AspenBio Pharma, Inc. Stock Option Agreement
Exhibit 10.14
AspenBio Pharma, Inc., a Colorado
corporation (the “Company”), desiring to provide to the person named below (the
“Optionee”) an opportunity for an investment in the Company and additional
Option to pursue the success of the Company, hereby grants to the Optionee, and
the Optionee hereby accepts, an incentive stock option (the “Option”) pursuant
to the Company’s 2002 Stock Incentive Plan, as amended (the “Plan”) to purchase
the number of shares as specified below (the “Option Shares”), during the term
ending at midnight (prevailing local time at the Company’s principal office) on
the expiration date of the Option specified below, at the option exercise price
specified below subject to and upon the following terms and
conditions:
1. Identifying
Provisions. As used in this Option, the following terms shall
have the following respective meanings:
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Optionee:
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[_______________]
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Date of
Grant:
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[_______________]
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Option
Shares:
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[_______________]
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Exercise
Price:
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[_______________]
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Expiration
Date:
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[_______________]
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Exercisability Schedule:
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Installment
(Number
of Option Shares)
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First
Date Exercisable
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Last Date Exercisable | ||
| [__________] | [_____] | [_____] | ||
| [__________] | [_____] | [_____] | ||
| [__________] | [_____] | [_____] |
2. Exercisability.
Each Installment of the Option may be
exercised only (a) on or after the date for the Installment shown in the column
on the Exercisability Schedule under the caption “First Date Exercisable” (the
Installment’s “Accrual Date”) in Section 1 and (b) on or before the date for the
installments shown in the column on the Exercisability Schedule under the
caption “Last Date Exercisable” (the Installment’s “Expiration Date”) in Section
1. No Installment may be exercised before its Accrual Date or after
its Expiration Date. An Installment which is not exercised on or
before its Expiration Date shall expire on the day after its Expiration
Date. Each installment of the Option shall be subject to earlier
expiration as provided in Section 5. In addition to the foregoing,
the Option may not be exercised unless and until the Plan is approved by the
Company’s shareholders. Additionally this stock option award is granted to you
conditioned upon the Company's receipt of the approval of the shareholders of
the Company of the amendment to the Plan to increase the number of shares
available for awards under the Plan within twelve months of your grant
date. If such approval is not received, this award shall be
terminated.
3. Exercise Of
Option.
(a) All
or part of the Option may be exercised by delivering to the CFO \ Treasurer of
the Company (i) a Notice And Agreement Of Exercise Of Option, substantially in
the form attached hereto as Exhibit A, specifying the number of Option Shares
with respect to which the Option is being exercised, and (ii) full payment for
these shares. Payment shall be made by certified or bank cashier’s
check or by a wire transfer of immediately available
funds. Notwithstanding the foregoing, no Option may be exercised
unless the purchase price for the Option Shares purchased is at least $2,000 or
unless the entire remaining Option is being exercised.
(b) Promptly
upon receipt of the Notice And Agreement Of Exercise Of Option together with the
full payment of the Option Price for the Option Shares being purchased, the
Company shall deliver to the Optionee a properly executed certificate or
certificates representing the Option Shares being purchased.
(c) During
the lifetime of the Optionee, the Options shall be exercisable only by the
Optionee; provided, that in the event of the legal disability of an Optionee,
the guardian or personal representative of the Optionee may exercise the
Options.
4. Withholding
Taxes. The Company may take such steps as it deems necessary
or appropriate for the withholding of any taxes which the Company is required by
any law or regulation or any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with the Option including,
but not limited to, the withholding of all or any portion of any payment owed by
the Company to the Optionee or the withholding of issuance of Option Shares to
be issued upon the exercise of the Option.
5. Expiration of
Installments. If the Optionee’s “Continuous Status as an
Employee or Consultant” as defined in the Plan is terminated for any reason at a
time when any Installment of the Option has not been exercised:
(a) Each
Installment which is not yet exercisable as of the date of Optionee’s
termination (the “Termination Date”) shall expire on the Termination Date;
and
(b) Each
Installment which is exercisable as of the Termination Date shall expire 90 days
after the Termination Date.
6. Securities Laws
Requirements. No Option Share shall be issued unless and
until, in the opinion of the Company, there has been full compliance with any
applicable registration requirements of the Securities Act of 1933, any
applicable listing requirements of any securities exchange on which stock of the
same class has been listed, and any other requirements of law or any regulatory
bodies having jurisdiction over such issuance and delivery. Pursuant
to the terms of the Notice And Agreement Of Exercise Of Option (Exhibit A) that
shall be delivered to the Company upon each exercise of the Option, the Optionee
shall acknowledge, represent, warrant and agree as follows:
(a) All
Option Shares shall be acquired solely for the account of the Optionee for
investment purposes only and with no view to their resale or other distribution
of any kind (Note: This provision will be applicable only
if the issuance of the Option Shares is not registered at the time of exercise
of the Options);
(b) No
Option Share shall be sold or otherwise distributed in violation of
the Securities Act of 1933 or any other applicable federal or state securities
laws;
(c) The
Optionee shall report all sales of Option Shares to the Company in writing on a
form prescribed by the Company; and
(d) If
and so long as the Optionee is subject to reporting requirements under Section
16(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), he shall (i)
be aware that any sale by him or his immediate family of shares of the Company's
common stock or any of the Option Shares within six months before or after any
transaction deemed to be a "purchase" of an equity security of the Company may
create liability for him under Section 16(b) of the Exchange Act, (ii) consult
with his counsel regarding the application of Section 16(b) of the Exchange Act
prior to any exercise of the Options, and prior to any sale of shares of the
Company's common stock or the Option Shares, (iii) furnish the Company with a
copy of each Form 4 and Form 5 filed by him, and (iv) timely file all reports
required under the federal securities laws.
(e) No
Option Shares may be sold, transferred or otherwise disposed of prior to six
months from the Date of Grant.
The restrictions described in Sections
6(a), (b), (c), (d), and (e) above, or notice thereof, may be placed on the
certificates representing the Option Shares purchased, and the Company may
refuse to issue the certificates or to transfer the shares on its books unless
it is satisfied that no violation of such restrictions will occur.
7. Transferability. The
Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, except by will or the laws of descent and
distribution. Except as provided in the preceding sentence, any
attempt to transfer the Option shall void the Option.
8. Adjustment By Stock Split,
Stock Dividend, Etc. If at any time the Company increases or
decreases the number of its outstanding shares of Common Stock, or changes in
any way the rights and privileges of such shares, by means of the payment of a
stock dividend or the making of any other distribution on such shares payable in
its Common Stock, or through a stock split or subdivision of shares, or a
consolidation or combination of shares, or through a reclassification or
recapitalization involving its Common Stock, the numbers, rights and privileges
of the shares of Common Stock included in the Option shall be increased,
decreased or changed in like manner as if such shares had been issued and
outstanding, fully paid and nonassessable, at the time of such occurrence, and
the Option Price shall be adjusted accordingly.
9. Common Stock To Be Received
Upon Exercise. Optionee understands that the Company is under
no obligation to register the issuance of the Option Shares, the resale of the
Option Shares, or the Option Shares, under the Securities Act of l933, as
amended (the "Securities Act"), and that in the absence of any such
registration, the Option Shares cannot be sold unless they are sold pursuant to
an exemption from registration under the Securities Act. The Company
is under no obligation to comply, or to assist the Optionee in complying, with
any exemption from such registration requirement, including supplying the
Optionee with any information necessary to permit routine sales of the
Option Shares under Rule l44 of the Securities and Exchange
Commission. Optionee also understands that with respect to Rule l44,
routine sales of securities made in reliance upon such Rule can be made only in
limited amounts in accordance with the terms and conditions of the Rule, and
that in cases in which the Rule is inapplicable, compliance with another
exemption under the Securities Act will be required. Thus, the Option
Shares will have to be held indefinitely in the absence of registration under
the Securities Act or an exemption from registration.
10. Privilege Of
Ownership. Optionee shall not have any of the rights of a
stockholder with respect to the shares covered by the Options except to the
extent that one or more certificates for such shares shall be delivered to him
upon exercise of the Options.
11. Notices. Any
notices and other communications required or permitted to be given under this
Agreement shall be in writing, shall be deemed to have been given to a party on
the date of service if delivered personally, if delivered to the address
designated below, or if delivered by facsimile to the number designated below,
or shall be deemed to have been given on the fifth day after mailing by
registered or certified mail, postage prepaid, if mailed to the party to whom
notice is to be given, and shall be addressed as follows:
(a) if
to the Company:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
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(b)
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if
to the Optionee:
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At
the address listed below his/her name on the last page of this
Agreement.
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Any party
may change its address for purposes of this Section 11 by giving the other
parties written notice of the new address in the manner set forth
above.
12. No Employment
Right. Nothing in this Agreement shall be considered to confer
on the Optionee any right to continue in the Company’s employ or to limit the
Company’s right to terminate the Optionee’s employment.
13. 2002 Stock Incentive
Plan. This Option is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan under
which this Option was granted, as the same shall have been amended from time to
time in accordance with the terms thereof. Pursuant to the Plan, the
Board of Directors of the Company, or its Committee established for such
purposes is vested with final authority to interpret and construe the Plan or
this Option, and is authorized to adopt rules and regulations for carrying out
the Plan. A copy of the Plan in its present form is available for
inspection during business hours by the Optionee at the Company’s principal
office.
14. General
Provisions. This instrument (a) contains the entire agreement
between the parties, (b) may not be amended nor may any rights hereunder be
waived except by an instrument in writing signed by the party sought to be
charged with such amendment or waiver, (c) shall be construed in accordance
with, and governed by, the laws of Colorado, and (d) shall be binding upon and
shall inure to the benefit of the parties and their respective personal
representatives and assigns, except as above set forth. All pronouns
contained herein and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural as the identity of the parties
hereto may require.
15. Effective
Date. This Agreement shall not become effective until the
Optionee accepts this Agreement by returning a copy to the Company completed and
signed below by the Optionee and, if the Optionee is married, by the Optionee’s
spouse. When the Optionee so accepts this Agreement, this Agreement
shall become effective retroactive to the Date of Grant without the necessity of
further action by either the Company or the Optionee.
EXHIBIT
A
NOTICE
AND AGREEMENT OF EXERCISE OF OPTION
I hereby exercise my AspenBio Pharma,
Inc. Option dated [_________] as to [________] shares of the common stock (the
"Option Shares") of AspenBio Pharma, Inc. (the "Company") at a purchase price of
$[______] per share. The total exercise price for these Option Shares
is $[________]. Enclosed is payment in the form of
[__________].
Enclosed are the documents and payment
specified in Section 3 of my Option Agreement.
I understand that no Option Shares will
be issued unless and until, in the opinion of the Company, there has been full
compliance with any applicable registration requirements of the Securities
Act of l933, as amended, any applicable listing requirements of any securities
exchange on which stock of the same class is then listed, and any other
requirements of law or any regulatory bodies having jurisdiction over such
issuance and delivery. I hereby acknowledge, represent, warrant and
agree, to and with the Company as follows:
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a.
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The
Option Shares I am purchasing are being acquired for my own account for
investment purposes only and with no view to their resale or other
distribution of any kind, and no other person (except, if I am married, my
spouse) will own any interest therein. (Note: This
provision to be included only if issuance of Option Shares is not
registered at the time of
exercise.)
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b.
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I
will not sell or dispose of my Option Shares in violation of the
Securities Act of 1933, as amended, or any other applicable federal or
state securities laws.
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c.
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I
will not sell, transfer, or otherwise dispose of any Option Shares prior
to six months from the Date of
Grant.
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d.
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I
will report all sales of Option Shares to the Company in writing on a form
prescribed by the Company.
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e.
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I
agree that the Company may, without liability for its good faith actions,
place legend restrictions upon my Option Shares and issue "stop transfer"
instructions requiring compliance with applicable securities laws and the
terms of my Option Agreement.
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f.
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If
and so long as I am subject to reporting requirements under Section
l6(a) of the Securities Exchange Act of l934, as amended (the "Exchange
Act"), I recognize that any sale by me or my immediate family of the
Company's common stock may create liability for me under Section l6(b) of
the Exchange Act ("Section l6(b)"). Therefore, I have consulted
with my counsel regarding the application of Section l6(b) to this
Option.
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g.
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I
will consult with my counsel regarding the application of Section
l6(b) before I sell any shares of the Company's common stock, including
the Option Shares, and I will furnish the Company with a copy of each Form
4 and Form 5 filed by me and will timely file all reports that I may be
required to file under the federal securities
laws.
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The number of Option Shares specified
above, are to be issued in the name or names set forth below in the left hand
column.
| (Print Your Name) | Signature | |
| Address | ||
| (Print Name of spouse if you wish joint registration) | ||
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| City, State and Zip Code |
Options
dated [____________________]
I accept this Stock Option Agreement
and agree to be bound by all of its terms. I acknowledge receipt of a
copy of the AspenBio Pharma, Inc. 2002 Stock Option Plan.
| o | I am not married. | |||
| o | I am married to | |||
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| (Optionee Signature) | ||||
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Address:
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Social
Security Number:
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I am the spouse of the
Advisor. I have read the Stock Option Agreement, and I understand
that the Option is not transferable. I agree to be bound by the Stock
Option Agreement insofar as I may have any interest in the Option as the
Advisor’s spouse.
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(Spouse
Signature)
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