EXHIBIT 10.5
STOCK OPTION AGREEMENT
FOR SHARES ISSUED UNDER THE
BIOLABS, INC. AMENDED AND RESTATED STOCK OPTION PLAN
THIS AGREEMENT dated and made effective the ____ day of ____
BETWEEN:
BIOLABS, INC., a company incorporated pursuant to the laws of the
State of New York, having an office at #1A - 0000 Xxxx Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Company")
OF THE FIRST PART
AND
_______, of (insert address)
(the "Optionee")
OF THE SECOND PART
WHEREAS:
A. The Company has established an amended and restated stock option plan
(the "Plan") to grant incentive options to purchase its common shares
(the "Shares") to directors, officers, employees and consultants of the
Company, and has received approval to do so from its shareholders
respecting same;
B. The Optionee is a consultant of the Company or its subsidiaries and is
eligible to receive options to purchase Shares pursuant to the Plan; and
C. The Company has determined it is in its best interests to grant an option
to the Optionee to purchase Shares, on the terms and conditions set forth
below.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of these
premises and of the sum of $1.00 paid by the Optionee to the Company and for
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged), it is hereby agreed by and between the parties hereto as
follows:
PART 1
GRANT OF OPTION
1.1 PLAN.
This Agreement is entered into pursuant to the provisions of the Plan,
as amended from time to time, the terms of which are incorporated herein and
made a part hereof. The Optionee hereby confirms that he has received a copy
of the Plan.
1.2 GRANT OF OPTION.
The Company hereby grants to the Optionee, on the terms and conditions
hereinafter set forth, an option (the "Option") to purchase at any time or
from time to time during the period hereinafter referred to, all or any part
of Shares (such Shares as from time to time are available for purchase under
this section 1.2 being hereinafter called the "Optioned Shares"), for a
purchase price of $____ per Optioned Share (the "Exercise Price").
1.3 REGULATORY AND OTHER APPROVALS.
The Option hereby granted is subject to acceptance for filing of
notice of the grant of the Option by all stock exchanges or trading
facilities on which the Shares are listed or traded at the time of grant and
any required approvals of the shareholders of the Company and relevant
securities commissions or other regulatory bodies in the United States or
Canada.
PART 2
EXERCISE OF OPTION
2.1 RIGHT TO EXERCISE.
Unless otherwise provided for in this Agreement or in the Plan, the
Optionee, upon becoming entitled to exercise the Option, will thereafter be
entitled to exercise the Option at any time with respect to all or any part
of the Optioned Shares, prior to the expiration or other termination of the
Option, as provided in Part 3 herein.
2.2 EXERCISE AND PAYMENT.
Subject to the provisions of Part 1 and Section 2.1, the Option may be
exercised by the Optionee or, if applicable, the legal representatives of the
Optionee giving two days' advance written notice to the Company (Attention: the
Secretary) marked "Confidential", signed by the Optionee, specifying the number
of Optioned Shares in respect of which the Option is being exercised,
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accompanied by payment (by certified cheque or bank draft payable to the
Company) of the entire exercise price for the number of the Optioned Shares
specified in the notice.
2.3 SHARE CERTIFICATES.
Upon any such exercise of the Option by the Optionee the Company will
as soon as is reasonably practicable, cause the transfer agent and registrar
of the Shares to deliver to the Optionee or the legal representative of the
Optionee, as the case may be, a share certificate or certificates registered
in the name of the Optionee or the legal representative of the Optionee, as
the case may be, representing the number of Shares purchased pursuant to such
exercise of the Option.
2.4 NO OBLIGATION TO EXERCISE OPTION.
Nothing herein contained or done pursuant hereto will obligate the
Optionee to purchase and/or pay for, or the Company to issue, any Optioned
Shares except Optioned Shares in respect of which the Optionee will have
exercised his Option to purchase in the manner provided under this Agreement.
PART 3
TERMINATION PRIOR TO EXPIRY DATE
3.1 TERMINATION OF OPTION.
The Option and this Agreement will terminate on the earlier of __(the
"Expiry Date") or, if the Optionee ceases to be a ______ of the company or
one of its subsidiaries prior to the Expiry Date, on the date that is _____
days after the Optionee has ceased to be a consultant, subject only to
Sections 3.2 and 3.3.
3.2 TERMINATION FOR CAUSE OR RESIGNATION.
Notwithstanding Section 3.1, the Option will immediately become
terminated and will lapse notwithstanding the original term of the Option
granted under this Agreement if the Optionee's consulting contract, if any,
is terminated for cause by the Company or one of its subsidiaries or if the
Optionee ceases to be a _____ of the Company or any of its subsidiaries for
any reason other than normal termination of the consulting contract, if any,
in accordance with its terms, retirement, in the absence of any consulting
contract, or death.
3.3. DEATH OF OPTIONEE.
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Notwithstanding Section 3.1, in the event of the death of the
Optionee, all or any part of the Optioned Shares not yet purchased by the
Optionee may be purchased by the legal representatives of the deceased
Optionee or by the person or persons to whom the rights of the Optionee have
passed by will or by operation of the laws of devolution, distribution or
descent for a period of 45 days (or until the Expiry Date if earlier) from
the date of death of the deceased Optionee to exercise the Option. Upon the
expiration of such period, the Option and this Agreement will immediately
become terminated and will lapse notwithstanding the original term of the
Option.
3.4 CHANGE IN POSITION.
A change in the office, position or duties of the Optionee from the
office, position or duties held by the Optionee on the date on which the
Option was granted will not result in the termination of the Option pursuant
to Section 3.1, provided that the Optionee remains a director, officer,
employee or consultant of the Company or any of its subsidiaries after such
change.
3.5 FULL EXERCISE.
Unless otherwise provided for in this Agreement or in the Plan, the
Option and this Agreement will terminate on the date that the Optionee will
have validly exercised the Option with respect to all of the Optioned Shares.
PART 4
CHANGE IN CONTROL
4.1 DEFINITIONS.
For the purposes of this Part 4, a "Change in Control" of the Company
will be deemed to occur where:
(a) any person becomes the beneficial owner, directly or indirectly,
of securities of the Company respecting 20% or more of the
combined voting power of the Company's then outstanding
securities or who publicly announces an intention to do so;
(b) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board of Directors
of the Company and any new director, whose appointment by the
Board of Directors
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or nomination for election by the Shareholders of the Company was
approved by vote of at least two-thirds of the directors then
still in office and who were directors at the beginning of the
period or whose election or nomination for election was
previously approved, cease for any reason to constitute a
majority thereof;
(c) the business of the Company for which the Optionee's services are
principally performed is disposed of by the Company, pursuant to a
partial or complete liquidation of the Company, a sale of assets
(including stock of a subsidiary) of the Company, or otherwise; or
(d) the Board of Directors of the Company adopt a resolution to the
effect that, for the purposes of this Agreement, a Change in
Control of the Company has occurred.
4.2 DEEMED VESTING.
In the event of a Change in Control occurring:
(a) all of the Optionee's Optioned Shares which, at the time of the
Change in Control, are unvested, if any, will be deemed to become
immediately vested and available for execution; and
(b) the Company may, upon giving the Optionee written notice to that
effect, require the acceleration of the time for the exercise of
the Options and of the time for the fulfillment of any conditions
or restrictions on such exercise.
PART 5
GENERAL
5.1 ADJUSTMENTS.
In the event of a stock dividend, subdivision, redivision,
consolidation, recapitalization, share reclassification (other than pursuant
to the Plan), or other relevant changes in the capital stock of the Company,
the Board of Directors of the Company may make such adjustment, if any, of
the number of Optioned Shares, or of the Exercise Price, or both, as it will
deem appropriate to give proper effect to such event. If because of a
proposed merger, amalgamation or other corporate arrangement or
reorganization, the exchange or replacement of the Shares for those in
another company is imminent, the Board of Directors of the Company may, in a
fair
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and equitable manner, determine the manner in which the Option will be
treated including, for example, requiring the acceleration of the time for
the exercise of the Option by the Optionee and of the time for the fulfilment
of any conditions or restrictions on such exercise. All determinations of the
Board of Directors under this Section 5.1 will be final, binding and
conclusive for all purposes.
5.2 AMENDMENT.
This Agreement may not be amended except with the written consent of
the Company, the Optionee, and if required, any stock exchanges or trading
facilities on which the Shares are listed, and the shareholders of the
Company.
5.3 CONFIDENTIALITY.
The Optionee will not, either during the term he acts as consultant
for the Company or its subsidiaries, or at any time thereafter, disclose to
any person, firm or corporation any information concerning the business
affairs of the Company which the Optionee may have acquired in the course of
or incidental to his role with the Company or otherwise, whether for his own
benefit, or to the detriment, or intended or probable detriment, of the
Company.
5.4 COUNTERPARTS.
This Agreement may be executed in any number of counterparts with the
same effect as if all parties had signed the same document. All counterparts
will constitute one and the same agreement. This Agreement may be executed
and transmitted by facsimile transmission and if so executed and transmitted
this Agreement will be for all purposes as effective as if the parties had
delivered an executed original Agreement.
5.5 CURRENCY.
All recurrences to currency are deemed to mean lawful money of the
United States (unless expressed to be in some other currency) and all amounts
to be calculated or paid pursuant to this Agreement are to be calculated in
lawful money of the United States.
5.6 ENUREMENT.
This Agreement will enure to the benefit of and be binding upon the
Company, its successors and assigns, and the Optionee, his heirs, executors
and other legal personal representatives.
5.7 GENDER.
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Words imparting the masculine gender include the feminine or neuter
gender and words in the singular include the plural and vice versa.
5.8 GOVERNING LAW.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York and the laws of the United States
applicable thereto.
5.9 INTERPRETATION OF THIS AGREEMENT AND THE PLAN.
The Option granted hereby is subject to the terms and conditions set
out in this Agreement and in the Plan. If any question or dispute arises as
to the interpretation of this Agreement or the Plan, such question or dispute
will be determined by the Board of Directors of the Company and such
determination will be final, conclusive and binding on both the Company and
the Optionee. Unless there is something in the subject or context
inconsistent therewith, or unless otherwise herein provided, the expressions
used in this Agreement will have the same meaning as are ascribed to
corresponding expressions defined in the Plan. If there is any conflict
between the terms of this Agreement and the Plan, the terms of the Plan will
govern, despite any term of this Agreement.
5.10 NO FURTHER RIGHTS.
Nothing contained in this Agreement will give the Optionee or any
other person, any interest or title in or to any of the Shares or any rights
as a shareholder of the Company or any other legal or equitable right against
the Company whatsoever other than as set forth in this Agreement and pursuant
to the exercise of the Option, nor will it confer upon the Optionee any right
to continue as a director, officer, employee or consultant of the Company or
of its subsidiaries.
5.11 NO INDUCEMENT.
By execution of this Agreement and acceptance of the Options hereby
granted, the Optionee hereby certifies to the Company that the Optionee was
not induced to participate in the Plan by expectation of employment or
continued employment with the Company or its subsidiaries.
5.12 NON-ASSIGNABILITY OF OPTIONS.
The Option will not be transferable or assignable (whether absolutely
or by way of mortgage, pledge or other charge) by the
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Optionee other than by will or other testamentary instrument or the laws of
succession except, with the consent of the Company, to a corporation, the
shares of which are wholly-owned by the Optionee, and may be exercisable
during the lifetime of the Optionee only by the Optionee.
5.13 NOTICE.
Any notice or other communication required or contemplated under this
Agreement to be given by one party to the other will be delivered or mailed
by prepaid registered post to the party to receive same at the address
indicated on page one hereof, or at such other address as a party may provide
notice of from time to time. Any notice delivered will be deemed to have
been given and received on the business day next following the date of
delivery. Any notice mailed as aforesaid will be deemed to have been given
and received on the fifth business day following the date it is posted,
provided that if between the time of mailing and actual receipt of the notice
there will be a mail strike, slow-down or other labor dispute which might
affect delivery of the notice by mail, then the notice will be effective only
if actually delivered.
5.14 OBLIGATIONS OF COMPANY.
The Company will use reasonable commercial efforts to comply with,
satisfy and fulfil promptly all conditions and requirements imposed by or
arising out of legal, regulatory, stock exchange and administrative
requirements applicable to the grant of the Option hereunder, the issue of
Optioned Shares on the exercise of the Option and the listing and posting for
trading or quotation of the Optioned Shares issued on the exercise of the
Option on such stock exchanges or trading facilities on which the Shares are
listed and posted for trading or quoted from time to time.
5.15 REPRESENTATIONS OF OPTIONEE.
The Optionee represents and warrants to the Company, as a continuing
representation and warranty that will be true and correct on the date hereof
and on each date that the Optionee exercises the Option, as if made and given
on and as of each such date, that the Optionee is acquiring the Option and
will acquire the Optioned Shares purchased by him upon any exercise of the
Option as principal.
5.16 RESERVATIONS OF OPTIONED SHARES.
The Company covenants that it has reserved, set aside and allotted the
Optioned Shares to and in favour of the Optionee, his heirs, executors and
other legal personal representatives, and that
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upon each exercise of the Option in accordance with the terms hereof and
payment of the said price as aforesaid, the Optioned Shares which the
Optionee will have duly taken up and paid for hereunder will be duly issued
and outstanding as fully paid and non-assessable.
5.17 RESTRICTIONS ON RESALE; LEGEND.
The Optionee agrees that any Optioned shares must be sold in
compliance with all registration requirements under the Securities Act of
1934, as amended, or any other relevant legislation, or an exemption
therefrom. Each certificate evidencing any of the Optioned Shares may, at
the sole discretion of the Company, bear a legend substantially as follows:
"The Shares represented by this Certificate are subject to restrictions
on transfer and may not be sold, exchanged, transferred, pledged,
hypothecated or otherwise disposed of except in accordance with and
subject to all the terms and conditions of a certain Stock Option
Agreement, a copy of which the Company will furnish to the holder of this
Certificate upon request and without charge."
5.18 TAXES.
The Optionee will be solely responsible for, and will pay, all income
and all other taxes, charges and contributions levied or required by
competent governmental authorities in respect of the Options and the Optioned
shares.
5.19 TIME OF THE ESSENCE.
Time will be of the essence of this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto on
the date first above written.
BIOLABS, INC.
by its duly authorized signatories:
Per: ____________________
Authorized Signatory
Per: ____________________
Authorized Signatory
SIGNED, SEALED AND DELIVERED BY )
in the presence of: )
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)
)
)
_______________________________ )
Name
______________________________ )
Address )
)
______________________________ ) ______________________
)
)
______________________________ )
Occupation
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