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 a valued employee of 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
pursuant to the provisions of the Company’s 2005 Equity Incentive Plan (the
“Plan”).
NOW,
THEREFORE, in consideration of the premises contained herein and in the Plan,
it
is agreed as follows:
(1) Grant
of Option.
Subject
to the terms and conditions contained herein and in the Plan, 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, the fair market value of each such share on the date of grant. The
future value of such shares is unknown and cannot be predicted with certainty.
If such shares do not increase in value, the Option will have no
value.
(2) Term
and Vesting of Option.
The term
of the Option shall be for the period set forth on the Notice, but in no event
for more than ten (10) years (“Term”) from the date of this Agreement and,
subject to the terms and provisions hereof and the Plan, 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 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, (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,
or (iii) by any other means authorized by the Plan. 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.
(4) Termination
of Option.
The
Option shall terminate on the earliest to occur of the following:
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(a) The
expiration date set forth on the Notice or ten (10) years from the date of
this
Agreement.
(b) Three
(3)
months after the termination of the Optionee’s director relationship 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
administrator of the Plan in its sole discretion), five (5) years after the
date
of such termination.
(5) Plan;
Restrictions.
In all
respects this Agreement and the Option granted herein shall be subject to the
terms and provisions of the Plan which has been, or is being, provided, or
otherwise made available, to the Optionee and is incorporated herein by
reference. Accordingly, the rights of the Optionee under this Agreement and
the
shares of common stock of the Company which the Optionee may purchase hereunder
are subject to certain restrictions as set forth in the Plan.
(6) 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.
(7) 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 Committee, 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
Committee 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).
(8) Termination
of the Plan; No Right to Future Grants; Extraordinary Item of
Compensation.
By
entering into the Notice and Stock Option Agreement, the Optionee acknowledges:
(i) that the Plan is discretionary in nature and may be suspended or terminated
by the Company at any time; (ii) 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; (iii) 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; (iv) that the Optionee’s participation
in the Plan is voluntary; (v) 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 (vi) 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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(9) 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 administering the Plan or providing Plan recordkeeping services,
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 and the administration of the Plan; (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.
(10) 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 Yorkand 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.
(11) 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.
(13) 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.
(14) 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.
(15) Construction.
This
Agreement is subject to and shall be construed in accordance with the Plan,
the
terms of which are explicitly made applicable hereto. Unless otherwise defined
herein, capitalized terms in this Agreement shall have the same definitions
as
set forth in the Plan. In the event of any conflict between the provisions
hereof and those of the Plan, the provisions of the Plan shall
govern.
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| bioMETRX, Inc. | Date |
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| Optionee | Date |
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NOTICE
OF GRANT OF STOCK OPTIONS
| Name | No. of Options | Exercise Price | Expiration Date | Vesting |
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