-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PQCtuUZ3bYfmQAHbGTAroohQhr7LIThuQXmqn8hMMHzojUH7o8WYDOPFOS4bbGcu nnAFCsLdiQex7E7swMBvfw== 0000909012-07-001371.txt : 20071107 0000909012-07-001371.hdr.sgml : 20071107 20071107132441 ACCESSION NUMBER: 0000909012-07-001371 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20071101 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20071107 DATE AS OF CHANGE: 20071107 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYSVIEW TECHNOLOGY, INC. CENTRAL INDEX KEY: 0001096857 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 900251401 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27773 FILM NUMBER: 071220656 BUSINESS ADDRESS: STREET 1: 1772 TECHNOLOGY DRIVE CITY: SAN JOSE STATE: CA ZIP: 95110 BUSINESS PHONE: 408-436-9888 MAIL ADDRESS: STREET 1: 1772 TECHNOLOGY DRIVE CITY: SAN JOSE STATE: CA ZIP: 95110 FORMER COMPANY: FORMER CONFORMED NAME: SYSCAN IMAGING INC DATE OF NAME CHANGE: 20040406 FORMER COMPANY: FORMER CONFORMED NAME: BANKENGINE TECHNOLOGIES INC DATE OF NAME CHANGE: 20010321 FORMER COMPANY: FORMER CONFORMED NAME: ZEE INC DATE OF NAME CHANGE: 19991014 8-K 1 t303796.txt ================================================================================ - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): NOVEMBER 7, 2007 (NOVEMBER 1, 2007) SYSVIEW TECHNOLOGY, INC. (Exact name of Registrant as specified in charter) Delaware 000-25839 59-3134518 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification Number) 1772 Technology Drive San Jose, California 95110 (Address of principal executive offices) Registrant's telephone number, including area code: (408) 436-9888 Ext. 207 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions (see General Instruction A.2 below). |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)). |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13(e)-4(c)) ================================================================================ - -------------------------------------------------------------------------------- FORWARD LOOKING STATEMENTS This Form 8-K and other reports filed by Registrant from time to time with the Securities and Exchange Commission (collectively the "Filings") contain or may contain forward looking statements and information that are based upon beliefs of, and information currently available to, Registrant's management as well as estimates and assumptions made by Registrant's management. When used in the filings the words "anticipate", "believe", "estimate", "expect", "future", "intend", "plan" or the negative of these terms and similar expressions as they relate to Registrant or Registrant's management identify forward looking statements. Such statements reflect the current view of Registrant with respect to future events and are subject to risks, uncertainties, assumptions and other risk factors relating to Registrant's industry, Registrant's operations and results of operations and any businesses that may be acquired by Registrant. Should one or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected, intended or planned. Although Registrant believes that the expectations reflected in the forward looking statements are reasonable, Registrant cannot guarantee future results, levels of activity, performance or achievements. Except as required by applicable law, including the securities laws of the United States, Registrant does not intend to update any of the forward-looking statements to conform these statements to actual results. In this Form 8-K, references to "we," "our," "us," "Company," "Sysview Technology" or "Registrant" refer to Sysview Technology, Inc., a Delaware corporation. ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS (b) Effective November 1, 2007, Mr. William Hawkins resigned as the Interim Chief Financial Officer of Sysview Technology. (c) Effective November 1, 2007, Sysview Technology's board of directors (the "Board") appointed Ms. (Martha) Carolyn Ellis as Sysview Technology's Chief Financial Officer. Ms. Ellis has been an independent contractor to Sysview Technology since April 2006 in charge of and supervising its financial reporting obligations. Prior to her work with Sysview Technology, Ms. Ellis served as a director, secretary and treasurer of Knovative, Inc., a telecommunications research and development company that she co-founded in 2003 and where she remains a member of the board of directors today. From April 2000 until she co-founded Knovative, Ms. Ellis served as the Vice President of Finance for Correlant Communications, a company in the telecommunications industry. Ms. Ellis has been a certified public accountant since 1989. She earned her bachelor's degree in economics and accounting from Hendrix College in 1986 and her master's degree in business administration from the University of New Mexico in 1994. THE EMPLOYMENT AGREEMENT Sysview Technology entered into an Employment Agreement with Ms. Ellis on November 1, 2007. Under the terms of the Employment Agreement, Ms. Ellis is appointed Chief Financial Officer of Sysview Technology for an initial term ("Term") of twelve (12) months, which is automatically extended for additional one (1) year periods unless either party notifies the other party at least 90 days prior to the expiration of the then existing Term of its intention not to extend the Term. Additionally, Ms. Ellis is to receive an annual salary of $135,000 and, at the discretion of the compensation committee of Sysview Technology's Board, may be eligible for an annual bonus which amount, if any, and payment will be determined by the compensation committee. Ms. Ellis is also granted options to purchase shares of Sysview Technology's common stock. In connection therewith, Ms. Ellis entered into a Stock Option Agreement with the Company, described below. Further, the Employment Agreement provides Ms. Ellis with employee health insurance and the right to participate in any other employee benefit plans established by Sysview Technology and our professional employer organization. Sysview Technology may terminate for cause the Employment Agreement upon written notice if at any time Ms. Ellis: (a) engages in misconduct that may have a material adverse effect on the business and affairs of Sysview Technology; (b) disregards the legal instructions of the Board consistent with her position relating to the business of Sysview Technology or neglects or fails to discharge her duties so as to materially and adversely affect the business and affairs of Sysview Technology; (c) engages in any activity in competition with Sysview Technology; (d) is convicted of felony or (e) habitually abuses alcohol or controlled substances. Such termination for cause, however, is predicated on Ms. Ellis first receiving a notice from the Board advising her of the specific acts or omissions constituting a cause for termination, and her subsequent failure to correct such acts or omissions after a reasonable opportunity (at least 10 days from her receipt of the Board's notice) to do so. The Employment Agreement terminates automatically upon Ms. Ellis' death. If our termination breaches the terms of the Employment Agreement, Ms. Ellis is entitled to receive three (3) months salary at the salary rate set in the Employment Agreement ("Severance Payment"), and Sysview Technology will pay 100% of the C.O.B.R.A. premiums for three (3) months after her termination ("C.O.B.R.A. Payments"). Ms. Ellis will also be entitled to receive any previously declared bonus. On the other hand, Ms. Ellis may terminate the Employment Agreement upon a 30-day written notice if: (i) Ms. Ellis is no longer the Chief Financial Officer or its equivalent; (ii) Sysview Technology materially reduces Ms. Ellis' duties and responsibilities; (iii) Sysview Technology requires Ms. Ellis to relocate outside of the 60-mile radius of San Jose, California; (iv) Ms. Ellis' compensation or other benefits are reduced by ten percent or more; (v) a successor to Sysview Technology does not assume the Employment Agreement; (vi) Sysview Technology materially breaches the Employment Agreement and fails to cure within 30 days of written notice from Ms. Ellis of such breach or (vii) Sysview Technology undergoes a change of control event. Ms. Ellis must submit her termination notice within 90 days after the occurrence of any of the events described in (i) through (vi), and within three years after the occurrence of the even described in (vii). Upon such termination, Ms. Ellis is entitled to receive the lesser of her remaining salary due under the Employment Agreement or three (3) months salary at her then current annual salary rate ("Enhanced Severance Payment") and the C.O.B.R.A. Payments. However, if the occurrence of any of the events described in (i) through (vi) is the result of a Board action necessitated by financial hardship of Sysview Technology, then Ms. Ellis will waive her right to claim the Enhanced Severance Payment. She may terminate the Employment Agreement within 30 days of such Board action, and receive the Severance Payment and the C.O.B.R.A. Payments. Ms. Ellis may also terminate the Employment Agreement without cause upon a 30-day written notice, provided that she will not be entitled to receive the Severance Payment or any additional compensation for such termination. The Employment Agreement also contains restrictive covenants preventing competition with Sysview Technology during her employment and for a period of one (1) year after termination (including contact with or solicitation of the customers, employees or suppliers of Sysview Technology), and also covenants preventing the use or disclosure of confidential business information during or at any time after termination of her employment. However, if the Employment Agreement is terminated by Ms. Ellis under any of the circumstances described in (i) through (vi) above, then the covenant against competition is reduced to the number of months remaining under the Employment Agreement at the time of termination plus six (6) months thereafter. THE OPTIONS AND THE STOCK OPTION AGREEMENT Under the Employment Agreement, Ms. Ellis is granted 150,000 options to purchase shares of Sysview Technology's common stock ("Option Shares") at an exercise price of $0.60 per share for a period of seven (7) years, and pursuant thereto, she entered into the Stock Option Agreement with the Company. The options may be exercised on a cashless basis. The options will vest and become exercisable on the 12-month anniversary date of their issuance date. However, at any time Sysview Technology undergoes a change of control event, the options will become vested and immediately exercisable at any time within 12 months after the effective date of the change of control event. Additionally, Sysview Technology must use its best efforts to register the Option Shares no later than 120 days after the change of control event, unless doing so is counter to the advice of counsel or would not be in the best interest of the Company, in which case Sysview Technology will have an additional 60 days to comply with its obligation to register the Option Shares. The Stock Option Agreement provides certain anti-dilution adjustments. Thus, in the event Sysview Technology declares or pays a dividend on its common stock in common stock or other securities, or subdivides the outstanding common stock, then upon the exercise of the options, for each share of common stock acquired, Ms. Ellis will receive the number and kind of securities that she would have been entitled to received had she owned such share of common stock on the date the dividend or subdivision occurred. Upon any event that results in a change of the number and/or class of securities issuable upon the exercise of the options, Ms. Ellis will receive, upon exercise of the options, the number and kind of securities and property that she would have been entitled to received had she exercised immediately prior to such event. If the number of outstanding shares of Sysview Technology's common stock is reduced, the exercise price of the options will be proportionally increased. Lastly, any plan of consolidation, merger, sale or conveyance of all or substantially all assets by Sysview Technology (excepting a plan of complete liquidation) must provide that Ms. Ellis will have the right to acquire and receive, upon exercise of the options, such stock shares, securities or assets equivalent to the number of shares of Sysview Technology common stock that she would have received had the consolidation, merger sale or conveyance not occurred. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS (d) EXHIBITS. 99.1 Employment Agreement between Sysview Technology, Inc. and Carolyn Ellis dated November 1, 2007 99.2 Option Agreement between Sysview Technology, Inc. and Carolyn Ellis dated November 1, 2007 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. SYSVIEW TECHNOLOGY, INC. Date: November 7, 2007 By: /s/ Darwin Hu ------------------------------------ Darwin Hu, Chief Executive Officer EX-99.1 2 exh99-1.txt EXHIBIT 99.1 EMPLOYMENT AGREEMENT EMPLOYMENT AGREEMENT ("Agreement") made as of this 1st day of November, 2007 by and between Sysview Technology, Inc., a Delaware corporation, having an office at 1772 Technology Drive, (hereinafter referred to as "Employer") and Carolyn Ellis, an individual residing at [____________________________________] (hereinafter referred to as "Employee"); W I T N E S S E T H: WHEREAS, Employer employs directly or through a co-employment agreement with a Professional Employer Organization (PEO) licensed in the State of California, and desires to employ, Employee as Chief Financial Officer of Employer; and WHEREAS, Employee is willing to be employed as the Chief Financial Officer of Employer in the manner provided for herein, and to perform the duties of the Chief Financial Officer of Employer upon the terms and conditions herein set forth; NOW, THEREFORE, in consideration of the promises and mutual covenants herein set forth it is agreed as follows: 1. EMPLOYMENT OF CHIEF FINANCIAL OFFICER OF EMPLOYER. Employer hereby employs Employee as Chief Financial Officer of Employer. 2. TERM. a. Subject to Section 9 and Section 10 below, the term of this Agreement shall be for a period of twelve (12) months commencing on November 1, 2007 (the Term). The Term of this Agreement shall be automatically extended for additional one (1) year periods, unless either party notifies the other in writing at least ninety (90) days prior to the expiration of the then existing Term of its intention not to extend the Term. During the Term, Employee shall devote substantially all of her business time and efforts to Employer and its subsidiaries and affiliates. 3. DUTIES. The Employee shall perform those functions generally performed by persons of such title and position, shall attend all meetings of the stockholders and the Board (if invited to attend), shall perform any and all related duties and shall have any and all powers as may be prescribed by resolution of the Board, and shall be available to confer and consult with and advise the officers and directors of Employer at such times that may be required by Employer. Employee shall report directly and solely to the Board. 4. COMPENSATION. a. (i) Employee shall be paid a base pay of $135,000 per year during the Term of this Agreement. Employee shall be paid periodically in accordance with the policies of the Employer during the term of this Agreement, but not less than monthly. (ii) Employee is eligible for an annual bonus, if any, which will be determined and paid in accordance with policies set from time to time by the compensation committee of the Board. -1- b. Employer shall grant Employee 150,000 options ("Options") to purchase shares of the Company's common stock at an exercise price of $0.60 per share for a period of seven (7) years, upon execution of this Agreement. The Options shall vest and become exercisable on the date that is 12 months from the issuance date of the Options. c. Employer shall include Employee in its health insurance program, payment of premiums in accordance with company policy. d. Employee shall have the right to participate in any other employee benefit plans established by Employer and PEO. e. (i) In the event of a "Change of Control" whereby: (A) A person (other than a person who is an officer or a Director of Employer on the effective date hereof), including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, after execution of this Agreement becomes, or obtains the right to become, the beneficial owner of Employer securities having 30% or more of the combined voting power of then outstanding securities of the Employer that may be cast for the election of directors of the Employer; (B) At any time, a majority of the Board-nominated slate of candidates for the Board is not elected; (C) Employer consummates a merger in which it is not the surviving entity; (D) Substantially all Employer's assets are sold; or (E) Employer's stockholders approve the dissolution or liquidation of Employer; then (ii) All stock options and warrants ("Rights") granted by Employer to Employee under any plan or otherwise prior to the effective date of the Change of Control, shall become vested, accelerate and become immediately exercisable; any time within twelve months after the effective date of the change of control, adjusted for any stock splits and capital reorganizations having a similar effect, subsequent to the effective date hereof. In the event Employee owns or is entitled to receive any unregistered securities of Employer, then Employer shall use its best efforts to effect the registration of all such securities as soon as practicable, but no later than 120 days after the Change of Control; provided, however, that such period may be extended or delayed by Employer for one period of up to 60 days if, upon the advice of counsel at the time such registration is required to be filed, or at the time Employer is required to exercise its best efforts to cause such registration statement to become effective, such delay is advisable and in the best interests of Employer because of the existence of non-public material information, or to allow Employer to complete any pending audit of its financial statements. 5. EXPENSES. Employee shall be reimbursed for all of her actual out-of-pocket expenses incurred in the performance of her duties hereunder, provided such expenses are acceptable to Employer, which approval shall not be unreasonably withheld, for business related travel and entertainment expenses, and that Employee shall submit to Employer detailed receipts, according to IRS guidelines, with respect thereto. 6. RESERVED. -2- 7. SECRECY. At no time shall Employee disclose to anyone any confidential or secret information (not already constituting information available to the public) concerning (a) internal affairs or proprietary business operations of Employer or (b) any trade secrets, new product developments, patents, programs or programming, especially unique processes or methods. 8. COVENANT NOT TO COMPETE. (a) Subject to, and limited by, Section 10(b), Employee will not, at any time, during the term of this Agreement, and for one (1) year thereafter, either directly or indirectly, engage in, with or for any enterprise, institution, whether or not for profit, business, or company, competitive with the business (as identified herein) of Employer as such business may be conducted on the date thereof, as a creditor, guarantor, or financial backer, stockholder, director, officer, consultant, advisor, employee, member, inventor, producer, director, or otherwise of or through any corporation, partnership, association, sole proprietorship or other entity; provided, that an investment by Employee, her spouse or her children is permitted if such investment is not more than four percent (4%) of the total debt or equity capital of any such competitive enterprise or business and further provided that said competitive enterprise or business is a publicly held entity whose stock is listed and traded on a national stock exchange or through the NASDAQ Stock Market. As used in this Agreement, the business of Employer shall be deemed to include the manufacturing and marketing of imaging systems. (b) For a period one year from the date of termination of this agreement Employee shall not contact or solicit any of the Companies customers, employees or suppliers. (c) During the entire time of employment, any outside consulting (paid or unpaid), employment, business venture or compensated activities must receive the written approval of the employee compensation committee, established by the board of directors, or any other committee of the board of directors serving such function. 9. TERMINATION. a. TERMINATION BY EMPLOYER (i) Employer may terminate this Agreement upon written notice for Cause. For purposes hereof, "Cause" shall mean (A) Employee's misconduct as could reasonably be expected to have a material adverse effect on the business and affairs of Employer, (B) the Employee's disregard of lawful instructions of Employers Board of Directors consistent with Employee's position relating to the business of Employer or neglect of duties or failure to act, which, in each case, could reasonably be expected to have a material adverse effect on the business and affairs of Employer,(C) engaging by the Employee in conduct that constitutes activity in competition with Employer, including any unapproved activities identified in section 8(c) of this agreement; (D) the conviction of Employee for the commission of a felony; and/or (E) the habitual abuse of alcohol or controlled substances. Notwithstanding anything to the contrary in this Section 9(a)(i), Employer may not terminate Employee's employment under this Agreement for Cause unless Employee shall have first received notice from the Board advising Employee of the specific acts or omissions alleged to constitute Cause, and such acts or omissions continue after Employee shall have had a reasonable opportunity (at least 10 days from the date Employee receives the notice from the Board) to correct the acts or omissions so complained of. In no event shall alleged incompetence of Employee in the performance of Employee's duties be deemed grounds for termination for Cause. (ii) This agreement automatically shall terminate upon the death of Employee, except that Employee's estate shall be entitled to receive any amount accrued under Section 4(a). -3- b. TERMINATION BY EMPLOYEE (i) Employee shall have the right to terminate her employment under this Agreement upon 30 days' notice to Employer given within 90 days following the occurrence of any of the following events (A) through (F) or within three years following the occurrence of event (G): (A) Employee is not appointed or retained as Chief Financial Officer (or a substantially similar position). (B) Employer acts to materially reduce Employee's duties and responsibilities hereunder. Employee's duties and responsibilities shall not be deemed materially reduced for purposes hereof solely by virtue of the fact that Employer is (or substantially all of its assets are) sold to, or is combined with, another entity, provided that Employee shall continue to have the same duties and responsibilities with respect to Employer's business, and Employee shall report directly to the board of directors of the entity (or individual) that acquires Employer or its assets. (C) Employer acts to change the geographic location of the performance of Employee's duties from the San Jose area. For purposes of this Agreement, the San Jose area shall be deemed to be the area within 60 miles of San Jose, California. (D) A Material Reduction (as hereinafter defined) in Employee's rate of base compensation, or Employee's other benefits. "Material Reduction" shall mean a ten percent (10%) differential; (E) A failure by Employer to obtain the assumption of this Agreement by any successor; (F) A material breach of this Agreement by Employer, which is not cured within thirty (30) days of written notice of such breach by Employer; (G) A Change of Control. (ii) Anything herein to the contrary notwithstanding, Employee may terminate this Agreement upon thirty (30) days written notice to Employer. (iii) If Employee shall terminate this Agreement under Section 9(b)(i), Employee shall be entitled to receive the lesser of: (a) the remaining salary due to Employee under this Agreement, or (b) three (3) months salary, at her then current yearly salary rate, (the SEVERANCE PAYMENT), and Employer shall pay 100% of the C.O.B.R.A. premiums for three (3) months after such termination. Other than the Severance Payment and the payment of C.O.B.R.A. premiums described in this section 9(b)(iii), Employer shall have no further obligation to compensate Employee pursuant to Section 4 above. If Employee shall terminate this Agreement pursuant to Section 9(b)(ii), Employee shall not be entitled to the Severance Payment or any additional compensation as provided in Section 4. c. TERMINATION BY BOARD OF DIRECTORS ACTIONS DUE TO ECONOMIC HARDSHIP OF THE EMPLOYER. (i) In the event the Employer, under direction from its board of directors due to financial distress, is required to take actions that may effect any or all of the Section 9(b)(i) events (A) through (F), the employee will waive any right to claim Severance Payments under the provisions of Section(s) 4 or 9(b). -4- (ii) Within thirty (30) days of such board action, Employee may voluntarily terminate this Agreement with written notice to Employer. (iii) If Employee shall terminate this Agreement under Section 9(c)(ii), Employee shall be entitled to receive: (a) three (3) months salary, at the annual salary rate set forth in section 4(a), (the SEVERANCE PAYMENT), and Employer shall pay 100% of the C.O.B.R.A. premiums for three (3) months after such termination. Other than the Severance Payment and the payment of C.O.B.R.A. premiums described in this section 9(c)(iii), Employer shall have no further obligation to compensate Employee pursuant to Section(s) 4 or 9(b)above. If Employee shall terminate this Agreement pursuant to Section 9(c)(iii), Employee shall not be entitled to the Severance Payment or any additional compensation as provided in Section 4 or 9(b)above. 10. CONSEQUENCES OF BREACH BY EMPLOYER; EMPLOYMENT TERMINATION a. If the Employer shall terminate Employee's employment under this Agreement in any way that is a breach of this Agreement by Employer, the following shall apply: (i) Employee shall be entitled to receive the Severance Payment, and Employer shall pay 100% of the C.O.B.R.A. premiums for twelve (12) months after such termination. Other than the Severance Payment and the payment of C.O.B.R.A. premiums described, Employer shall have no further obligation to compensate Employee pursuant to Section(s) 4 or 9 above; and (ii) Employee shall be entitled to payment of any previously declared bonus as provided in Section 4(a) above. b. In the event of termination of Employee's employment pursuant to Section 9(b)(i) of this Agreement, Sections 8(a) and 8(b) shall apply to Employee for the number of months remaining under this Agreement at the time of termination plus a period of six (6) months thereafter. 11. REMEDIES Employer recognizes that because of Employee's special talents, stature and opportunities in the imaging industry, and because of the special creative nature of and compensation practices of said industry and the material impact that individual projects can have on the Company's results of operations, in the event of termination by Employer hereunder (except under Section 9(a)(i) or (iii), or in the event of termination by Employee under Section 9(b)(i) before the end of the agreed term, the Employer acknowledges and agrees that the provisions of this Agreement regarding further payments of base salary, bonuses and the exercisability of Rights constitute fair and reasonable provisions for the consequences of such termination, do not constitute a penalty, and such payments and benefits shall not be limited or reduced by amounts' Employee might earn or be able to earn from any other employment or ventures during the remainder of the agreed term of this Agreement. 12. EXCISE TAX. In the event that any payment or benefit received or to be received by Employee in connection with a termination of her employment with Employer would constitute a "parachute payment" within the meaning of Code Section 280G or any similar or successor provision to 280G and/or would be subject to any excise tax imposed by Code Section 4999 or any similar or successor provision then Employer shall assume all liability for the payment of any such tax and Employer shall immediately reimburse Employee on a "grossed-up" basis for any income taxes attributable to Employee by reason of such Employer payment and reimbursements. -5- 13. ATTORNEYS' FEES AND COSTS. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 14. ENTIRE AGREEMENT; SURVIVAL. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein and supersedes, effective as of the date hereof any prior agreement or understanding between Employer and Employee with respect to Employee's employment by Employer. The unenforceability of any provision of this Agreement shall not effect the enforceability of any other provision. This Agreement may not be amended except by an agreement in writing signed by the Employee and the Employer, or any waiver, change, discharge or modification as sought. Waiver of or failure to exercise any rights provided by this Agreement and in any respect shall not be deemed a waiver of any further or future rights. b. The provisions of Sections 4, 7, 8, 9(a)(ii), 9(b)(iii), 10, 11, 12, 14, 16, 17 and 18 shall survive the termination of this Agreement. 15. ASSIGNMENT. This Agreement shall not be assigned to other parties. 16. GOVERNING LAW. This Agreement and all the amendments hereof, and waivers and consents with respect thereto shall be governed by the laws of the State of California, without regard to the conflicts of laws principles thereof. 17. NOTICES. All notices, responses, demands or other communications under this Agreement shall be in writing and shall be deemed to have been given when a. delivered by hand; b. sent be telex or telefax, (with receipt confirmed), provided that a copy is mailed by registered or certified mail, return receipt requested; or c. received by the addressee as sent be express delivery service (receipt requested) in each case to the appropriate addresses, telex numbers and telefax numbers as the party may designate to itself by notice to the other parties: (i) if to the Employer: Sysview Technology, Inc. 1772 Technology Drive San Jose, CA 95110 Telefax:(408)-490-2801 Telephone:(408)-436-9888 (ii) if to the Employee: [-----------------] 18. SEVERABILITY OF AGREEMENT. Should any part of this Agreement for any reason be declared invalid by a court of competent jurisdiction, such decision shall not affect the validity of any remaining portion, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portions of this Agreement without including any such part, parts or portions which may, for any reason, be hereafter declared invalid. [SIGNATURE PAGE FOLLOWS] -6- IN WITNESS WHEREOF, the undersigned have executed this agreement as of the day and year first above written. EMPLOYEE Signature: /s/ Carolyn Ellis - ---------------------------- Printed Name: Carolyn Ellis Date: November 1, 2007 SYSVIEW TECHNOLOGY, INC. By: /s/ Darwin Hu - ----------------- Name: Darwin Hu Title: Chief Executive Officer Date: November 1, 2007 -7- EX-99.2 3 exh99-2.txt EXHIBIT 99.2 NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. NEITHER THE SECURITIES REPRESENTED HEREBY MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED NOR MAY THE SHARES BE ISSUED UPON EXERCISE UNLESS SUCH SECURITIES AND SHARES ARE REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH SALE, TRANSFER, PLEDGE OR ISSUANCE IS EXEMPT FROM REGISTRATION. SYSVIEW TECHNOLOGY, INC. STOCK OPTION AGREEMENT THIS STOCK OPTION AGREEMENT (the "Agreement"), is made as of this 1st day of November 2007 by and between Sysview Technology, Inc., a Delaware corporation (the "Company"), and Carolyn Ellis ("Optionee"). R E C I T A L On November 1, 2007, in connection with the execution of an employment agreement between the Company and Optionee dated even date herewith ("Employment Agreement"), the Company's Board of Directors authorized the grant to Optionee of an option to purchase the number of shares of common stock (the "Common Shares") of the Company specified in Paragraph 1 hereof, at the price specified therein, such option to be for the term and upon the terms and conditions hereinafter stated. The Board of Directors, or such other committee or individual that the Board of Directors appoints, shall be the "Administrator" for purposes of this Agreement. A G R E E M E N T NOW, THEREFORE, in consideration of the promises and of the undertakings of the parties hereto contained herein, it is hereby agreed: 1. Number of Shares; Option Price. Pursuant to said action of the Board of Directors, the Company hereby grants to Optionee the option ("Option") to purchase, upon and subject to the terms and conditions hereof, 150,000 Common Shares of the Company at the price of $0.60 per share ("Exercise Price"). 2. Term. This Option shall expire on the day before the seventh anniversary of the date hereof (the "Expiration Date") unless such Option shall have been terminated prior to that date in accordance with the provisions of this Agreement. The term "Affiliate" as used herein shall have the meaning as set forth in the Federal Securities laws of the United States. 3. Shares Subject to Exercise. The Options shall vest and the Common Shares shall be subject to exercise commencing on the date that is one year from the date hereof. All Common Shares shall thereafter remain subject to exercise for the term specified in Paragraph 2 hereof. In the event of a "Change in Control", as defined in the Employment Agreement, all of the Options shall immediately vest and become exercisable. -1- 4. Method and Time of Exercise. The Option may be exercised by written notice delivered to the Company at its principal executive office stating the number of Common Shares with respect to which the Option is being exercised, together with: (A) a check or money order made payable to the Company in the amount of the exercise price and any withholding tax, as provided under Paragraph 5 hereof; or (B) if expressly authorized in writing by the Administrator, in its sole discretion, at the time of the Option exercise, the tender to the Company of Common Shares owned by Optionee having a fair market value, as determined by the Administrator, not less than the exercise price, plus the amount of applicable federal, state and local withholding taxes; or (C) the Optionee may, at its option, elect to exercise this Option, in whole or in part and at any time or from time to time, on a cashless basis, by surrendering this Option, with the purchase form attached to this Option as Exhibit A duly executed by or on behalf of the Optionee, at the principal office of the Company, or at such other office or agency as the Company may designate, by canceling a portion of this Option in payment of the Exercise Price payable in respect of the number of Common Shares purchased upon such exercise. In the event of an exercise pursuant to this subsection 4(c), the number of Common Shares issued to the Holder shall be determined according to the following formula: X = Y(A-B) ------ A Where: X = the number of Common Shares that shall be issued to the Holder; Y = the number of Common Shares for which this Option is being exercised (which shall include both the number of Common Shares issued to the Holder and the number of Common Shares subject to the portion of the Option being cancelled in payment of the Exercise Price); A = the Fair Market Value (as defined below) of one Common Share; and B = the Exercise Price then in effect. (ii) The Fair Market Value per Common Share shall be determined as follows: (a) If the Common Shares are listed on a national securities exchange, the Nasdaq, the OTC Bulletin Board or another nationally recognized trading system as of the Exercise Date, which shall be deemed to have been effected immediately prior to the close of business on the business day on which this option shall have been surrendered to the Company as provided in Section 4(c) hereof ("Exercise Date"), the Fair Market Value per Common Share shall be deemed to be the average of the high and low reported sale prices per Common Share thereon on the trading day immediately preceding the Exercise Date, as defined below, (PROVIDED that if the Common Shares are not so listed on such day, the Fair Market Value per Common Share shall be determined pursuant to clause (b) below). -2- (b) If the Common Shares are not listed on a national securities exchange, the Nasdaq, the OTC Bulletin Board or another nationally recognized trading system as of the Exercise Date, as defined below, the Fair Market Value per Common Share shall be deemed to be the amount most recently determined by the Board of Directors of the Company or an authorized committee of the Board of Directors of the Company (the "Board") to represent the fair market value per share of the Common Shares (including without limitation a determination for purposes of granting common stock options or issuing common stock under any plan, agreement or arrangement with employees of the Company); and, upon request of the Optionee, the Board (or a representative thereof) shall, as promptly as reasonably practicable but in any event not later than 15 days after such request, notify the Optionee of the Fair Market Value per Common Share. Notwithstanding the foregoing, if the Board has not made such a determination within the three-month period prior to the Exercise Date, as defined below, then (A) the Board shall make, and shall provide or cause to be provided to the Optionee notice of, a determination of the Fair Market Value per Common Share within 15 days of a request by the Optionee that it do so, and (B) the exercise of this Option pursuant to this subsection 4(c) shall be delayed until such determination is made and notice thereof is provided to the Optionee. Not less than 100 shares may be purchased at any one time unless the number purchased is the total number purchasable under such Option at the time. Only whole shares may be purchased. 5. Tax Withholding. As a condition to exercise of this Option, the Company may require Optionee to pay over to the Company all applicable federal, state and local taxes which the Company is required to withhold with respect to the exercise of this Option. At the discretion of the Administrator and upon the request of Optionee, the minimum statutory withholding tax requirements may be satisfied by the withholding of Common Shares otherwise issuable to Optionee upon the exercise of this Option. 6. Termination of Option. In the event that Optionee terminates its employment pursuant to Section 9(b)(ii) of the Employment Agreement, all Options not then vested shall immediately terminate. 7. Nontransferability. Except with the express written approval of the Administrator, this Option may not be assigned or transferred except by will, qualified domestic relations order or by the laws of descent and distribution, and may be exercised only by Optionee during his lifetime and after his death, by his personal representative or by the person entitled thereto under his will or the laws of intestate succession. 8. Optionee Not a Shareholder. Optionee shall have no rights as a shareholder with respect to the Common Shares of the Company covered by this Option until the date of issuance of a stock certificate or stock certificates to him upon exercise of this Option. 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. 9. No Right to Employment. Nothing in the Option granted hereby shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate Optionee's employment or consulting at any time, nor confer upon Optionee any right to continue in the employ of, or consult with, the Company or any of its Affiliates. 10. Anti-dilution Adjustment. -3- 10.1 Stock Dividends, Stock Splits, Etc. If the Company declares or pays a dividend on its Common Stock payable in Common Stock or other securities, or subdivides the outstanding Common Stock into a greater amount of Common Stock, then upon exercise of this Option, for each Common Share acquired, Optionee shall receive, without cost to Optionee, the total number and kind of securities to which Optionee would have been entitled had Optionee owned the Common Shares of record as of the date the dividend or subdivision occurred. 10.2 Reclassifications, Exchange or Substitution. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise of this Option, Optionee shall be entitled to receive, upon exercise of this Option, the number and kind of securities and property that Optionee would have received for the Common Shares if this Option had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Optionee a new Option for such new securities or other property. The new Option shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 10.2, including, without limitation, adjustments to the Exercise Price and to the number of securities or property issuable upon exercise of the new Option. The provisions of this Section 10.2 shall similarly apply to successive reclassifications, exchanges, substitutions, or other events. 10.3 Adjustments for Combinations, Etc. If the outstanding shares of Common Stock are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased. 10.4 Merger or Consolidation. In case of any consolidation of the Company with, or merger of the Company into any other corporation, or in the case of any sale or conveyance of all or substantially all of the assets of the Company other than in connection with a plan of complete liquidation of the Company, then as a condition of such consolidation, merger or sale or conveyance, adequate provision will be made whereby the registered holder of the Option will have the right to acquire and receive upon exercise of this Option in lieu of the shares of Common Stock immediately theretofore subject to acquisition upon the exercise of this Option, such shares of stock, securities or assets as may be issued or payable with respect to or in exchange for the number of shares of Common Stock immediately theretofore subject to acquisition and receivable upon exercise of this Option had such consolidation, merger or sale or conveyance not taken place. In any such case, the Company will make appropriate provision to insure that the provisions of this Section 10 hereof will thereafter be applicable as nearly as may be in relation to any shares of stock or securities thereafter deliverable upon the exercise of this Option. 11. Restrictions on Sale of Common Shares. Optionee represents and agrees that upon his exercise of this Option, in whole or in part, unless there is in effect at that time under the Securities Act a registration statement relating to the Common Shares issued to him, he will acquire the Common Shares issuable upon exercise of this Option for the purpose of investment and not with a view to their resale or further distribution, and that upon such exercise thereof he will furnish to the Company a written statement to such effect, satisfactory to the Company in form and substance. Optionee agrees that any certificates issued upon exercise of this Option may bear a legend indicating that their transferability is restricted in accordance with applicable state and federal securities law. Any person or persons entitled to exercise this Option under the provisions of Paragraphs 5 and 6 hereof shall, upon each exercise of this Option under circumstances in which Optionee would be required to furnish such a written statement, also furnish to the Company a written statement to the same effect, satisfactory to the Company in form and substance. 12. Notices. All notices to the Company shall be addressed to the Chief Financial Officer at the principal executive office of the Company, and all notices to Optionee shall be addressed to Optionee at the address of Optionee on file with the Company or its subsidiary, or to such other address as either may designate to the other in writing. A notice shall be deemed to be duly given if and when enclosed in a properly addressed sealed envelope deposited, postage prepaid, with the United States Postal Service. In lieu of giving notice by mail as aforesaid, written notices under this Agreement may be given by personal delivery to Optionee or to the Chief Financial Officer (as the case may be). -4- 13. Sale or Other Disposition. If Optionee at any time contemplates the disposition (whether by sale, gift, exchange, or other form or transfer) of any Shares acquired by exercise of this Option, he or she shall first notify the Company in writing of such proposed disposition and cooperate with the Company in complying with all applicable requirements of law, which, in the judgment of the Company, must be satisfied prior to such disposition. [SIGNATURE ON FOLLOWING PAGE] -5- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. SYSVIEW TECHNOLOGY, INC. By : /S/ DARWIN HU ----------------- Name: Darwin Hu Title: Chairman and CEO OPTIONEE By : /S/ CAROLYN ELLIS ------------------- Name: Carolyn Ellis Address: EXHIBIT A PURCHASE FORM To: Sysview Technology, Inc. Dated:____________ The undersigned, pursuant to the provisions set forth in the attached option, hereby elects to purchase (CHECK APPLICABLE BOX): _________ shares of the Common Stock of Sysview Technology, Inc. covered by such Option; or the maximum number of shares of Common Stock covered by such Option pursuant to the cashless exercise procedure set forth in subsection 4(c). The undersigned herewith makes payment of the full Exercise Price for such shares at the price per share provided for in such Option. Such payment takes the form of (CHECK APPLICABLE BOX OR BOXES): $______ in lawful money of the United States; and/or the cancellation of such portion of the attached Option as is exercisable for a total of _____ Common Shares (using a Fair Market Value of $_____ per share for purposes of this calculation) ; and/or the cancellation of such number of Option Shares as is necessary, in accordance with the formula set forth in subsection 4(c), to exercise this Option with respect to the maximum number of Option Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 4(c). ---------------------------------------- Print or Type Name ---------------------------------------- (Signature must conform in all respects to name of holder as specified on the face of the Option) ---------------------------------------- (Street Address) ---------------------------------------- (City) (State) (Zip Code) -6- -----END PRIVACY-ENHANCED MESSAGE-----