Modigene Inc.
Exhibit
10.14
2007
EQUITY
INCENTIVE
PLAN
NON-QUALIFIED
STOCK
OPTION
AGREEMENT
The
Participant specified below has been granted this Option by Modigene
Inc.,
a
Nevada corporation (the “Company”)
under
the terms of the Modigene
Inc. 2007 Equity Incentive Plan
(the
“Plan”).
The Option shall be subject to the following terms and conditions (the
“Option
Terms”):
Section
1. Terms
of Award.
The
following words and phrases relating to the grant of the Option shall have
the
following meanings:
(a) The
“Participant”
is
.
(b) The
“Date
of Grant”
is
.
(c) The
number of “Covered
Shares”
shall
be [_____] shares of Company Stock.
(d) The
“Exercise
Price”
is
[$_____] per share.
Except
where the context clearly implies to the contrary, and unless otherwise defined
herein, any capitalized term in this Agreement shall have the meaning ascribed
to that term under the Plan.
Section
2. Non-Qualified
Stock Option.
The
Option is not intended to constitute an “incentive stock option” as that term is
used in Code Section 422.
Section
3. Date
of Exercise.
Subject
to the limitations of the
Option Terms,
each
installment of Covered Shares of the Option (“Installment”)
shall
become vested and exercisable on and after the “Vesting
Date”
for
such Installment as described in the following schedule (but only if the
Participant’s Date of Termination has not occurred before the Vesting
Date):
|
INSTALLMENT
|
VESTING
DATE
APPLICABLE
TO INSTALLMENT
|
|
|
1/3
of Covered Shares
|
1st
Anniversary of the Date of Grant
|
|
|
1/3
of Covered Shares
|
2nd
Anniversary of the Date of Grant
|
|
|
1/3
of Covered Shares
|
3rd
Anniversary of the Date of Grant
|
The
Option may be exercised on or after the Date of Termination only as to that
portion of Covered Shares for which it was exercisable immediately prior
to the
Date of Termination, or became exercisable on the Date of
Termination.
For
purposes of this Agreement, “Date
of Termination”
shall
mean the first day occurring on or after the Date of Grant on which the
Participant is not employed by, or providing services to, the Company or
an
Affiliate, regardless of the reason for termination of employment or service;
provided
that a
termination of employment, or separation from service, shall not be deemed
to
occur by reason of a transfer of the Participant between the Company and
an
Affiliate or any other related entity; provided
further
that the
Participant’s employment, or service, shall be treated as continuing intact
while the Participant is on military or sick leave or other bona fide leave
of
absence if such leave does not exceed 90 days or, if longer, so long as the
Participant’s right to reemployment is guaranteed either by statute or
contract.
Notwithstanding
the foregoing provisions of this Section
3,
the
Option shall become fully and immediately vested upon a Change of Control
that
occurs on or before the Participant’s Date of Termination.
Section
4. Expiration.
Subject
to earlier termination of the Option as otherwise provided in the Plan, the
Option shall not be exercisable after the Company’s close of business on the
last business day that occurs prior to the Expiration Date. The
“Expiration
Date”
shall
be the earliest to occur of:
(a) the
ten-year anniversary of the Date of Grant;
(b) the
Date
of Termination, if the Participant’s employment with, or service to, the Company
or an Affiliate is terminated for Cause or as a result of a voluntary
termination of employment or service by the Participant;
(c) the
three-month anniversary of the Date of Termination, if the Participant’s
employment with, or service to, the Company or an Affiliate is terminated
for
any reason other than Cause or as a result of a voluntary termination of
employment or service by the Participant; provided,
however, if
the
Participant dies prior to the expiration of such three-month period, the
Participant’s Beneficiary may exercise the Option for one year following the
date of the Participant’s death unless the Expiration Date occurs sooner
pursuant to subsection 4(a) above; or
(d) the
one-year anniversary of the Date of Termination, if the Participant’s employment
with, or service to, the Company or an Affiliate is terminated as a result
of
Disability or death.
Section
5. Method
of Option Exercise.
Subject
to the Option Terms and the Plan, the Option may be exercised in whole or
in
part by filing a written notice with the Secretary of the Company at its
corporate headquarters prior to the Company’s close of business on the last
business day that occurs prior to the Expiration Date. Such notice shall
specify the number of Covered Shares which the Participant elects to purchase,
and shall be accompanied by, or followed within ten days of delivery thereof,
payment of the Exercise Price for such Covered Shares indicated by the
Participant’s election. Payment may be by cash or, subject to limitations
imposed by applicable law, by such means as the Committee from time to time
may
permit, including, (i) by delivery or attestation of Mature Shares (valued
at
their Fair Market Value); (ii) by delivery of a properly executed exercise
notice with irrevocable instructions to a broker to deliver to the Company
the
amount necessary to pay the exercise price from the sale; (iii) by delivery
of
any other consideration that the Committee deems appropriate and in compliance
with applicable law; or (iv) by delivery of any combination of the foregoing,
as
the Committee may allow from time-to-time. Unless
prior to the exercise of the Option the shares issuable upon such exercise
have
been registered with the Commission pursuant to the Securities Act, the notice
of exercise shall be accompanied by a representation or agreement of the
individual or entity exercising the Option to the Company to the effect that
such shares are being acquired for investment purposes and not with a view
to
the distribution thereof, and such other documentation as may be required
by the
Company, unless in the opinion of counsel to the Company such representation,
agreement or documentation is not necessary to comply with any such
act.
The
Company shall not be obligated to deliver any Company Stock until the shares
have been listed on each securities exchange or market on which the Company
Stock may then be listed or until there has been qualification under or
compliance with such federal or state laws, rules or regulations as the Company
may deem applicable. The
Option shall not be exercisable if and to the extent the Company determines
that
such exercise would violate applicable state or federal securities laws or
the
rules and regulations of any securities exchange on which the Company Stock
is
traded and shall not be exercisable during any blackout period established
by
the Company from time to time.
2
Section
6. Withholding.
The
exercise of the Option is subject to withholding of all applicable taxes.
At the election of the Participant, and subject to such rules and limitations
as
may be established by the Committee from time to time, such withholding
obligations may be satisfied (i) through cash payment by the Participant;
(ii) through authorized additional withholding from cash compensation otherwise
due the Participant; or (iii) subject to the Committee’s discretion, through the
surrender of Company Stock to which the Participant is otherwise entitled
under
the Plan; provided,
however, that
such
shares under this clause (iii) may be used to satisfy not more than the
Company’s minimum statutory withholding obligation (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes,
that are applicable to such supplemental taxable income).
Section
7. Transferability.
The
Option is not transferable by the Participant other than by will or by the
laws
of descent and distribution or pursuant to a qualified domestic relations
order,
as defined in the Code or Title I of the Employee Retirement Income Security
Act
of 1974, as amended, and during the Participant’s life, may be exercised only by
the Participant (or an alternate payee under a qualified domestic relations
order). It may not be assigned, transferred (except as aforesaid), pledged
or hypothecated by the Participant in any way whether by operation of law
or
otherwise, and shall not be subject to execution, attachment or similar
process. Any attempt at assignment, transfer, pledge or hypothecation, or
other disposition of this Option contrary to the provisions hereof, and the
levy
of any attachment or similar process upon this option, shall be null and
void
and without effect.
Section
8. Participant’s
Representations and Shareholders Agreement.
In
the
event the Covered Shares have not been registered under the Securities Act
at
the time this Option is exercised, the Participant shall, if required by
the
Company, concurrently with the exercise of all or any portion of this Option
(i) deliver to the Company his or her Investment Representation Statement
in the form attached hereto as Exhibit A; and (ii) agree to execute and
become a party to the Shareholders Agreement, as may be in effect on such
date.
3
Section
9. Heirs
and Successors.
The
Option Terms shall be binding upon, and inure to the benefit of, the Company
and
its successors and assigns, and upon any person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all
of the
Company’s assets and business. If any rights of the Participant or benefits
distributable to the Participant under this Agreement have not been exercised
or
distributed, respectively, at the time of the Participant’s death, such rights
shall be exercisable by the Designated Beneficiary, and such benefits shall
be
distributed to the Designated Beneficiary, in accordance with the provisions
of
this Agreement and the Plan. The “Designated
Beneficiary”
shall
be the beneficiary or beneficiaries designated by the Participant in a writing
filed with the Committee in such form and at such time as the Committee shall
require. If a deceased Participant fails to designate a beneficiary, or if
the
Designated Beneficiary does not survive the Participant, any rights that
would
have been exercisable by the Participant and any benefits distributable to
the
Participant shall be exercised by or distributed to the legal representative
of
the estate of the Participant. If a deceased Participant designates a
beneficiary and the Designated Beneficiary survives the Participant but dies
before the Designated Beneficiary’s exercise of all rights under this Agreement
or before the complete distribution of benefits to the Designated Beneficiary
under this Agreement, then any rights that would have been exercisable by
the
Designated Beneficiary shall be exercised by the legal representative of
the
estate of the Designated Beneficiary, and any benefits distributable to the
Designated Beneficiary shall be distributed to the legal representative of
the
estate of the Designated Beneficiary.
Section
10. Administration.
The
authority to manage and control the operation and administration of the Option
Terms and the Plan shall be vested in the Committee, and the Committee shall
have all powers with respect to the Option Terms as it has with respect to
the
Plan. Any interpretation of the Option Terms or the Plan by the Committee
and
any decision made by it with respect to the Option Terms or the Plan are
final
and binding on all persons.
Section
11. Plan
Governs.
Notwithstanding
anything in the Option Terms to the contrary, the Option Terms shall be subject
to the terms of the Plan, a copy of which may be obtained by the Participant
from the office of the Secretary of the Company; and the Option Terms are
subject to all interpretations, amendments, rules and regulations promulgated
by
the Committee from time to time pursuant to the Plan.
Section
12. Not
An Employment Contract.
The
Option will not confer on the Participant any right with respect to continuance
of employment or other service with the Company or any Affiliate, nor will
it
interfere in any way with any right the Company or any Affiliate would otherwise
have to terminate or modify the terms of such Participant’s employment or other
service at any time.
Section
13. No
Rights As Shareholder.
The
Participant shall not have any rights of a shareholder with respect to the
Shares subject to the Option, until a stock certificate has been duly issued
following exercise of the Option as provided herein.
Section
14. Amendment.
The
Option Terms may be amended in accordance with the provisions of the Plan,
and
may otherwise be amended by written agreement of the Participant and the
Company
without the consent of any other person.
4
Section
16. Section
409A Amendment.
The
Committee reserves the right (including the right to delegate such right)
to
unilaterally amend this Agreement without the consent of the Participant
to
maintain compliance with Code Section 409A. Participant’s acceptance of this
Award constitutes acknowledgement and consent to such rights of the
Committee.
IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be executed on its behalf by a duly
authorized officer and Participant has executed this Agreement.
| PARTICIPANT | MODIGENE INC. | ||
| By: | |||
|
Signature
|
|
||
| Its: | |||
|
Print
Name
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5
EXHIBIT
A
INVESTMENT
REPRESENTATION STATEMENT
[This
form is to be completed at the time option is exercised,
unless
stock is publicly traded at that time.]
Effective
as of ___________________ [insert
date of option exercise]
(the
“Effective Date”), the undersigned (“Participant”) has elected to purchase
__________ shares of the common stock (the “Shares”) of Modigene Inc. (the
“Company”) under and pursuant to the Modigene Inc. 2007 Equity Incentive Plan
(the “Plan”) and the Non-Qualified Stock Option Agreement dated ______________
[insert
date of grant of option]
(the
“Option Terms”). The Participant hereby makes the following certifications,
representations, warranties and agreements with respect to the purchase of
the
Shares:
The
Participant acknowledges that he or she is aware of the Company’s business
affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to acquire the
Shares. The Participant represents and warrants to the Company that he or
she is
acquiring these Shares for investment for the Participant’s own account only and
not with a view to, or for resale in connection with, any “distribution” thereof
within the meaning of the Securities Act of 1933, as amended (the “Securities
Act”).
The
Participant further acknowledges that the Shares have not been registered
under
the Securities Act, are deemed to constitute “restricted securities” under Rule
701 and Rule 144 promulgated under the Securities Act and must be held
indefinitely unless they are subsequently registered under the Securities
Act
and qualified under any applicable state securities laws or an exemption
from
such registration and qualification is available. The Participant further
acknowledges that the Company is under no obligation to register the
Shares.
The
Participant further acknowledges that he or she is familiar with the provisions
of Rule 144, which, in substance, permits limited public resale of “restricted
securities” acquired, directly or indirectly from the issuer thereof, in a
non-public offering subject to the satisfaction of certain conditions. The
Participant further acknowledges that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will
be
required in order to resell the Shares. The Participant understands that
no
assurances can be given that any such registration will be made or any such
exemption will be available in such event.
The
Participant further acknowledges and understands that all certificates
representing any of the Shares shall have endorsed thereon appropriate legends
reflecting the foregoing limitations, as well as any legends reflecting any
other restrictions pursuant to the Company’s Articles of Incorporation, Bylaws,
the Option, the Plan and/or applicable securities laws.
The
Participant further agrees that, if so requested by the Company or any
representative of the underwriters (the “Managing Underwriter”) in connection
with any registration of the offering of any securities of the Company under
the
Securities Act, the Participant shall not sell or otherwise transfer any
Shares
or other securities of the Company during the 180-day period, or such other
period as may be requested in writing by the Managing Underwriter and agreed
to
in writing by the Company (the “Market Standoff Period”), following the
effective date of a registration statement of the Company filed under the
Securities Act. Such restriction shall apply only to the first registration
statement of the Company to become effective under the Securities Act that
includes securities to be sold on behalf of the Company to the public in
an
underwritten public offering under the Securities Act. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such Market Standoff Period.
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The
Participant further acknowledges and agrees that the Company shall not be
required (i) to transfer on its books any Shares that have been sold or
otherwise transferred in violation of any of the representations, warranties,
agreements or other provisions contained in this Notice of Exercise or (ii)
to
treat as owner of such Shares or to accord the right to vote or pay dividends
to
any purchaser or other transferee to whom such Shares shall have been so
transferred.
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Submitted
by Participant:
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Signature
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