EXHIBIT 10.3



 





DIGIPATH,
INC.


 


Amended
and Restated


2012
Stock Incentive Plan


 


Option
Agreement


 


Pursuant
to your Stock Option Grant Notice (“Grant Notice”) and this Option Agreement, DigiPath, Inc. (the “Company”)
has granted you an option under its Amended and Restated 2012 Stock Incentive Plan (the “Plan”) to purchase
the number of shares of the Company’s Common Stock indicated in your Grant Notice at the exercise price indicated in your
Grant Notice. Defined terms not explicitly defined in this Option Agreement but defined in the Plan shall have the same definitions
as in the Plan.


 


The
details of your option are as follows:


 


1.Vesting.
Subject to the limitations contained herein, your option will vest as provided in your Grant Notice, provided that
vesting will cease upon the termination of your Continuous Service.


 


2.Number
of Shares and Exercise Price. The number of shares of Common Stock subject to your option and your exercise price per
share referenced in your Grant Notice may be adjusted from time to time for Capitalization Adjustments.


 


3.Exercise
Restriction for Non-Exempt Employees. In the event that you are an Employee eligible for overtime compensation under
the Fair Labor Standards Act of 1938, as amended (i.e., a “Non-Exempt Employee”), you may not
exercise your option until you have completed at least six (6) months of Continuous Service measured from the Date of Grant specified
in your Grant Notice, notwithstanding any other provision of your option.


 


4.Method
of Payment. Payment of the exercise price is due in full upon exercise of all or any part of your option. You may elect
to make payment of the exercise price in cash or by check or in any other manner permitted by your Grant Notice,
which may include one or more of the following:


 


(a)Provided
that at the time of exercise the Common Stock is publicly traded and quoted regularly in The Wall Street Journal, pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of Common Stock,
results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds.


 


(b)Provided
that at the time of exercise the Common Stock is publicly traded and quoted regularly in The Wall Street Journal, by delivery
to the Company (either by actual delivery or attestation) of already-owned shares of Common Stock that are owned free and clear
of any liens, claims, encumbrances or security interests, and that are valued at Fair Market Value on the date of exercise. Notwithstanding
the foregoing, you may not exercise your option by tender to the Company of Common Stock to the extent such tender would violate
the provisions of any law, regulation or agreement restricting the redemption of the Company’s stock.


 




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(c)by
a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Common Stock issued
upon exercise of your option by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate
exercise price; provided, however, that the Company shall accept a cash or other payment from you to the extent of any remaining
balance of the aggregate exercise price not satisfied by such reduction in the number of whole shares to be issued; provided further,
however, that shares of Common Stock will no longer be outstanding under your option and will not be exercisable thereafter to
the extent that (1) shares are used to pay the exercise price pursuant to the “net exercise,” (2) shares are delivered
to you as a result of such exercise, and (3) shares are withheld to satisfy tax withholding obligations.


 


5.Whole
Shares. You may exercise your option only for whole shares of Common Stock.


 


6.Securities
Law Compliance. Notwithstanding anything to the contrary contained herein, you may not exercise your option unless
the shares of Common Stock issuable upon such exercise are then registered under the Securities Act or, if such shares of Common
Stock are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration
requirements of the Securities Act. The exercise of your option also must comply with other applicable laws and regulations governing
your option, and you may not exercise your option if the Company determines that such exercise would not be in material compliance
with such laws and regulations.


 


7.Term.
You may not exercise your option before the commencement or after the expiration of its term. The term of your option
commences on the Date of Grant and expires upon the earliest of the following:


 


(a)immediately
upon the termination of your Continuous Service for Cause;


 


(b)three
(3) months after the termination of your Continuous Service for any reason other than your Disability or death, provided that
if during any part of such three (3) month period your option is not exercisable solely because of the condition set forth in
the section above relating to “Securities Law Compliance,” your option shall not expire until the earlier of the Expiration
Date or until it shall have been exercisable for an aggregate period of three (3) months after the termination of your Continuous
Service;


 


(c)twelve
(12) months after the termination of your Continuous Service due to your Disability;


 


(d)eighteen
(18) months after your death if you die either during your Continuous Service or within three (3) months after your Continuous
Service terminates;


 


(e)the
Expiration Date indicated in your Grant Notice; or


 




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(f)the
day before the tenth (10th) anniversary of the Date of Grant.


 


If
your option is an Incentive Stock Option, note that to obtain the federal income tax advantages associated with an Incentive Stock
Option, the Code requires that at all times beginning on the date of grant of your option and ending on the day three (3) months
before the date of your option’s exercise, you must be an employee of the Company or an Affiliate, except in the event of
your death or Disability. The Company has provided for extended exercisability of your option under certain circumstances for
your benefit but cannot guarantee that your option will necessarily be treated as an Incentive Stock Option if you continue to
provide services to the Company or an Affiliate as a Consultant or Director after your employment terminates or if you otherwise
exercise your option more than three (3) months after the date your employment with the Company or an Affiliate terminates.


 


8.Exercise.


 


(a)You
may exercise the vested portion of your option (and the unvested portion of your option if your Grant Notice so permits) during
its term by delivering a Notice of Exercise (in a form designated by the Company) together with the exercise price to the Secretary
of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional
documents as the Company may then require.


 


(b)By
exercising your option you agree that, as a condition to any exercise of your option, the Company may require you to enter into
an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason
of (1) the exercise of your option, (2) the lapse of any substantial risk of forfeiture to which the shares of Common Stock are
subject at the time of exercise, or (3) the disposition of shares of Common Stock acquired upon such exercise.


 


(c)If
your option is an Incentive Stock Option, by exercising your option you agree that you will notify the Company in writing within
fifteen (15) days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of your option
that occurs within two (2) years after the date of your option grant or within one (1) year after such shares of Common Stock
are transferred upon exercise of your option.


 


9.Transferability.


 


(a)If
your option is an Incentive Stock Option, your option is generally not transferable, except (1) by will or by the laws of descent
and distribution or (2) pursuant to a domestic relations order (provided that such Incentive Stock Option may be deemed to be
a Nonstatutory Stock Option as a result of such transfer), and is exercisable during your life only by you. Notwithstanding the
foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party
who, in the event of your death, shall thereafter be entitled to exercise your option. In addition, you may transfer your option
to a trust if you are considered to be the sole beneficial owner (determined under Section 671 of the Code and applicable state
law) while the option is held in the trust, provided that you and the trustee enter into transfer and other agreements required
by the Company.


 




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(b)If
your option is a Nonstatutory Stock Option, your option is not transferable, except (1) by will or by the laws of descent and
distribution, (2) pursuant to a domestic relations order, (3) with the prior written approval of the Company, by instrument to
an inter vivos or testamentary trust, in a form accepted by the Company, in which the option is to be passed to beneficiaries
upon the death of the trustor (settlor) and (4) with the prior written approval of the Company, by gift, in a form accepted by
the Company, to a permitted transferee under Rule 701 of the Securities Act.


 


10.Option
not a Service Contract. Your option is not an employment or service contract, and nothing in your option shall be deemed
to create in any way whatsoever any obligation on your part to continue in the employ of the Company or an Affiliate, or of the
Company or an Affiliate to continue your employment. In addition, nothing in your option shall obligate the Company or an Affiliate,
their respective stockholders, Boards of Directors, Officers or Employees to continue any relationship that you might have as
a Director or Consultant for the Company or an Affiliate.


 


11.Change
in Control.


 


(a)If
a Change in Control occurs and your Continuous Service with the Company has not terminated as of, or immediately prior to, the
effective time of the Change in Control, then, as of the effective time of such Change in Control, the vesting and exercisability
of your option shall be accelerated in full.


 


(b)If
any payment or benefit you would receive pursuant to a Change in Control from the Company or otherwise (“Payment”)
would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence,
be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment
shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment
that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including
the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes,
income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax
basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise
Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals
the Reduced Amount, reduction shall occur in the following order unless you elect in writing a different order (provided, however,
that such election shall be subject to Company approval if made on or after the effective date of the event that triggers
the Payment): reduction of cash payments; cancellation of accelerated vesting of Stock Awards; reduction of employee benefits.
In the event that acceleration of vesting of Stock Award compensation is to be reduced, such acceleration of vesting shall be
cancelled in the reverse order of the date of grant of your Stock Awards (i.e., earliest granted Stock Award cancelled
last) unless you elect in writing a different order for cancellation. The accounting firm engaged by the Company for general audit
purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting
firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in
Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The
Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The
accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting
documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a Payment is triggered
(if requested at that time by you or the Company) or such other time as requested by you or the Company. If the accounting firm
determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount,
it shall furnish you and the Company with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect
to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon
you and the Company.


 




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12.Withholding
Obligations.


 


(a)At
the time you exercise your option, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize
withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for (including by
means of a “cashless exercise” pursuant to a program developed under Regulation T as promulgated by the Federal Reserve
Board to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax withholding
obligations of the Company or an Affiliate, if any, which arise in connection with the exercise of your option.


 


(b)Upon
your request and subject to approval by the Company, in its sole discretion, and compliance with any applicable legal conditions
or restrictions, the Company may withhold from fully vested shares of Common Stock otherwise issuable to you upon the exercise
of your option a number of whole shares of Common Stock having a Fair Market Value, determined by the Company as of the date of
exercise, not in excess of the minimum amount of tax required to be withheld by law (or such lower amount as may be necessary
to avoid classification of your option as a liability for financial accounting purposes). If the date of determination of any
tax withholding obligation is deferred to a date later than the date of exercise of your option, share withholding pursuant to
the preceding sentence shall not be permitted unless you make a proper and timely election under Section 83(b) of the Code, covering
the aggregate number of shares of Common Stock acquired upon such exercise with respect to which such determination is otherwise
deferred, to accelerate the determination of such tax withholding obligation to the date of exercise of your option. Notwithstanding
the filing of such election, shares of Common Stock shall be withheld solely from fully vested shares of Common Stock determined
as of the date of exercise of your option that are otherwise issuable to you upon such exercise. Any adverse consequences to you
arising in connection with such share withholding procedure shall be your sole responsibility.


 


(c)You
may not exercise your option unless the tax withholding obligations of the Company and/or any Affiliate are satisfied. Accordingly,
you may not be able to exercise your option when desired even though your option is vested, and the Company shall have no obligation
to issue a certificate for such shares of Common Stock or release such shares of Common Stock from any escrow provided for herein
unless such obligations are satisfied.


 




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13.Tax
Consequences. You hereby agree that the Company does not have a duty to design or administer the Plan or its other
compensation programs in a manner that minimizes your tax liabilities. You shall not make any claim against the Company, or any
of its Officers, Directors, Employees or Affiliates related to tax liabilities arising from your option or your other compensation.
In particular, you acknowledge that this option is exempt from Section 409A of the Code only if the exercise price per share specified
in the Grant Notice is at least equal to the “fair market value” per share of the Common Stock on the Date of Grant
and there is no other impermissible deferral of compensation associated with the option.


 


14.Notices.
Any notices provided for in your option or the Plan shall be given in writing and shall be deemed effectively given
upon receipt or, in the case of notices delivered by mail by the Company to you, five (5) days after deposit in the United States
mail, postage prepaid, addressed to you at the last address you provided to the Company.


 


15.Governing
Plan Document. Your option is subject to all the provisions of the Plan, the provisions of which are hereby made a
part of your option, and is further subject to all interpretations, amendments, rules and regulations, which may from time to
time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of your option and those
of the Plan, the provisions of the Plan shall control.


 



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