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