NONQUALIFIED STOCK OPTION AGREEMENT
THIS
NONQUALIFIED STOCK OPTION AGREEMENT
(this
“Agreement”) dated as of ________________ (“Grant Date”), is between
SPECTRUMDNA,
INC.,
a
Delaware corporation (the “Company”), and ___________________, (the “Holder”).
Certain capitalized terms used in this Agreement are defined in paragraph
9.
1. Grant
of Stock Option, Option Price and Term.
(a) The
Company grants to the Holder a Non-Qualified Stock Option to
purchase ______________ shares of Stock of the Company (the “Option Shares”) at
an exercise price of $____
per
share (the “Option
Price”) subject to the terms and conditions herein.
(b) The
term
of this Stock Option shall be a period ending on the earliest of (i) the
tenth
anniversary of the Grant Date, (ii) the date 90 days after the termination
of
the Holder’s provision of services to the Company, or (iii) the date one year
after the termination of the Holder’s provision of services to the Company due
to the death of the Holder (the “Option Period”). During the Option Period, this
Stock Option shall vest and be exercisable with respect to the following
number
of Option Shares as follows: (i) ___________
of the
Option Shares shall be vested and exercisable one year from the Grant Date,
and
(ii) ____________ of the Option Shares shall vest on the first day of each
month
thereafter, so that this Stock Option will have become fully vested and
exercisable on ___________.
(c) The
Stock
Option granted hereunder is designated as a nonqualified stock option and
is not
transferable by the Holder except by will or the laws of descent and
distribution.
(d) The
Company shall not be required to issue any fractional shares of
Stock.
2. Exercise.
The
Stock
Option shall be exercisable during the Holder’s lifetime only by the Holder (or
his or her Representative), and after the Holder’s death only by a
Representative, in each case during the Option Period. The Stock Option may
only
be exercised by the delivery to the Company of a properly completed written
notice (the “Exercise Notice”), which notice shall specify the number of Option
Shares to be purchased and the aggregate Option Price for such shares, together
with payment in full of such aggregate Option Price.
Payment
of the Option Price shall be by any of the following, or a combination thereof,
at the election of the Holder (or Representative):
(i) Cash;
(ii) Check;
(iii) By
delivering to the Company an Exercise Notice together with irrevocable
instructions to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the Option Price, provided that
in
the event the Holder (or Representative) chooses to pay the Option Price
as so
provided, the Holder (or Representative) and the broker shall comply with
such
procedures and enter into such agreements of indemnity and other agreements
as
the Company shall prescribe as a condition of such payment
procedure;
(iv) If
at the
time of exercise, the Option Shares are not subject to an effective registration
statement, by delivering to the Company an Exercise Notice together instructions
authorizing the Company to retain from the total number of Option Shares
as to
which the Stock Option is exercised that number of Option Shares having a
Fair
Market Value on the date of exercise equal to the Option Price for the total
number of Option Shares as to which the Stock Option is exercised;
(v) By
combination of any of the foregoing methods of payment.
No
shares
of Stock shall be issued upon exercise of a Stock Option until full payment
therefor has been made. Upon exercise of a Stock Option (or a portion thereof),
the Company shall have a reasonable time to issue the Stock for which the
Stock
Option has been exercised. A Holder shall have all rights of a stockholder
of
the Company holding the Stock (including, if applicable, the right to vote
the
shares and the right to receive dividends), when the Holder has given written
notice of exercise, has tendered payment in full for such shares and has
complied with
all
requirements specified herein.
3. Payment
of Withholding Taxes.
If
the
Company is obligated to withhold an amount on account of any tax imposed
as a
result of the exercise of the Stock Option, the Holder shall be required
to pay
such amount to the Company, as shall be determined by the Company. The Holder
acknowledges and agrees that he or she is responsible for the tax consequences
associated with the grant of the Stock Option and its exercise.
4. Changes
in Company’s Capital Structure.
The
existence of a Stock Option will not affect in any way the right or authority
of
the Company or its stockholders to make or authorize (a) any or all adjustments,
reclassifications, reorganizations or other changes in the Company’s capital
structure or its business; (b) any merger or consolidation of the Company’s
capital or business structure; (c) any merger or consolidation of the Company;
(d) any issue of bonds, debentures, preferred or prior preference stock ahead
of
or affecting the Stock or the rights thereof; (e) the dissolution or liquidation
of the Company; (f) any sale or transfer of all or any part of its business
or
assets; or (g) any other corporate act or proceeding, whether of a similar
character or otherwise.
In
the
event of any Company stock dividend, stock split, combination or exchange
of
shares, recapitalization or other change in the capital structure of the
Company, corporate separation or division of the Company (including, but
not
limited to, a split-up, spin-off, split-off or distribution to Company
stockholders other than a normal cash dividend), sale by the Company of all
or a
substantial portion of its assets (measured on either a stand-alone or
consolidated basis), reorganization, rights offering, partial or complete
liquidation, or any other corporate transaction, Company share offering or
other
event involving the Company and having an effect similar to any of the
foregoing, the Company may make such substitution or adjustments in the (A)
number and kind of shares that may be delivered under this Stock Option,
(B)
exercise price of this Stock Option and (C) other characteristics or terms
of
this Stock Option as it may determine appropriate in its sole discretion
to
equitably reflect such corporate transaction, share offering or other event;
provided, however, that the number of shares subject to this Stock Option
shall
always be a whole number.
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5.
Employment
or Service Rights.
No
provision of this Agreement or of the Stock Option granted hereunder shall
give
the Holder any right to continue in the employ or other service of the Company
or any Company Affiliates, create any inference as to the length of employment
or service of the Holder, affect the right of the Company or Company Affiliates
to terminate the employment or service of the Holder, with or without cause,
or
give the Holder any right to participate in any employee welfare or benefit
plan
or other program of the Company or any of the Company Affiliates.
6. Waiver;
Cumulative Rights.
The
failure or delay of either party to require performance by the other party
of
any provision hereof shall not affect its right to require performance of
such
provision unless and until such performance has been waived in writing. Each
and
every right hereunder is cumulative and may be exercised in part or in whole
from time to time.
7. Notices.
Any
notice which either party hereto may be required or permitted to give the
other
shall be in writing and may be delivered personally or by mail, postage prepaid,
addressed to the Secretary of the Company, at its then corporate headquarters,
and the Holder at his address as shown on the Company’s records, or to such
other address as the Holder, by notice to the Company, may designate in writing
from time to time.
8. Miscellaneous.
The
Company may require each person purchasing or receiving shares pursuant to
this
Stock Option to represent to and agree with the Company in writing that such
person is acquiring the shares without a view to the distribution thereof.
The
certificates for such shares may include any legend which the Company deems
appropriate to reflect any restrictions on transfer. All certificates for
shares
of Stock or other securities delivered hereunder shall be subject to such
stock
transfer orders and other restrictions as the Company may deem advisable
under
the rules, regulations and other requirements of the Securities Exchange
Commission, any stock exchange or market on which the Stock is then listed
and
any applicable Federal or state securities law, and the Company may cause
a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
Any
amounts owed to the Company or an Affiliate by the Holder of whatever nature
may
be offset by the Company from the value of any shares of Stock, cash or other
thing of value under this Agreement to be transferred to the Holder, and
no
shares of Stock, cash or other thing of value under this Agreement shall
be
transferred unless and until all disputes between the Company and the Holder
have been fully and finally resolved and the Holder has waived all claims
to
such against the Company or an Affiliate.
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This
Agreement shall inure to the benefit of and be binding upon each successor
and
assign of the Company. All obligations imposed upon a Holder, and all rights
granted to the Company hereunder, shall be binding upon the Holder’s heirs,
legal representatives and successors.
This
Agreement constitutes the entire agreement with respect to the subject matter
hereof.
None
of
the Company or any Affiliate shall have any duty or obligation to disclose
affirmatively to a record or beneficial holder of Stock or this Stock Option,
and such holder shall have no right to be advised of, any material information
regarding the Company or any Affiliate at any time prior to, upon or in
connection with receipt or the exercise of this Stock Option.
9. Definitions.
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(a)
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“Affiliate”
means a corporation or other entity controlled by the Company and
designated by the Company as such.
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(b)
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“Fair
Market Value”
means, as of any given date, if
the Common Stock is publicly traded, the closing sales price for
the last
market trading day prior to such date, or, if not available, the
mean
between the bona fide bid and asked prices of the Common Stock
on the last
market trading day prior to such date. In any situation not covered
above,
the Fair Market Value shall be determined by
the Company acting in good faith on such basis as it deems appropriate.
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(c)
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“Representative”
means (i) the person or entity acting as the executor or administrator
of
a Holder’s estate pursuant to the last will and testament of a Holder or
pursuant to the laws of the jurisdiction in which the Holder had
his or
her primary residence at the date of the Holder’s death; (ii) the
person or entity acting as the guardian or temporary guardian of
a Holder;
(iii) the person or entity which is the beneficiary of the Holder
upon or following the Holder’s death; or (iv) any person to whom a Stock
Option has been transferred with the permission of the Company
or by
operation of law; provided that only one of the foregoing shall
be the
Representative at any point in time as determined under applicable
law and
recognized by the Company.
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(d)
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“Stock”
means Common Stock, par value $.001 per share, of the
Company.
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IN
WITNESS WHEREOF,
the
Company has caused this Nonqualified Stock Option Agreement to be duly executed
by an officer thereunto duly authorized, and the Holder has hereunto set
his or
her hand, all as of the day and year first above written.
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The
Company:
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By:
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Name:
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Title:
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The
Holder:
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The
Holder’s Address:
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