THIS OPTION AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER STATE OR FEDERAL SECURITIES LAWS. THIS OPTION AND THE
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT BE OFFERED OR SOLD,
PLEDGED OR OTHERWISE DISTRIBUTED, NOR MAY THE SHARES OF COMMON STOCK ISSUED UPON
EXERCISE HEREOF BE TRANSFERRED ON THE BOOKS OF THE COMPANY, EXCEPT IN A
TRANSACTION THAT (I) IN THE OPINION OF COUNSEL THAT IS SATISFACTORY TO THE
COMPANY, WOULD RESULT IN NO VIOLATION OF SAID REGISTRATION PROVISIONS, AND (II)
WOULD COMPLY WITH THE TRANSFER RESTRICTION PROVISIONS CONTAINED IN A CERTAIN
STOCKHOLDER AGREEMENT REFERENCED IN THIS AGREEMENT.
BIOFORCE NANOSCIENCES, INC.
2003 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
* * * * *
Option Holder: ________________________________________
Option Grant Date: ________________________________________
Exercise Price: $_____________ per share
Number of Shares subject to this Option: _____________________________________
Type of Option: |_| Incentive |_| Nonqualified Stock Option
Subject to the following vesting schedule:
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Number of Cumulative Total of
Vesting Option Shares Subject to Option Shares Subject to
Vesting Date Schedule Vested Purchase Right Vested Purchase Right
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================================================================================================================
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of the Option Grant
Date specified above, by and between BioForce Nanosciences, Inc., a Delaware
corporation (the "Company") and the Option Holder named above, is entered into
pursuant to the 2003 Stock Option Plan of the Company (as the same may be
amended, restated, supplemented and other modified from time to time, the
"Plan"). All capitalized terms not otherwise defined in the text of this
Agreement have the meanings ascribed to them in the Plan.
1) Grant of Options. Subject to the terms and conditions of the Plan and this
Agreement, the Company hereby grants to the Option Holder the option (this
"Option") to purchase from the Company the number of shares of Common
Stock set forth above (such shares of Common Stock are referred to as the
"Option Shares").
2) Option Exercise Price. The exercise price to be paid for the Option Shares
shall be as set forth above, which, with respect to Incentive Stock
Options, is not less than [100%][110%](1) of the fair market value of the
Option Shares on the Option Grant Date.
3) Vesting. The Option Holder may only exercise the right to purchase the
Option Shares to the extent such right is vested. The vesting schedule for
the Option Holder's purchase right is set forth above. The right to
purchase Option Shares shall only continue to vest while the Option Holder
is employed by the Company or otherwise engaged as an Officer, Director or
Consultant. If the Option Holder's services with the Company (or a
Subsidiary) terminate for any reason, the Option Holder's purchase rights
under this Agreement shall no longer continue to vest.
4) Minimum Exercise Amount. The minimum number of Option Shares that the
Option Holder may purchase at any time is [500] or such other number of
shares as the Plan Administrator determines from time to time, provided
that if the vested portion of this Option is less than such number of
Option Shares, this Option may be exercised with respect to all Option
Shares for which it is vested.
5) Expiration of Option. Subject to the other provisions in this Agreement
and the Plan that further limit or terminate the purchase rights of the
Option Holder, none of the Option Shares may be purchased after 10 years
from the Option Grant Date.
6) Exercise of Options.
a) Except as otherwise provided herein, this Option may only be
exercised by the Option Holder's delivery of an Exercise Notice
during the Option Period to the Company (attention: 2003 Stock
Option Plan Administrator), with cash payment in the amount of the
exercise price multiplied by the number of Option Shares being
purchased.
b) Upon fifteen (15) days advanced written notice by the Company to the
Option Holder of the Company's intent to consummate a Change in
Control, the Company shall have the right, exercisable in the
Company's sole discretion, to require that the Option Holder
exercise the Option Holder's right to purchase all the Options
Shares that the Option Holder has a vested right to purchase within
such fifteen-day period. If the Option Holder fails to exercise such
right as to all the Option Shares that the Option Holder has a
vested right to purchase within such fifteen-day period, then the
Option Period with respect to the remaining Option Shares not so
purchased shall immediately terminate.
c) If within thirty (30) days prior or one hundred eighty (180) days
after a Change in Control, the services of Option Holder are
terminated by the Company (for reasons other than for Cause) or are
terminated by the Option Holder for Good Reason (as defined below),
then the Option Holder shall have a vested right to purchase all of
the Option Shares hereunder. As used herein, "Good Reason" means any
of the following:
----------
(1) Use 110% for stockholders owning greater than 10% of the issued and
outstanding shares of stock.
-2-
i) A material reduction or negative change of the Option Holder's
duties and responsibilities (unless such reduction or change
is contemplated pursuant to a written agreement between the
Option Holder and the Company);
ii) A material change in the working conditions of the Option
Holder, including, without limitation, a significant
relocation (more than 200 miles) of the Option Holder's
principal workplace, without the consent of the Option Holder;
or
iii) A material change in the Company's principal business.
d) Upon approval of the Plan Administrator, an Option Holder may pay
for all or any portion of the aggregate exercise price for any
Option Shares in accordance with the procedures set forth in Section
5(e) of the Plan, which Section may be amended from time to time
without the consent of the Option Holder. Upon receipt of the
payment of the entire purchase price of the Option Shares so
purchased and compliance with all the terms of the Plan and this
Agreement, including, without limitation, the conditions of Section
13 hereof, certificates for such Option Shares shall be issued to
the Option Holder.
7) Termination of Option Holder's Services.
a) If the Option Holder ceases to be an Employee, Officer, Director or
Consultant of the Company for any reason other than death,
Disability, or for Cause, this Option may be exercised, in whole or
in part, but (i) only to the extent vested and exercisable on the
date of such termination by the Option Holder, and (ii) only to the
extent such Option is exercised within thirty (30) days after the
date of such termination, or within such additional time period
after termination as is approved by the Plan Administrator. If the
holder of an ISO exercises such option more than ninety (90) days
after termination of employment (other than by death or Disability),
such option shall cease to be an ISO and shall be treated as an
NQSO.
b) If the Option Holder ceases to be an Employee, Officer, Director or
Consultant of the Company by reason of the Option Holder's death or
Disability, this Option may be exercised, in whole or in part, but
only to the extent vested and exercisable on the date of such death
or Disability, within thirty (30) days after the date of death or
Disability and not thereafter, by the person or persons entitled to
do so under the Option Holder's will or, if the Option Holder fails
to make a testamentary disposition of this Option or dies intestate
or becomes subject to a Disability, by the Option Holder's legal
representative or representatives, except as limited by law and the
Code. If the holder of an ISO exercises such option more than ninety
(90) days after termination of employment (other than by death or
Disability), such option shall cease to be an ISO and shall be
treated as an NQSO.
c) If the Option Holder ceases to be an Employee, Officer, Director or
Consultant of the Company and the termination is for Cause, all of
the Option Holder's rights hereunder shall immediately terminate
(regardless of whether the purchase right is vested).
8) Option Holder's Rights as a Stockholder. The Option Holder shall not be
deemed for any purposes to be a stockholder of the Company solely by
reason of holding this Option and shall not have any stockholder
privileges with respect to any Option Shares, except to the extent that
this Option has been exercised with respect thereto and a stock
certificate issued therefore.
9) Withholding. The Company may require as a condition precedent to the
issuance or transfer of any Option Shares that the Option Holder make such
arrangements as the Plan Administrator may require for the satisfaction of
any federal, state or local withholding tax obligations that may arise. If
the amount so requested is not paid, the Company may refuse to issue or
permit the transfer of the Option Shares.
-3-
10) Nontransferability of Options. This Option and any of the Option Holder's
rights hereunder shall not be transferable by the Option Holder (other
than by will or the laws of descent and distribution in the event of the
Option Holder's death as provided in Section 7(b) hereof).
11) Compliance with Securities Law. As required by the Plan, the right to
purchase Option Shares under this Option may not be exercised unless, at
the time of exercise, the Option Shares to be issued qualify for exemption
from, or are registered pursuant to, applicable federal and state security
laws. In the event there is not then on file with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, an
effective registration statement, including a prospectus related to the
Option Shares subject to this Option, the Option Holder shall execute and
deliver to the Company prior to receipt by him or her of any of the Option
Shares under this Agreement, the Investment Representation Statement,
which form may be updated from time to time by the Company.
12) Company Adjustments. The existence of the purchase rights under this
Option shall not affect in any way the right or power of the Company or
its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issuance of bonds, debentures, preferred, or prior
preference stock ahead of or affecting the Common Stock or the rights
thereof, or dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
13) Stockholder Agreement. The Company may require as a condition precedent to
the issuance of any Option Shares that the Option Holder simultaneously
execute a counterpart of the Stockholder Agreement or a Joinder Agreement
to the Stockholder Agreement (in form satisfactory to the Company). The
Stockholder Agreement provides for, among other things, transfer
restrictions pertaining to the Option Shares and the right of the Company
to repurchase Option Shares upon the happening of certain events.
14) Legend. In addition to any other restrictive legend required by agreement
or by the Company, all certificates evidencing the Option Shares shall
bear the following legend:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, but have
been issued in reliance upon exemptions therefrom. The securities
may not be offered, sold, pledged or otherwise transferred without
registration under the Securities Act and applicable state
securities laws or receipt of an opinion of counsel satisfactory to
the Company that an exemption from registration is available or that
such transfer may otherwise lawfully be made."
15) Professional Advice. The acceptance and exercise of this Option and the
sale of the Options Shares may have consequences under federal and state
tax and securities laws, which may vary depending on the individual
circumstances of the Option Holder. Accordingly, the Option Holder
acknowledges that he has been advised to consult the Option Holder's
personal, legal and tax advisor in connection with this Agreement and the
acquisition, holding and disposition of the Option Shares. The Option
Holder acknowledges that neither the Company nor any of its officers,
directors, attorneys, or agents, have made any representations as to the
federal and state tax effects of the acceptance of this Option, the
exercise of this Option, or the vesting of the purchase rights under this
Option.
-4-
16) Interpretation. As a condition of the granting of this Option, the Option
Holder agrees for himself or herself and his or her legal representatives,
that any dispute or disagreement that may arise under or as a result of or
pursuant to this Agreement shall be determined by the Plan Administrator
in its sole discretion, and any interpretation by the Plan Administrator
of the terms of this Agreement shall be final, binding, and conclusive.
17) Notices. All notices and other communications necessary or contemplated
under this Agreement shall be in writing and shall be delivered in the
manner specified herein or, in the absence of such specification, shall be
deemed to have been duly given three (3) business days after mailing by
certified mail, when delivered by hand, upon confirmation of receipt by
telecopy, or one (1) day after sending by overnight delivery service, to
the respective addresses of the parties set forth below:
If to the Company:
BioForce Nanosciences, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxx, XX 00000
Facsimile (000) 000-0000
If to the Option Holder:
At the address on record with the Company
18) Prior Agreements. This Agreement constitutes the final and complete
understanding between the Option Holder and the Company regarding the
subject matter hereof and supersedes all prior agreements and
understandings (written or oral) concerning the granting of options to
purchase stock or other equity interests in the Company.
-5-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the Option Grant Date.
OPTION HOLDER
__________________________________________________
Signature
__________________________________________________
Name
__________________________________________________
Social Security Number
BIOFORCE NANOSCIENCES, INC.
By: __________________________________________________
Signature
__________________________________________________
Name
__________________________________________________
Title
__________________________________________________
Date Received
-6-
