SINOFRESH HEALTHCARE, INC. NON-QUALIFIED STOCK OPTION AGREEMENT FOR
Exhibit
4.30
SINOFRESH
HEALTHCARE, INC.
FOR
W.
XXXXXXXX XXXXXX
Agreement
1. Grant
of Option.
SinoFresh Healthcare, Inc., a Florida corporation (the “Company”) hereby issues
this option agreement to evidence an option (the “Option”) committed to W.
Xxxxxxxx Xxxxxx (“Optionee”)
by the Company as of November 7, 2005 (which date shall be deemed the “Date of
Grant”) pursuant to an Agreement dated November 7, 2005 (the “Agreement”)
between the Company and the Optionee and which Option is assumed by the Company.
This is an Option to purchase up to 100,000
shares
of the Company's Common Stock, no par value (the “Stock”), at an exercise price
per share equal to Sixty Cents ($0.60) (the “Option Price”). This Option shall
be subject to the terms and conditions set forth herein. This 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”).
2. Exercise
Schedule.
This
Option vests on the date that the first purchase order of SFSH Products as
defined in the Agreement is received from certain Customers (also as defined
in
the Agreement), provided that such purchase order directly resulted from a
meeting arranged with the certain Customers within 90 days of this Grant Date
and/or that such Agreement has not been terminated.
3. Method
of Exercise.
This
Option shall be exercisable in whole or in part by written notice which shall
state the election to exercise this Option, the number of shares of Stock in
respect of which this 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. 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 Board of Directors 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 this
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.
4. 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 (or other applicable
registration) in place for this Option, 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 Company shall
require to effect an exercise of this 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 Board of Directors in its absolute discretion.
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This
Option may also be exercised by a cashless exercise procedure pursuant to a
formula (“Formula Cashless Exercise”), or a combination of cash and Formula
Cashless Exercise. In the event of a Formula Cashless Exercise, the Optionee
shall surrender this Option to the Company 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; and, in lieu of paying the Option Price in
cash, the Optionee shall surrender this Option for that number of shares of
common stock determined by multiplying the number of shares of common stock
to
which it would otherwise be entitled by a fraction, the numerator of which
shall
be the difference between (i) the average Market Price per share of the common
stock for the five (5) Trading Days immediately prior to the date of delivery
of
the cashless exercise notice to the Company (the “Cashless Exercise Market
Price”) and (ii) the Option Price, and the denominator of which shall be the
Cashless Exercise Market Price. As used herein, “Market Price” means, as of any
Trading Day, (i) the closing sale price for the shares of common stock on the
NASD OTC Bulletin Board (“OTCBB”) as reported by Bloomberg, or (ii) if the OTCBB
is not the principal trading market for the shares of Common Stock, the closing
sale price on the principal trading market for the common stock as reported
by
Bloomberg, or (iii) if market value cannot be calculated as of such date on
any
of the foregoing basis, the Market Price shall be the fair market value as
reasonably determined in good faith by the Company’s Board of Directors. As used
herein, a “Trading Day” shall mean any day on which the common Stock is traded
for any period on the OTCBB, or on the principal securities exchange or other
securities market on which the common stock is then being traded.”
(a) This
Option shall terminate and become null and void on the fifth (5th)
anniversary of the Date of Grant.
(b) To
the
extent not previously exercised, (i) this 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 this Option or substitutes an equivalent option or right
pursuant to Section 6 below, and (ii) the Board of Directors in its sole
discretion may by written notice (“cancellation notice”) cancel, effective upon
the consummation of a corporate transaction described in Section 5(b)(A) below
in which the Company does survive, this Option (or portion thereof) that remains
unexercised on such date. The Board of Directors shall give written notice
of
any proposed transaction referred to in this Section 5(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 this Option if and to the extent that
it
then is exercisable. The Optionee may condition his exercise of this Option
upon
the consummation of a transaction referred to in this Section 5(b).
(A) As
used
in Section 5(b) above, a corporate transaction in which the Company does survive
shall mean the 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).
(c) 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 corporate transaction subject to this Section 5.
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6. Stock
Dividend or Reorganization.
(a) If
(i)
the Company shall at any time be involved in a transaction described in Section
424(a) of the Code (or any successor provision) or any “corporate transaction”
described in the regulations thereunder; (ii) the Company shall declare a
dividend payable in, or shall subdivide or combine, its Common Stock or (iii)
any other event with substantially the same effect shall occur, the Board of
Directors shall, subject to applicable law, with respect to this Option,
proportionately adjust the number of shares of Common Stock subject to this
Option and/or the exercise price per share so as to preserve the rights of
the
Optionee substantially proportionate to the rights of the Optionee prior to
such
event.
(b) In
the
event that the presently authorized capital stock of the Company is changed
into
the same number of shares with a different par value, or without par value,
the
stock resulting from any such change shall be deemed to be Common Stock within
the meaning of this Option, and this Option shall apply to the same number
of
shares of such new stock as it applied to old shares immediately prior to such
change.
(c) If
the
Company shall at any time declare an extraordinary dividend with respect to
the
Common Stock, whether payable in cash or other property, the Board of Directors
may, subject to applicable law, in the exercise of its sole discretion and
with
respect to this Option, proportionately adjust the number of shares of Common
Stock subject to this Option and/or adjust the exercise price per share so
as to
preserve the rights of the Optionee substantially proportionate to the rights
of
the Optionee prior to such event.
(d) The
foregoing adjustments in the shares subject to this Option shall be made by
the
Board of Directors, or by the applicable terms of any assumption or substitution
document.
(e) The
grant
of this Option shall not affect in any way the right or power of the Company
to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge, consolidate or dissolve, to liquidate or to
sell or transfer all or any part of its business or assets.
7. Transferability.
Unless
otherwise determined by the Board of Directors, this Option is not transferable
otherwise than by will or under the applicable laws of descent and distribution,
and during the lifetime of the Optionee this Option shall be exercisable only
by
the Optionee or the Optionee’s guardian or legal representative. In addition,
this Option shall not be assigned, negotiated, pledged or hypothecated in any
way (whether by operation of law or otherwise), and this Option shall not be
subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, negotiate, pledge or hypothecate this Option, or in the event
of any levy upon this Option by reason of any execution, attachment or similar
process contrary to the provisions hereof, this 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.
8. 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
this
Option, in whole or in part, prior to the date of exercise of this
Option.
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9. No
Right to Employment.
Neither
this Option nor this Agreement shall confer upon the Optionee any right to
employment or service with the Company.
10. Law
Governing.
This
Agreement shall be governed in accordance with and governed by the internal
laws
of the State of Florida.
11. 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.
12. 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.
(a) Exercise
of Option. There
may
be a regular federal income tax liability upon the exercise of this 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.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
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COMPANY:
SinoFresh
Healthcare, Inc., a Florida corporation
By:
/s/ Xxxxxxx Xxxx
Name:
Xxxxxxx Xxxx
Title:
Chairman and CEO
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Optionee
has reviewed this Option in its entirety, has had an opportunity to obtain
the
advice of counsel prior to executing this Option, and fully understands all
provisions of this Option.
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OPTIONEE:
Name:
/s/ W.
Xxxxxxxx Xxxxxx
W.
Xxxxxxxx Xxxxxx
|
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