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EXHIBIT 4.4 - Xxxxxxxx Option Agreement
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THE SECURITIES IN THE FORM OF NON-QUALIFIED STOCK OPTIONS OF CELL ROBOTICS
INTERNATIONAL, INC. HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES CANNOT BE SOLD,
TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS.
CELL ROBOTICS INTERNATIONAL, INC.
(A COLORADO CORPORATION)
Option No. NQ-01 450,000 Common Stock Options
CERTIFICATE FOR COMMON STOCK OPTIONS
This certifies that, for value received, XXXXXX X. XXXXXXXX, or registered
assigns ("Optionholder"), is the registered owner of the above indicated number
of Options entitling the Optionholder, subject to the provisions of paragraph 1
below, to subscribe for, purchase and receive one (l) fully paid and
non-assessable share of Common Stock, $.004 par value, (the "Common Stock") of
Cell Robotics International, Inc., a Colorado corporation (the "Company"), upon
presentation and surrender of this Option and upon payment of the Exercise Price
as hereinbelow defined, for the shares of Common Stock of the Company, but only
subject to the conditions set forth herein. The Exercise Price, the number of
shares purchasable upon exercise of each Option, the number of Options
outstanding and the Expiration Date are subject to adjustments upon the
occurrence of certain events. The Optionholder may exercise all or any number
of the Options represented hereby. Upon exercise of this Option, the form of
election hereinafter provided for must be duly executed and the instructions for
registration of the Common Stock acquired by such exercise must be completed.
If the subscription rights represented hereby shall not be exercised at or
before the Expiration Date, this Option shall become and be void without further
force or effect, and all rights represented hereby shall cease and expire.
1. VESTING.
The Options represented by this Certificate are subject to vesting.
Options exercisable to purchase 150,000 shares of Common Stock shall vest and
become exercisable on the closing of a public offering by the Company of
2,000,000 shares of Common Stock through several underwriters, of which Xxxxxxx
Investment Co., Inc. and Cohig & Associates, Inc. shall serve as the
representatives of such underwriters ("Public Offering"); and the balance of
Option, shall vest on November 30, 2002; provided, however, that Options
exercisable to purchase an additional 150,000 shares of Common Stock will vest
30 days after the end of any quarter in which the Company reports pre-tax income
for any fiscal quarter of at least $50,000; and Options exercisable to purchase
an additional 150,000 shares of Common Stock shall vest and become exercisable
upon the Company reporting its first fiscal year with net income of at least
$500,000.
2. TERM OF OPTIONS.
The Options evidenced by this Certificate may be exercised in
whole or in part commencing upon the respective vesting date such Option (the
"Exercise Date") and ending 36 months from each respective Exercise Date
("Expiration Date"), but in no event later than December 31, 2002 (the "Final
Expiration Date"); provided, however, that the Expiration Date may be
extended by the Company under paragraph 3.
3. NOTICE OF EXTENDED EXPIRATION DATE.
The Company may extend the Expiration Date for the exercise of this
Option at any time by giving sixty (60) days' written notice thereof to the
Optionholder. If this Option is not exercised on or before the extended
expiration date, it shall become wholly void.
4. EXERCISE PRICE.
Each vested and exercisable Options evidenced by this Certificate
shall be exercisable to purchase one share of Common Stock of the Company at an
Exercise Price equal to the initial price per share of the shares of Common
Stock sold by the Company in the Public Offering, or $4.50 per share, whichever
is greater (the "Exercise Price"). The Exercise Price is subject to adjustment
under certain circumstances more fully describe in paragraphs 5 and 6 below.
5. ADJUSTMENTS OF EXERCISE PRICE AND SHARES.
In the event the Common Stock issuable upon exercise of this Option
shall be changed into the same or different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification or
otherwise, or in the event the Company shall at any time issue Common Stock by
way of dividend or other distribution on any stock of the Company, or subdivide
or combine the outstanding shares of Common Stock, then in each such event the
Holder of this Option shall have the right thereafter to exercise such Option
and receive the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change
by holders of the number of shares of Common Stock into which such Option might
have been exercised immediately prior to such reorganization, reclassification
or change. In the case of any such reorganization, reclassification or change,
the Exercise Price shall also be appropriately adjusted so as to maintain the
aggregate Exercise Price. Further, in case of any consolidation or merger of
the Company with or into another corporation in which consolidation or merger
the Company is not the continuing corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety,
or substantially as an entirety, the Company shall cause effective provision to
be made so that the Optionholder shall have the right thereafter, by exercising
this Option, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such consolidation, merger, sale or
conveyance by holders of the number of shares of Common Stock into which such
Option might have been exercised immediately prior to such consolidation,
merger, sale or conveyance, which provision shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Option. The foregoing provisions shall similarly
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apply to successive reclassifications, capital reorganizations and changes of
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances.
Notwithstanding the foregoing, no adjustment of the Exercise Price
shall be made as a result of or in connection with (1) the issuance of Common
Stock of the Company pursuant to options, warrants and share purchase agreements
now in effect or hereafter outstanding or created, (2) the establishment of
option plans of the Company, the modification, renewal or extension of any plan
now in effect or hereafter created, or the issuance of Common Stock upon
exercise of any options pursuant to such plans, (3) the issuance of Common Stock
in connection with an acquisition, consolidation or merger of any type in which
the Company is the continuing corporation, or (4) the issuance of Common Stock
in consideration of such cash, property or service as may be approved by the
Board of Directors of the Company and permitted by applicable law.
6. ADJUSTMENT TO EXERCISE PRICE.
The Company may, in its sole discretion, lower the exercise price at
any time, or from time-to-time. When any adjustment is made in the exercise
price, the Company shall cause a copy of such statement to be mailed to the
Optionholder, as of a date within ten (10) days after the date when the purchase
price has been adjusted.
7. MANNER OF EXERCISE.
The Optionholder of the Options evidenced by this Option Certificate
may exercise all or any whole number of such Options during the Exercise Period
in the manner stated herein. This Option Certificate, together with the
purchase form provide for herein duly executed by the Optionholder or by the
Optionholder's duly authorized attorney, plus payment of the purchase price,
shall be surrendered to the Company. If upon exercise of any Options evidenced
by this Option Certificate the number of Options exercised shall be less than
the total number of Options so evidenced, there shall be issued to the
Optionholder a new Option Certificate evidencing the number of Options not so
exercised.
8. MANNER OF PAYMENT.
The purchased price of each Option shall be paid, to the extent
permitted by applicable statutes and regulations, either (i) in cash at the time
the Option is exercised, or (ii) by delivery to the Company of other common
stock of the Company valued at its then-established fair market value, or (iii)
by delivery to the Company of either Options or Warrants of the Company, valued
at the difference between their Exercise Price and their then-established fair
market value of the Company's common stock, or (iv) according to a deferred
payment or other arrangement (which may include, without limiting the generality
of the foregoing, the use of other common stock of the Company) with the person
to whom the option is granted or to whom the option is transferred, or (v) in
any other form of legal consideration that may be acceptable to the Board of
Directors, in their discretion. For the purposes of this Paragraph 6, the fair
market value of the Company's common stock shall be (i) the closing sale price
for the Common Stock on the primary exchange upon which the shares are listed
and traded on the date the Warrant is exercised, or (ii) if the shares are not
traded on any national exchange, the closing sale
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price for the Common Stock on the NASDAQ National Market on the date the Warrant
is exercised, or (iii) if the shares or neither traded on a national exchange
nor listed on the NASDAQ National Market, then the average of the bid and ask
prices for the Common Stock in the Over-The-Counter Market as quoted on the
NASDAQ Small-Cap Market or (iv) if the shares of Common Stock are neither traded
on a national exchange or the NASDAQ National Market nor quoted on the NASDAQ
Small-Cap Market, the average of the bid and ask prices for the Common Stock as
quoted by any recognized securities quotation service such as the National
Quotation Bureau, Inc. or the OTC Electronic Bulletin Board on the date the
Warrant is exercised. In the case of any deferred payment arrangement, any
interest shall be payable at least annually and shall be charged at the minimum
rate of interest necessary to avoid the treatment as interest, under any
applicable provisions of the Internal Revenue Code, of any amounts other than
amounts stated to be interest under the deferred payment arrangement.
9. RESERVATION OF COMMON STOCK.
The Company agrees that the number of shares of Common Stock
sufficient to provide for the exercise of the Options upon the basis herein set
forth will at all times during the term of this Option be reserved for the
exercise thereof.
10. ISSUANCE OF COMMON STOCK UPON EXERCISE.
The Company, at its expense, shall cause to be issued, within ten (10)
days after exercise of this Option, a certificate or certificates in the name
requested by the Optionholder of the number of shares of Common Stock to which
the Optionholder is entitled upon such exercise. All shares of Common Stock or
other securities delivered upon the exercise of the Options shall be validly
issued, fully paid and non-assessable.
11. NO RIGHT AS STOCKHOLDER.
The Optionholder is not, by virtue of ownership of the Options,
entitled to any rights whatsoever of a stockholder of the Company.
12. ASSIGNMENT.
This Option is not assignable by the Optionholder hereof.
Dated: CELL ROBOTICS INTERNATIONAL, INC.
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Attest: By:
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Secretary
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PURCHASE FORM
Dated: , 199
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The undersigned hereby irrevocably elects to exercise the attached Option
to the extent of purchasing shares of Common Stock of Cell Robotics
International, Inc. and hereby makes payment of $ in payment of
the Exercise Price therefor.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
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(please typewrite or print in block letters)
Address
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Signature
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ASSIGNMENT FORM
FOR VALUE RECEIVED,
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hereby sells, assigns and transfers unto
Name
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(please typewrite or print in block letters)
Address
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the right to purchase Common Stock represented by this Option to the extent of
shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint , attorney, to
transfer the same on the books of the Company with full power of substitution in
the premises.
Signature
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Dated: , 19
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