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EXHIBIT 10.48
BIOFIELD CORP.
STOCK OPTION AGREEMENT
Date of Grant:
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No. of Shares:
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1. Grant of Option. FOR VALUE RECEIVED, Biofield Corp., a Delaware corporation
(the "Company"), hereby grants to__________________ ("Optionee"), the following
option ("Option") to subscribe for and purchase, upon the terms and conditions
hereinafter set forth, an aggregate of ___________ shares (subject to adjustment
as hereinafter provided) of the Company's common stock, par value $.001 per
share ("Stock") at an exercise price equal to $______ per share ("Exercise
Price"). It is understood that this Option is not intended to constitute an
incentive stock option as that term is defined in Section 422A of the Internal
Revenue Code of 1986, as amended and is not being issued pursuant to any plan of
the Company.
2. Term and Maturity. The term of the option is ten years from date of grant,
unless sooner terminated. The option is vested according to the following
schedule:
Period of Optionee's
Continuous Relationship
With the Company or Related
Corporation From the Date Portion of Total Option
the Option is Granted Which is Exercisable
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after 1 year 25%
after 2 years 50%
after 3 years 75%
after 4 years 100%
3. Shares to be Fully Paid; Reservation. The Company covenants and agrees that
when issued and paid for in accordance with the terms of this Stock Option
Agreement, the shares of Common Stock underlying this Option shall, on issuance,
be fully paid and nonassessable and free from all taxes, liens and charges
related to the issuance of the shares. The Company further covenants and agrees
that during the period within which the rights represented by this Option may be
exercised, the Company shall, at all times, have authorized and reserved for the
purpose of issuance or transfer on exercise of this Option a sufficient number
of shares subject to this Option to provide for its exercise.
4. Procedure for Exercise. Subject to the vesting schedule described in Section
2 above, the Optionee may exercise the Option in whole or in part, but not as to
any fractional shares, by surrender of this Option, properly endorsed if
required, at the principal office of the Company, and
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by delivering cash, certified check or bank check the aggregate Exercise Price
for the number of shares to be purchased pursuant to such purchasing the shares
of Common Stock for investment purposes and not with a view to distribution
otherwise than in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and agreeing not to offer to sell, sell or otherwise dispose
of, any of such shares acquired by Optionee pursuant to this Option in violation
of the Securities Act or any applicable state securities laws. The Shares
purchased shall be deemed to be issued to the Optionee on the date on which the
Optionee is surrendered and payment is made for the shares. Certificates
representing the shares purchased shall be delivered to the Optionee within ten
days after the rights represented by the Option have been properly exercised.
Unless the Option shall have expired or shall have been fully exercised, a new
Stock Option Agreement in the same form as this Stock Option Agreement
representing any number of shares for which this Option shall not have been
exercised, shall also be delivered to the Optionee within that time.
5. Withholding Tax Requirement. The Company or any related corporation shall
have the right to retain and withhold from any payment of cash or Common Stock
pursuant to this Option the amount of taxes required by any government to be
withheld or otherwise deducted and paid with respect to such payment. At its
discretion, the Company may require the Optionee to reimburse the Company for
any such taxes required to be withheld by the Company and withhold shares to be
received by the Optionee in whole or in part until the Company is so reimbursed.
In lieu thereof, the Company shall have the right to withhold from any other
cash amounts due or to become due from the Company to the Optionee an amount
equal to such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes required to be withheld by the
Company to reimburse the Company for any such taxes and cancel (in whole or in
part) any such shares so withheld. If required by Section 16(b) of the Exchange
Act, the election to pay withholding taxes by delivery of shares held by any
person who at the time of exercise is subject to Section 16(b) of the Exchange
Act, shall be made either six months prior to the date the option exercise
becomes taxable or at such other times as the Company may determine as necessary
to comply with Section 16(b) of the Exchange Act.
6. Assignability and Transferability of Option. This Option and the rights and
privileges conferred hereby may not be transferred, assigned, pledged or
hypothecated in any manner (whether by operation of law or otherwise) other than
(i) by will or by the applicable laws of descent and distribution or (ii)
pursuant to a qualified domestic relations order as defined in Section 414(p) of
the Code, or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder. Any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this Option or of any right or privilege
conferred hereby, contrary to the Code or to the provisions herein, or the sale
or levy or any attachment or similar process upon the rights and privileges
conferred hereby shall be null and void. The designation by an Optionee of a
beneficiary does not, in and of itself, constitute an impermissible transfer
under this Section.
7. Termination of Relationship. If the Optionee's relationship with the Company
or any related corporation ceases for any reason other than termination for
cause, death or total disability, and unless by its terms the Option sooner
terminates or expires, then the Optionee may exercise, for a three-month period,
that portion of the Option which is exercisable at the time of such
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cessation, but the Option shall terminate at the end of the three-month period
following such cessation as to all shares for which it has not theretofore been
exercised.
If the Optionee is terminated for cause, the Option granted hereunder
shall automatically terminate as of the first discovery by the Company of any
reason for termination for cause, and such Optionee shall thereupon have no
right to purchase any shares pursuant to such Option. "Termination for cause"
shall mean dismissal for dishonesty, conviction or confession of a crime
punishable by law (except minor violations), fraud, misconduct or disclosure of
confidential information. If an Optionee's relationship with the Company or any
related corporation is suspended pending an investigation of whether or not the
Optionee shall be terminated for cause, all Optionee's rights under any option
granted hereunder likewise shall be suspended during the period of
investigation.
If the Optionee's relationship with the Company or any related
corporation ceases because of a total disability, the Option shall not
terminate. The term "total disability" refers to a mental or physical impairment
of the Optionee which is expected to result in death or which has lasted or is
expected to last for a continuous period of 12 months or more and which causes
the Optionee to be unable, in the opinion of the Company and two independent
physicians, to perform his or her duties for the Company and to be engaged in
any substantial gainful activity. Total disability shall be deemed to have
occurred on the first day after the Company and the two independent physicians
have furnished their opinion of total disability to the Company.
For purposes of this Section 7, a transfer of relationship between or
among the Company and/or any related corporation shall not be deemed to
constitute a cessation of relationship with the Company or any of its related
corporations. For purposes of this Section 7, employment shall be deemed to
continue while the Optionee is on military leave, sick leave or other bona fide
leave of absence. The foregoing notwithstanding, employment shall not be deemed
to continue beyond the first 90 days of such leave, unless the Optionee's
reemployment rights are guaranteed by statute or by contract.
As used herein, the term "related corporation," when referring to a
subsidiary, shall mean any corporation (other than the Company) or other entity
in, at the time of the granting of the option, an unbroken chain of corporations
or other entities ending with the Company, if stock or other interests
possessing 50% or more of the total combined voting power of all classes of
stock or other interests of each of the corporations or other entities other
than the Company is owned by one of the other corporations or other entities in
such chain. When referring to a parent corporation or other entity, the term
"related corporation" shall mean any corporation or other entity in an unbroken
chain of corporations or other entities ending with the Company if, at the time
of the granting of the option, each of the corporations or other entities other
than the Company owns stock or other interests possessing 50% or more of the
total combined voting power of all classes of stock or other interests in one of
the other corporations or other entities in such chain.
8. Death of Optionee. If the Optionee dies while he or she has a relationship
with the Company or any related corporation or within the three-month period (or
12-month period in the case of
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totally disabled Optionees) following cessation of such relationship, the Option
held by such Optionee to the extent that the Optionee would have been entitled
to exercise such Option, may be exercised within one year after his or her death
by the personal representative of his or her estate or by the person or persons
to whom the Optionee's rights under the Option shall pass by will or by the
applicable laws of descent and distribution.
9. Status of Shareholder. Neither the Optionee nor any party to which the
Optionee's rights and privileges under this Option may pass shall be, or have
any of the rights or privileges of, a shareholder of the Company with respect to
any of the shares issuable upon the exercise of this Option granted unless and
until payment for such shares shall have been made in full and until the date of
issuance of a stock certificate for such shares.
10. Continuation of Employment. Nothing herein shall confer upon the Optionee
any right to continue in the employ of the Company or of a related corporation,
or to interfere in any way with the right of the Company or of any such related
corporation to terminate his or her employment or other relationship with the
Company at any time.
11. Modification of Option. This Agreement may only be modified by a writing
signed by each of the parties hereto.
12. Adjustments Upon Changes in Capitalization. the number of shares purchasable
upon the exercise of the Option shall be subject to adjustment if the Company
shall (i) pay a dividend in shares of Stock or make a distribution in shares of
Stock, (ii) subdivide (by means of stock split or otherwise) its outstanding
shares of Stock, (iii) combine or reduce (by means of reverse stock split or
otherwise) its outstanding shares of Stock, or (iv) issue by reclassification of
its shares of Stock other securities of the Company. The exercise price and
number of shares issuable upon exercise of the Option immediately prior thereto
shall be proportionately adjusted so that Optionee shall be entitled to receive
upon payment of the aggregate exercise price the number of shares of the Company
which Optionee would have owned or would have been entitled to receive after the
happening of any of the events described above had the Option been exercised
immediately prior to the happening of any of the events described above had the
Option been exercised immediately prior to the happening of such event or any
record date with respect thereto. Any adjustment made pursuant to this paragraph
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
13. Effect of Liquidation, Reorganization or Change in Control.
(a) Cash, Stock or Other Property for Stock. Except as provided in
Section 13(b) below, upon a merger (other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation,
reorganization (other than a mere reincorporation or the creation of a
holding company) or liquidation of the Company, as a result of which the
stockholders of the Company receive cash, stock or other property in exchange
for or in connection with their shares of Common Stock, the
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Option shall terminate, but the Optionee shall have the right immediately prior
to any such merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation to exercise such Option in whole or in part
whether or not the vesting requirements set forth in this Option Agreement have
been satisfied.
(b) Conversion of Options on Stock for Stock Exchange. If the
stockholders of the Company receive capital stock of another corporation
("Exchange Stock") in exchange for their shares of Common Stock in any
transaction involving a merger (other than a merger of the Company in which the
holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation
or reorganization (other than a mere reincorporation or the creation of a
holding company), the Option shall be converted into an option to purchase
shares of Exchange Stock unless the Company and corporation issuing the Exchange
Stock, in their sole discretion, determine that such Option granted hereunder
shall not be converted into options to purchase shares of Exchange Stock but
instead shall terminate in accordance with the provisions of Section 13(a). The
amount and price of converted options shall be determined by adjusting the
amount and price of the Option granted hereunder in the same proportion as used
for determining the number of shares of Exchange Stock the holders of the Common
Stock receive in such merger, consolidation, acquisition of property or stock,
separation or reorganization. The converted options shall be fully vested
whether or not the vesting requirements set forth in this Option Agreement have
been satisfied.
(c) Fractional Shares. In the event of any adjustment in the number of
shares covered by the Option, any fractional shares resulting from such
adjustment shall be disregarded and the Option shall cover only the number of
full shares resulting from such adjustment.
(d) Determination of Board to Be Final. All Section 13 adjustments
shall be made by the Board, and its determination as to what adjustments shall
be made, and the extent thereof, shall be final, binding and conclusive.
14. Securities Regulation. Shares shall not be issued with respect this Option
unless the exercise of such Option and the issuance and delivery of such shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, any applicable state securities laws, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or inter-dealer quotation
system upon which the shares may then be listed, and shall be further subject to
the approval of counsel for the Company with respect to such compliance,
including the availability of an exemption from registration for the issuance
and sale of any shares hereunder. Inability of the Company to obtain from any
regulatory body having jurisdiction the authority deemed by the Company's
counsel to be necessary for the lawful issuance and sale of any shares hereunder
or the unavailability of an exemption from registration for the issuance and
sale of any shares hereunder shall relieve the Company of any liability in
respect of the nonissuance or sale of such shares as to which such requisite
authority shall not have been obtained.
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As a condition to the exercise of the Option, the Company may require
the Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such representation is required by any relevant provision of the aforementioned
laws. At the option of the Company, a stop-transfer order against any shares of
stock may be placed on the official stock books and records of the Company, and
a legend indicating that the stock may not be pledged, sold or otherwise
transferred unless an opinion of counsel is provided (concurred in by counsel
for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Company may also require such other
action or agreement by the Optionee as it may from time to time deem to be
necessary or advisable. THE COMPANY SHALL NOT BE OBLIGATED, BY REASON OF THIS
PROVISION OR OTHERWISE, TO UNDERTAKE REGISTRATION OF THE OPTIONS OR STOCK
HEREUNDER.
Should any of the Company's capital stock of the same class as the
stock subject to the Option granted hereunder be listed on a national securities
exchange, all stock issued hereunder if not previously listed on such exchange
or inter-dealer quotation system shall be authorized by that exchange or system
for listing thereon prior to the issuance thereof.
15. Legend. The Optionee consents to the placement of any legend required by
applicable state securities laws and of the following legend on each certificate
representing the Stock:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT BE
SOLD, TRANSFERRED, EXCHANGED OR OTHERWISE DISPOSED OF UNLESS (1) A
REGISTRATION STATEMENT UNDER SUCH ACT IS THEN IN EFFECT WITH RESPECT
THEREOF, (2) A WRITTEN OPINION FROM COUNSEL FOR THE ISSUER OF OTHER
COUNSEL FOR THE HOLDER REASONABLE ACCEPTABLE TO THE ISSUER HAS BEEN
OBTAINED TO THE EFFECT THAT NO SUCH REGISTRATION IS REQUIRED, OR (3) A
"NO ACTION" LETTER OR ITS THEN EQUIVALENT HAS BEEN ISSUED BY THE
SECURITIES EXCHANGE COMMISSION TO THE EFFECT THAT NO SUCH REGISTRATION
IS REQUIRED IN CONNECTION THEREWITH."
16. Miscellaneous
(a) This Agreement shall be construed in accordance with, and
governed by, the internal laws of the State of Delaware (without reference to
its rules as to conflicts of law).
(b) The section headings herein are for convenience only and
shall not affect the construction thereof.
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(c) All notices hereunder shall be in writing and if to the
Company, shall be delivered personally to the Secretary of the Company or
mailed, by certified mail, return receipt requested or by guaranteed next
business day delivery service to its principal office, addressed to the
attention of the Secretary, and if to the Optionee, shall be delivered
personally or mailed, by certified mail, return receipt requested or by
guaranteed next business day delivery service to the address noted on the
signature page of this Share Option Agreement. Either party may change its
address for receipt of notices by advising the other party of such change in
writing in accordance with the preceding sentence.
(d) This Agreement may be executed in one or more counterparts
but all such separate counterparts shall constitute but one and the same
instrument; provided that, although executed in counterparts, the executed
signature pages of each such counterpart may be affixed to a single copy of this
Agreement which shall constitute an original.
IN WITNESS WHEREOF, the Company has caused this option to be executed
by its duly authorized officer as of this ___ day of _________, 1997.
BIOFIELD CORP.
By:
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Xxxxxxx X. Xxxxxxxxx
Executive Vice President
General Counsel
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Name
Address:
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Social Security Number
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NOTICE OF EXERCISE
BIOFIELD CORP.
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
I hereby exercise my right to purchase ______ shares of Common Stock
(the "Shares") of Biofield Corp., a Delaware corporation, pursuant to, and in
accordance with, the Biofield Corp. Stock Option Agreement ("Agreement") dated
__________. As provided in that Agreement, I deliver herewith a certified or
bank cashier's check in the amount of the aggregate option price. Please deliver
to me stock certificates representing the subject shares registered as follows:
Name:
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Address:
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Social Security Number:
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The aggregate exercise price is $___________ (total number of shares to
be purchased x $____ per share).
1. If the sale of the Shares and the resale thereof has not,
prior to the date hereof, been registered pursuant to a registration statement
filed and declared effective under the Securities Act of 1933, as amended (the
"Act"), the undersigned hereby agrees, represents, and warrants that:
(a) the undersigned is acquiring the Shares for his or her own
account (and not for the account of others), for investment and not with a view
to the distribution or resale thereof;
(b) By virtue of his or her position, the undersigned has
access to the same kind of information which would be available in a
registration statement filed under the Act;
(c) the undersigned is a sophisticated investor;
(d) the undersigned understands that he or she may not sell or
otherwise dispose of the Shares in the absence of either (i) a registration
statement filed under the Act or (ii) an exemption from the registration
provisions thereof; and
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(e) The certificates representing the Shares may contain a
legend to the effect of subsection (d) of this Section 1.
2. If the sale of the Shares and the resale thereof has been
registered pursuant to a registration statement filed and declared effective
under the Act, the undersigned hereby represents and warrants that he or she has
received the applicable prospectus and a copy of the most recent annual report,
as well as all other material sent to stockholders generally.
3. The undersigned acknowledges that the number of shares of
Common Stock subject to the Agreement is hereafter reduced by the number of
shares of Common Stock represented by the Shares.
4. The undersigned understands that there are certain tax
implications to his or her exercise of his or her right to purchase shares of
Common Stock under the Agreement. The undersigned further understands that it is
his or her obligation to confer with his or her own tax advisor with respect to
such tax implications.
Very truly yours,
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(signature)
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(please type or print name)
