EXHIBIT 10.19.1
[FORM OF PLAN OPTION AGREEMENT]
SINOFRESH HEALTHCARE, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
[NAME OF OPTIONEE]
AGREEMENT
1. GRANT OF OPTION. SinoFresh Healthcare, Inc., a Florida corporation
(the "Company") hereby grants, as of ________________, 200___ (the "Date of
Grant"), to __________________________ ("Optionee") an option (the "Option") to
purchase up to ____________________ (________) shares of the Company's Common
Stock, no par value (the "Stock"), at an exercise price per share equal to
______________ ($_____) (the "Option Price"). The Option shall be subject to the
terms and conditions set forth herein. The Option was issued pursuant to the
Company's 2002 Stock Option Plan (the "Plan"), which is incorporated herein for
all purposes. The Option is a nonqualified stock option, and not an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"). The Optionee hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all of the terms and conditions
hereof and thereof.
2. DEFINITIONS. Unless otherwise provided herein, terms used herein
that are defined in the Plan and not defined herein shall have the meanings
attributed thereto in the Plan.
3. EXERCISE SCHEDULE. Except as otherwise provided in Section 6 of this
Agreement, or in the Plan, the Option is exercisable in installments as provided
below, which shall be cumulative. To the extent that the Option has become
exercisable with respect to a percentage of shares of Stock as provided below,
the Option may thereafter be exercised by the Optionee, in whole or in part, at
any time or from time to time prior to the expiration of the Option as provided
herein. The following table indicates each date (the "Vesting Date") upon which
the Optionee shall be entitled to exercise the Option with respect to the
percentage of shares of Stock granted as indicated beside the date, provided
that the Optionee has been continuously employed by the Company or a Related
Corporation through and on the applicable Vesting Date:
Percentage of Stock Vesting Date
Except as otherwise specifically provided herein, there shall be no
proportionate or partial vesting in the periods prior to each Vesting Date, and
all vesting shall occur only on the appropriate Vesting Date. As soon as the
Optionee no longer is employed by the Company and its Related Corporations, or
is no longer serving as a Director, any unvested portion of the Option shall
terminate and be null and void.
4. METHOD OF EXERCISE. This Option shall be exercisable in whole or in
part by written notice which shall state the election to exercise the Option,
the number of shares of Stock in respect of which the Option is being exercised,
and such other representations and agreements as to the holder's investment
intent with respect to such shares of Stock as may be required by the Company
pursuant to the provisions of the Plan. Such written notice shall be signed by
the Optionee and shall be delivered in person or by certified mail to the
President of the Company. The written notice shall be accompanied by payment of
the exercise price. This Option shall be deemed to be exercised after (a)
receipt by the Company of such written notice accompanied by the exercise price,
and (b) arrangements that are satisfactory to the Plan Administrator (as defined
in the Plan) in its sole discretion have been made for Optionee's payment to the
Company of the amount that is necessary to be withheld in accordance with
applicable Federal or state withholding requirements. No shares of Stock will be
issued pursuant to the Option unless and until such issuance and such exercise
shall comply with all relevant provisions of applicable law, including the
requirements of any stock exchange upon which the Stock then may be traded.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee: (a)
cash; (b) check; (c) with shares that have been held by the Optionee for at
least 6 months (or such other shares as the Company determines will not cause
the Company to recognize for financial accounting purposes a charge for
compensation expense); (d) subject to there being an effective Form S-8
registration statement in place for the Plan, pursuant to a "cashless exercise"
procedure, by delivery of a properly executed exercise notice together with such
other documentation, and subject to such guidelines, as the Plan Administrator
shall require to effect an exercise of the Option and delivery to the Company by
a licensed broker acceptable to the Company of proceeds from the sale of Stock
or a margin loan sufficient to pay the Option Price and any applicable income or
employment taxes; or (d) such other consideration or in such other manner as may
be determined by the Plan Administrator in its absolute discretion.
6. TERMINATION OF OPTION.
(a) Any unexercised portion of the Option shall automatically and
without notice terminate and become null and void at the time of the earliest to
occur of:
(i) unless the Plan Administrator otherwise determines in
writing in its sole discretion, three (3) months after the date on which the
Optionee's employment with the Company and its Subsidiaries is terminated for
any reason other than by reason of (A) Cause, which, solely for purposes of this
Agreement (and unless otherwise defined in Optionee's employment agreement),
shall mean the termination of the Optionee's employment by reason of the
Optionee's willful misconduct or gross negligence, (B) a mental or physical
disability (within the meaning of Section 22(e) of the Internal Revenue Code of
1986, as amended) of the Optionee as determined by a medical doctor satisfactory
to the Plan Administrator, which Disability has lasted or can be expected to
last for a continuous period of not less than twelve (12) months, or (C) death;
(ii) immediately upon the termination of the Optionee's
employment with the Company and its Related Corporations for Cause;
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(iii) unless the Plan Administrator determines in writing in
its sole discretion, twelve (12) months after the date on which the Optionee's
employment with the Company and its Related Corporations is terminated by reason
of a mental or physical disability (within the meaning of Section 22(e) of the
Internal Revenue Code of 1986, as amended) as determined by a medical doctor
satisfactory to the Plan Administrator;
(iv) unless the Plan Administrator determines in writing in
its sole discretion, twelve (12) months after the date of termination of the
Optionee's employment with the Company and its Related Corporations by reason of
the death of the Optionee (or if later, three months after the date on which the
Optionee shall die if such death shall occur during the one year period
specified in paragraph (iii) of this Section 6); or
(v) the fifth (5th) anniversary of the Date of Grant.
All references herein to the termination of the Optionee's employment shall, in
the case of an Optionee who is not an employee of the Company or a Related
Corporation, refer to the termination of the Optionee's service with the
Company.
(b) To the extent not previously exercised, (i) the Option shall
terminate immediately in the event of (1) the liquidation or dissolution of the
Company, or (2) any reorganization, merger, consolidation or other form of
corporate transaction in which the Company does not survive, or the Company's
outstanding shares are converted into or exchanged for securities issued by
another entity, or an affiliate of such successor or acquiring entity, unless
the successor or acquiring entity, or a parent or subsidiary of such successor
or acquiring entity, assumes the Option or substitutes an equivalent option or
right pursuant to Section 5(m) of the Plan, and (ii) the Plan Administrator in
its sole discretion may by written notice ("cancellation notice") cancel,
effective upon the consummation of any corporate transaction described in
Section 7(b)(i) below in which the Company does survive, the Option (or portion
thereof) that remains unexercised on such date. The Plan Administrator shall
give written notice of any proposed transaction referred to in this Section 6(b)
a reasonable period of time prior to the closing date for such transaction
(which notice may be given either before or after approval of such transaction),
in order that the Optionee may have a reasonable period of time prior to the
closing date of such transaction within which to exercise the Option if and to
the extent that it then is exercisable (including any portion of the Option that
may become exercisable upon the closing date of such transaction). The Optionee
may condition his exercise of the Option upon the consummation of a transaction
referred to in this Section 6(b).
7. ACCELERATION OF EXERCISABILITY OF OPTION.
(a) This Option shall become immediately fully exercisable in the
event that, prior to the termination of the Option pursuant to Section 6 hereof,
(i) there is a Change in Control," as defined in Section 7(b) below, that occurs
while the Optionee is employed by the Company or any of its Related
Corporations, (ii) the Plan Administrator exercises its discretion to provide a
cancellation notice with respect to the Option pursuant to Sections 6(b)(ii)
hereof, or (iii) the Option is terminated pursuant to Section 6(b)(i) hereof.
(b) A "Change in Control" shall be deemed to have occurred upon:
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(i) Approval by the shareholders of the Company of a
reorganization, merger, consolidation or other form of corporate transaction or
series of transactions, in each case, with respect to which persons who were the
shareholders of the Company immediately prior to such reorganization, merger or
consolidation or other transaction do not, immediately thereafter, own more than
50% of the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then outstanding
voting securities, or a liquidation or dissolution of the Company or the sale of
all or substantially all of the assets of the Company (unless such
reorganization, merger, consolidation or other corporate transaction,
liquidation, dissolution or sale (any such event being referred to as a
"Corporate Transaction") is subsequently abandoned);
(ii) Individuals who, as of the date on which the Option is
granted, constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a
director subsequent to the date on which the Option was granted whose election,
or nomination for election by the Company's shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of the Directors of the Company, as such terms are used
in Rule 14a 11 of Regulation 14A promulgated under the Securities Exchange Act)
shall be, for purposes of this Agreement, considered as though such person were
a member of the Incumbent Board; or
(iii) the acquisition (other than from the Company) by any
person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act, of more than 50% of either the then outstanding
shares of the Company's Common Stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors (hereinafter referred to as the ownership of a
"Controlling Interest") excluding, for this purpose, any acquisitions by (1) the
Company or its Related Corporations, (2) any person, entity or "group" that as
of the date on which the Option is granted owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a
Controlling Interest or (3) any employee benefit plan of the Company or its
Related Corporations.
(c) In connection with a Change in Control, the Company shall take
or cause to be taken no action, and shall undertake or permit to arise no legal
or contractual obligation, that results or would result in any postponement of
the issuance or delivery of Stock or payment of benefits under any Option or the
imposition of any other conditions on such issuance, delivery or payment, to the
extent that such postponement or other condition would represent a greater
burden on the Optionee than existed on the 90th day preceding the Change in
Control.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the merger of the Company with and into SinoFresh Acquisition Corp.,
a Florida corporation, shall not constitute a "Change of Control" hereunder.
8. TRANSFERABILITY. Unless otherwise determined by the Plan
Administrator, the Option granted hereby is not transferable otherwise than by
will or under the applicable laws of descent and distribution, and during the
lifetime of the Optionee the Option shall be exercisable
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only by the Optionee or the Optionee's guardian or legal representative. In
addition, the Option shall not be assigned, negotiated, pledged or hypothecated
in any way (whether by operation of law or otherwise), and the Option shall not
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, negotiate, pledge or hypothecate the Option, or in the event
of any levy upon the Option by reason of any execution, attachment or similar
process contrary to the provisions hereof, the Option shall immediately become
null and void. The terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
9. NO RIGHTS OF STOCKHOLDERS. Neither the Optionee nor any personal
representative (or beneficiary) shall be, or shall have any of the rights and
privileges of, a stockholder of the Company with respect to any shares of Stock
purchasable or issuable upon the exercise of the Option, in whole or in part,
prior to the date of exercise of the Option.
10. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Option nor this
Agreement shall confer upon the Optionee any right to continued employment or
service with the Company.
11. LAW GOVERNING. This Agreement shall be governed in accordance with
and governed by the internal laws of the State of Florida.
12. INTERPRETATION / PROVISIONS OF PLAN CONTROL. This Agreement is
subject to all the terms, conditions and provisions of the Plan, including,
without limitation, the amendment provisions thereof, and to such rules,
regulations and interpretations relating to the Plan adopted by the Plan
Administrator as may be in effect from time to time. If and to the extent that
this Agreement conflicts or is inconsistent with the terms, conditions and
provisions of the Plan, the Plan shall control, and this Agreement shall be
deemed to be modified accordingly. The Optionee accepts the Option subject to
all the terms and provisions of the Plan and this Agreement. The undersigned
Optionee hereby accepts as binding, conclusive and final all decisions or
interpretations of the Plan Administrator upon any questions arising under the
Plan and this Agreement.
13. NOTICES. Any notice under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and addressed,
in the case of the Company, to the Company's President at 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxx 00000, or if the Company should move its principal office, to
such principal office, and, in the case of the Optionee, to the Optionee's last
permanent address as shown on the Company's records, subject to the right of
either party to designate some other address at any time hereafter in a notice
satisfying the requirements of this Section.
14. TAX CONSEQUENCES. Set forth below is a brief summary as of the date
of this Option of some of the federal tax consequences of exercise of this
Option and disposition of the Stock. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND
THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A
TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES OF STOCK.
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(a) EXERCISE OF OPTION. There may be a regular federal income tax
liability upon the exercise of the Option. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the fair market value of the Stock on the date of
exercise over the Option Price. If Optionee is an employee, the Company will be
required to withhold from Optionee's compensation or collect from Optionee and
pay to the applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(b) DISPOSITION OF STOCK. If the Stock is held for at least one
year, any gain realized on disposition of the Stock will be treated as long-term
capital gain for federal income tax purposes.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
COMPANY:
SinoFresh HealthCare, Inc., a Florida
corporation
By:______________________________________
Name: Xxxxxxx Xxxx
Title: Chairman and CEO
Optionee acknowledges receipt of a copy of the Plan and represents that he
or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option, and fully
understands all provisions of the Option.
OPTIONEE:
_________________________________
Name: [NAME OF OPTIONEE]
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