STOCK OPTION AGREEMENT
This Stock Option Agreement is executed as of January 5, 1998, and is
between International Nursing Services, Inc., a Colorado corporation (the
"Company") and Xxxxxxx Xxxx; (the "Optionee").
WHEREAS, Optionee has agreed to enter into the employment of Cymedix Lynx
Corporation, a wholly-owned subsidiary of the Company, and the Company wishes
to provide incentive to the Optionee in such employment by providing Optionee
with a means of benefiting from equity ownership in the Company ; and
NOW, THEREFORE, The Company hereby grants options to Optionee upon the
following terms:
1. Grant of Option. The Optionee is hereby granted, as of the this
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date (the "Grant Date"), an option (the "Option") to purchase 400,000 shares
of Common Stock of the Company (the "Option Shares").
2. Exercise Price. The exercise price pursuant at which the Option
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shall be exercised is $.1875 per share (the "Exercise Price").
3. Term. This Option shall expire on January 4, 2001, if not
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exercised in full and no part of the Option shall be exercised
thereafter.
4. Vesting. This Option shall not be
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immediately exercisable, but shall vest and become exercisable in increments
of 33.33% of the total shares granted hereunder on each of the first three
anniversary dates hereof, so long as the Optionee has then been continuously
employed by the Company or any affiliate thereof since the date hereof.
5. Termination of Employment. Subject to the terms set forth in any
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employment or other binding agreement, in the event an Optionee's Current
Position, as defined below, with the Company shall terminate (i) "for cause,"
as defined below, while holding an unexercised portion of the Option, that
portion of the Option which has not already been exercised shall expire
coincident with the termination of the Optionee's Current Position, or (ii)
for a reason other than "for cause," other than by reason of disability or
death as discussed below, the portion of the Option which is exercisable on
the date of such termination shall be exercisable until a date three (3)
months after such date of termination or shall expire coincident with such
position with the Company or a subsidiary or affiliate of the Company as an
employee. For purposes hereof, "for cause" shall mean termination of an
Optionee's Current Position because of a determination by the Company's Board
of Directors that such Optionee has committed (i) misfeasance, waste of
corporate assets, gross negligence or willful continued failure to
substantially perform his reasonably assigned duties or (ii) dishonest or
illegal conduct that is demonstrably injurious to the Company, provided,
however, that termination of Optionee's Executive Employment Agreement for the
reasons set forth in Section 12(a)(3) thereof shall not be termination "for
cause" hereunder. Upon the termination of an Optionee's Current Position with
the Company by reason of disability or death, the exercisable portion of the
Option may be exercised within one (1) year after such termination.
Notwithstanding anything in this Section 5 to the contrary, the Board of
Directors of the Company, in its sole discretion, may waive any restrictions
contained in this Section 5, including applicable exercise periods.
6. Exercise of Option. To the extent exercisable, this option may
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be exercised in whole or in part and from time to time until fully exercised
or until the option expiration date set forth above. This Option may be
exercised only by the Optionee, his guardian or legal representative during
the Optionee's lifetime and, thereafter, by his heirs or executor. Neither
this option nor any portion thereof or interest therein may be sold, pledged,
assigned or transferred in any manner other than by will or by the laws of
descent and distribution.
Exercise of this option shall not be effective until the Company has
received written notice of exercise, specifying the number of whole Option
Shares to be purchased. Such notice shall be accompanied by full payment of
the aggregate Exercise Price for the number of Option Shares so purchased in
cash, by cashier's check, certified check, bank draft or money order, through
the delivery of shares of Company Common Stock or through the delivery of
options exercisable for shares of Company Common Stock for cancellation, with
net fair market equal to the Exercise Price. Thereafter, a certificate or
certificates representing the Option Shares so purchased shall, within a
reasonable time, be issued in the Optionee's name and delivered to the
Optionee, subject to compliance with applicable securities laws. Upon a
partial exercise of this Option, this Agreement shall be automatically amended
to reduce the number of Option Shares covered by this option by the number of
Option Shares so purchased without the necessity of the execution of a new
agreement or a formal written amendment of this Agreement.
7. Certain Taxes. The Optionee authorizes The
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Company to withhold,
in accordance with applicable law, from any Option Shares to be issued to
an optionee upon exercise by the Optionee of all or a portion of this Option,
a number of Option Shares based on their fair market value equal to the amount
of any taxes required to be withheld by any federal, state or local law or
regulation as a result of the exercise of this option. In this regard, the
optionee acknowledges and agrees that this withholding is mandatory and the
determination by The Company of the fair market value of any Option Shares on
the date of exercise of this option shall be final and conclusive in all
respects. The Option granted hereunder is not intended to be a qualified
option under the Internal Revenue Code of 1986, as amended.
8. Transfer of Option Shares. The Optionee agrees that the Option
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Shares acquired upon exercise of this Option shall be acquired for his own
account for investment purposes only and not with a view to any distribution
or public offering thereof within the meaning of the Securities Act of 1933
(the "Act") or other applicable securities laws. If the Company so
determines, any stock certificates issued upon exercise of this Option shall
bear a legend to the effect that the Option Shares have been so acquired. The
Company shall not be required to bear any expenses of compliance with the Act,
other applicable securities laws or the rules and regulations of any national
securities exchange or other regulatory authority in connection with the
registration, qualification or transfer, as the case may be, of this Option or
any Option Shares acquired upon the exercise thereof. The Optionee
acknowledges that he is aware that his right to transfer the Option Shares
will be restricted in accordance with Rule 144, unless such Option Shares are
so registered. The foregoing restrictions on the transfer of the Option
Shares shall not apply if (a) The Company shall have been furnished with an
opinion of counsel satisfactory in form and substance to the Company to the
effect that such transfer will be in compliance with the Act and other
applicable securities laws, or (b) the Option Shares shall have been duly
registered in compliance with the Act and other applicable securities laws.
9. Acceptance of Stock Option Agreement. The Optionee hereby
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approves and accepts the terms, conditions, and provisions of this Stock
Option Agreement and agrees to be bound hereby, and further agrees that his
executors, administrators, heirs, successors, and assigns shall be bound
hereby and thereby. Without limitation of the foregoing, the Optionee hereby
agrees, individually and for his executors, administrators, heirs, successors,
and assigns, that all decisions or interpretations of the Company or its duly
authorized representatives with regard to any and all aspects of this
Agreement and the administration thereof shall be binding, conclusive, and
final.
10. Address for Notices. The parties hereto designate the respective
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addresses set forth below as the addresses for receipt of any notice under
this Stock Option Agreement.
11. Merger, Consolidation or Change of
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Control. In connection with any merger, consolidation, change in control or
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similar reorganization, excluding a public offering
("Reorganization"), the Company may in its discretion:
a. Negotiate a binding agreement whereby
any acquiring or successor corporation will assume each Option then
outstanding or substitute an equivalent option; or
b. Authorize cash payments to Optionee equal to the difference
between the aggregate Exercise Price of the option then outstanding
irrespective of the Option's current exercisability and the fair market value
of the Shares covered by the Option. Any cash payment which the Company may
make shall be made within sixty (60) days following such authorization and
fully discharge any and all obligations the Company may have in connection
with the options. Notwithstanding the forgoing, the Company shall have no
obligation to take any action with respect to any option in connection with a
Reorganization.
12. Adjustments. In the event of a stock dividend, stock split or
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other subdivision, consolidation or similar change in the outstanding shares
of Common Stock or capital structure of the Company (collectively, a "Stock
Adjustment"), the following shall occur hereunder: (i) the number of shares of
Common Stock reserved or otherwise available for exercise of the Option, shall
be adjusted proportionately (and automatically reduced by any fraction
resulting from such adjustment) ; and (ii) the Exercise Price per share of
outstanding Options shall be adjusted so that the aggregate Exercise Price
payable pursuant to each outstanding Option after the Stock Adjustment shall
equal the aggregate amount so payable prior to the Stock Adjustment. In the
event of any dispute concerning such adjustment, the decision of The Company
shall be conclusive. If a Stock Adjustment is made, The Company shall notify
all Optionees of such adjustment within thirty (30) days of making such an
adjustment, which notification shall state the adjusted number of shares of
Common Stock for which a particular option is exercisable.
13. Use of Services; Successors. Nothing herein confers any right or
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obligation on the Optionee to continue rendering services to the Company or
shall affect in any way the Optionee's right or the right of the Company, as
the case may be, to terminate the Optionee's services at any time.
14. Entire Agreement. This Agreement constitutes the entire
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understanding between the Optionee and the Company, and supersedes all other
agreements, whether written or oral, with respect to the acquisition by the
Optionee of his Option and/or Option Shares.
15. Amendment; Governing Law. Any amendment
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or modification hereto shall be in writing and executed by both parties
hereto. This Agreement shall be governed, interpreted and construed under
Colorado law, excluding however the rules applicable to conflict of laws.
IN WITNESS WHEREOF, the parties hereto execute this Stock option
Agreement with the intention to be fully bound as of the date first stated
above.
INTERNATIONAL NURSING SERVICES, INC.
By:___________________________________
Title: President
Address: 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
____________________________________
Optionee Name:
Address:
