BIOMETRX, INC. NONQUALIFIED STOCK OPTION AGREEMENT
BIOMETRX,
INC.
This
Stock Option Agreement is made by and between bioMETRX, Inc., a corporation
formed under the laws of the State of Delaware (the “Company”), and the
individual (“Optionee”) specified on the attached Notice of Grant of Stock
Options and Option Agreement (the “Notice”).
WITNESSETH:
WHEREAS,
the Optionee is the Chief Operating Officer of the Company whose services are
valuable to the Company; and
WHEREAS,
the Company considers it desirable and in its best interest that the Optionee
be
provided an inducement to acquire an ownership interest in the Company and
an
additional incentive to advance the interest of the Company through the grant
of
an option to purchase shares of the $.001 par value common stock of the
Company.
NOW,
THEREFORE, in consideration of the premises contained herein, it is agreed
as
follows:
(1) Grant
of Option.
Subject
to the terms and conditions contained herein, the Company hereby grants the
Optionee the right, privilege and option (the “Option”) to purchase the number
of shares specified in the attached Notice of the $.001 par value common stock
of the Company at a price per share specified in the attached
Notice.
(2) Term
and Vesting of Option.
The term
of the Option shall be five (5) years (“Term”) from the date of this Agreement
and, subject to the terms and provisions hereof. The Option shall vest and
Optionee may exercise the Option in accordance with the vesting schedule
specified in the attached Notice and within the Term. Subject to the foregoing,
the Option may be exercised in whole or in part with respect to all or any
portion of the shares to which it relates.
(3) Method
of Exercise.
The
Option may be exercised in the following manner(s):
(a) The
Option shall be exercised by the transmittal of written notice thereof to the
Company at its principal place of business. Such notice shall specify the number
of shares which the Optionee elects to purchase, shall be signed by the Optionee
and shall be accompanied by payment of the purchase price for the shares which
the Optionee elects to purchase. Such payment may be made in whole or in part
(i) in cash or (ii) by authorizing a Company-approved third party to sell the
shares (or a sufficient portion of the shares) acquired upon exercise of the
Option and remit to the Company a sufficient portion of the sale proceeds to
pay
the entire purchase price and any tax withholding resulting from such exercise.
The Company may instruct the broker to deposit the entire sale proceeds into
a
Company owned account for further distribution to the Optionee, net of the
entire purchase price and any tax withholding resulting from such
exercise.
(b) Notwithstanding
anything to the contrary contained in Section 3(a), 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 Optionee’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 Optionee shall surrender this Option for that number
of shares of common stock determined by multiplying the number of Option 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 of common stock. For example, if the Optionee 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 is
$2.00 per share, that upon such Cashless Exercise the holder will receive 62,500
shares of common stock.
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(4) Termination
of Option.
The
Option shall terminate on the earliest to occur of the following:
(a) The
expiration date set forth on the Notice or five (5) years from the date of
this
Agreement.
(b) Three
(3)
months after the termination of the Optionee’s employment with the Company,
unless such termination is the result of disability, death or
retirement.
(c) In
the
case of termination as a result of disability or death, one (1) year after
the
date of such termination.
(d) In
the
case of termination as a result of retirement (as determined by the Company’s
Board of Directors in its sole discretion), three (3) years after the date
of
such termination.
(5) Rights
Prior to Exercise of Option.
The
Optionee shall have no rights as a stockholder with respect to the shares of
stock subject to the Option until the exercise of his rights hereunder and
the
issuance and delivery to Optionee of a certificate or certificates evidencing
such shares.
(6) Transferability.
Except
as otherwise provided in this Section, the Option is not transferable other
than
by will or the laws of descent and distribution, and the Option may be
exercised, during the lifetime of the Optionee, only by the Optionee. However,
the Optionee, with the approval of the Company’s Board of Directors, may
transfer the Option for no consideration to or for the benefit of the Optionee’s
Immediate Family (including, without limitation, to a trust for the benefit
of
the Optionee’s Immediate Family or to a partnership or limited liability company
for one or more members of the Optionee’s Immediate Family), subject to such
limits as the Board of Directors may establish, and the transferee shall remain
subject to all the terms and conditions applicable to the Option prior to such
transfer. The forgoing right to transfer the Option shall apply to the right
to
consent to amendments to this Agreement. The term “Immediate Family” shall mean
the Optionee’s spouse, parents, children, stepchildren, adoptive relationships,
sisters, bothers and grandchildren (and, for this purpose, shall also include
the Optionee).
(7) No
Right to Future Grants; Extraordinary Item of Compensation.
By
entering into the Notice and Stock Option Agreement, the Optionee acknowledges:
(i) that the grant of the Option is a one-time benefit which does not create
any
contractual or other right to receive future grants of options, or benefits
in
lieu of options; (ii) that all determinations with respect to any such future
grants, including, but not limited to, the times when options shall be granted,
the number of shares subject to each option, the option price, and the time
or
times when each option shall be exercisable, will be at the sole discretion
of
the Company; (iii) that the Optionee’s acceptance of this option is voluntary;
(iv) that the value of the option is an extraordinary item of compensation
which
is outside the scope of the Optionee’s employment contract, if any; and (v) that
the Option is not part of normal or expected compensation for purposes of
calculating any severance, resignation, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments.
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(8) Data
Privacy.
By
entering into the Notice and Stock Option Agreement, the Optionee: (i)
authorizes the Company and Subsidiary, and any agent of the Company and
Subsidiary, to disclose to the Company or any of its subsidiaries such
information and data as the Company or any such subsidiary shall request in
order to facilitate the grant of options; (ii) waives any data privacy rights
he
or she may have with respect to such information; and (iii) authorizes the
Company and Subsidiary to store and transmit such information in electronic
form.
(9) Applicable
Laws and Consent to Jurisdiction.
The
validity, construction, interpretation and enforceability of this Agreement
shall be determined and governed by the laws of the State of State without
giving effect to the principles of conflicts of laws. For the purpose of
litigating any dispute that arises under this Agreement, the parties hereby
consent to exclusive jurisdiction in the State of New York and agree that such
litigation shall be conducted in the courts of Nassau County, New York or the
federal courts of the United States for Nassau County, New York.
(10) Severability.
The
provisions of this Agreement are severable and if any one or more provisions
may
be determined to be illegal or otherwise unenforceable, in whole or in part,
the
remaining provisions, and any partially unenforceable provision to the extent
enforceable in any jurisdiction, shall nevertheless be binding and
enforceable.
(11) Waiver.
The
waiver by the Company of a breach of any provision of this Agreement by Optionee
shall not operate or be construed as a waiver of any subsequent breach by
Optionee.
(12) Binding
Effect.
The
provisions of this Agreement shall be binding upon the parties hereto, their
successors and assigns, including, without limitation, the estate of the
Optionee and the executors, administrators or trustees of such estate and any
receiver, trustee in bankruptcy or representative of the creditors of the
Optionee.
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NOTICE
OF GRANT OF STOCK OPTIONS
| Name | No. of Options | Exercise Price | Expiration Date | Vesting |
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