EXHIBIT 10.34
[FORM OF NON-PLAN OPTION AGREEMENT]
SINOFRESH HEALTHCARE, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
[NAME OF OPTIONEE]
AGREEMENT
1. Grant of Option. SinoFresh Healthcare, Inc., a Florida corporation
(the "Company") hereby issues this option agreement to evidence an option (the
"Option") committed to __________________ ("Optionee") by the Company's
predecessor, SinoFresh HealthCare, Inc., a Delaware corporation (the
"Predecessor") as of September 1, 2003 (which date shall be deemed the "Date of
Grant") and which Option is assumed by the Company. The number of shares of
common stock subject to this Option and the per share exercise price reflect the
two-for-one exchange of the common stock of the Predecessor for the common stock
of the Company in respect of the acquisition of the Predecessor. This is an
Option to purchase up to __________________________ shares of the Company's
Common Stock, no par value (the "Stock"), at an exercise price per share equal
to One Dollar ($1.00) (the "Option Price"). This Option shall be subject to the
terms and conditions set forth herein. This Option is a nonqualified stock
option, and not an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
2. Exercise Schedule. This Option is exercisable immediately.
3. Method of Exercise. This Option shall be exercisable in whole or in
part by written notice which shall state the election to exercise this Option,
the number of shares of Stock in respect of which this Option is being
exercised, and such other representations and agreements as to the holder's
investment intent with respect to such shares of Stock as may be required by the
Company. Such written notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the President of the Company. The
written notice shall be accompanied by payment of the exercise price. This
Option shall be deemed to be exercised after (a) receipt by the Company of such
written notice accompanied by the exercise price, and (b) arrangements that are
satisfactory to the Board of Directors in its sole discretion have been made for
Optionee's payment to the Company of the amount that is necessary to be withheld
in accordance with applicable Federal or state withholding requirements. No
shares of Stock will be issued pursuant to this Option unless and until such
issuance and such exercise shall comply with all relevant provisions of
applicable law, including the requirements of any stock exchange upon which the
Stock then may be traded.
4. Method of Payment. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee: (a)
cash; (b) check; (c) with shares that have been held by the Optionee for at
least 6 months (or such other shares as the Company determines will not cause
the Company to recognize for financial accounting purposes a charge for
compensation expense); (d) subject to there being an effective Form S-8
registration
statement in place for this Option, pursuant to a "cashless exercise" procedure,
by delivery of a properly executed exercise notice together with such other
documentation, and subject to such guidelines, as the Company shall require to
effect an exercise of this Option and delivery to the Company by a licensed
broker acceptable to the Company of proceeds from the sale of Stock or a margin
loan sufficient to pay the Option Price and any applicable income or employment
taxes; or (d) such other consideration or in such other manner as may be
determined by the Board of Directors in its absolute discretion.
This Option may also be exercised by a cashless exercise procedure
pursuant to a formula ("Formula Cashless Exercise"), or a combination of cash
and Formula Cashless Exercise. In the event of a Formula Cashless Exercise, the
Optionee shall surrender this Option to the Company with a written notice of the
Optionee's intention to effect a cashless exercise, including a calculation of
the number of shares of common stock to be issued upon such exercise in
accordance with the terms hereof; and, in lieu of paying the Option Price in
cash, the Optionee shall surrender this Option for that number of shares of
common stock determined by multiplying the number of shares of common stock to
which it would otherwise be entitled by a fraction, the numerator of which shall
be the difference between (i) the average Market Price per share of the common
stock for the five (5) Trading Days immediately prior to the date of delivery of
the cashless exercise notice to the Company (the "Cashless Exercise Market
Price") and (ii) the Option Price, and the denominator of which shall be the
Cashless Exercise Market Price. As used herein, "Market Price" means, as of any
Trading Day, (i) the closing sale price for the shares of common stock on the
NASD OTC Bulletin Board ("OTCBB") as reported by Bloomberg, or (ii) if the OTCBB
is not the principal trading market for the shares of Common Stock, the closing
sale price on the principal trading market for the common stock as reported by
Bloomberg, or (iii) if market value cannot be calculated as of such date on any
of the foregoing basis, the Market Price shall be the fair market value as
reasonably determined in good faith by the Company's Board of Directors. As used
herein, a "Trading Day" shall mean any day on which the common Stock is traded
for any period on the OTCBB, or on the principal securities exchange or other
securities market on which the common stock is then being traded."
5. Termination of Option.
(a) This Option shall terminate and become null and void on the
fifth (5th) anniversary of the Date of Grant.
(b) To the extent not previously exercised, (i) this Option shall
terminate immediately in the event of (1) the liquidation or dissolution of the
Company, or (2) any reorganization, merger, consolidation or other form of
corporate transaction in which the Company does not survive, or the Company's
outstanding shares are converted into or exchanged for securities issued by
another entity, or an affiliate of such successor or acquiring entity, unless
the successor or acquiring entity, or a parent or subsidiary of such successor
or acquiring entity, assumes this Option or substitutes an equivalent option or
right pursuant to Section 6 below, and (ii) the Board of Directors in its sole
discretion may by written notice ("cancellation notice") cancel, effective upon
the consummation of a corporate transaction described in Section 5(b)(A) below
in which the Company does survive, this Option (or portion thereof) that remains
unexercised on such date. The Board of Directors shall give written notice of
any proposed transaction referred to in this Section 5(b) a reasonable period of
time prior to
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the closing date for such transaction (which notice may be given either before
or after approval of such transaction), in order that the Optionee may have a
reasonable period of time prior to the closing date of such transaction within
which to exercise this Option if and to the extent that it then is exercisable.
The Optionee may condition his exercise of this Option upon the consummation of
a transaction referred to in this Section 5(b).
(A) As used in Section 5(b) above, a corporate transaction
in which the Company does survive shall mean the approval by the shareholders of
the Company of a reorganization, merger, consolidation or other form of
corporate transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do not, immediately
thereafter, own more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or a liquidation or
dissolution of the Company or the sale of all or substantially all of the assets
of the Company (unless such reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale (any such event being
referred to as a "Corporate Transaction") is subsequently abandoned).
(c) Notwithstanding anything to the contrary contained in this
Agreement, the merger of the Company with and into SinoFresh Acquisition Corp.,
a Florida corporation, shall not constitute a corporate transaction subject to
this Section 5.
6. Stock Dividend or Reorganization.
(a) If (i) the Company shall at any time be involved in a
transaction described in Section 424(a) of the Code (or any successor provision)
or any "corporate transaction" described in the regulations thereunder; (ii) the
Company shall declare a dividend payable in, or shall subdivide or combine, its
Common Stock or (iii) any other event with substantially the same effect shall
occur, the Board of Directors shall, subject to applicable law, with respect to
this Option, proportionately adjust the number of shares of Common Stock subject
to this Option and/or the exercise price per share so as to preserve the rights
of the Optionee substantially proportionate to the rights of the Optionee prior
to such event.
(b) In the event that the presently authorized capital stock of
the Company is changed into the same number of shares with a different par
value, or without par value, the stock resulting from any such change shall be
deemed to be Common Stock within the meaning of this Option, and this Option
shall apply to the same number of shares of such new stock as it applied to old
shares immediately prior to such change.
(c) If the Company shall at any time declare an extraordinary
dividend with respect to the Common Stock, whether payable in cash or other
property, the Board of Directors may, subject to applicable law, in the exercise
of its sole discretion and with respect to this Option, proportionately adjust
the number of shares of Common Stock subject to this Option and/or adjust the
exercise price per share so as to preserve the rights of the Optionee
substantially proportionate to the rights of the Optionee prior to such event.
(d) The foregoing adjustments in the shares subject to this Option
shall be
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made by the Board of Directors, or by the applicable terms of any assumption or
substitution document.
(e) The grant of this Option shall not affect in any way the right
or power of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure, to merge, consolidate or
dissolve, to liquidate or to sell or transfer all or any part of its business or
assets.
7. Transferability. Unless otherwise determined by the Board of
Directors, this Option is not transferable otherwise than by will or under the
applicable laws of descent and distribution, and during the lifetime of the
Optionee this Option shall be exercisable only by the Optionee or the Optionee's
guardian or legal representative. In addition, this Option shall not be
assigned, negotiated, pledged or hypothecated in any way (whether by operation
of law or otherwise), and this Option shall not be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, negotiate,
pledge or hypothecate this Option, or in the event of any levy upon this Option
by reason of any execution, attachment or similar process contrary to the
provisions hereof, this Option shall immediately become null and void. The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
8. No Rights of Stockholders. Neither the Optionee nor any personal
representative (or beneficiary) shall be, or shall have any of the rights and
privileges of, a stockholder of the Company with respect to any shares of Stock
purchasable or issuable upon the exercise of this Option, in whole or in part,
prior to the date of exercise of this Option.
9. No Right to Employment. Neither this Option nor this Agreement shall
confer upon the Optionee any right to employment or service with the Company.
10. Law Governing. This Agreement shall be governed in accordance with
and governed by the internal laws of the State of Florida.
11. Notices. Any notice under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and addressed,
in the case of the Company, to the Company's President at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or if the Company should move its principal office, to
such principal office, and, in the case of the Optionee, to the Optionee's last
permanent address as shown on the Company's records, subject to the right of
either party to designate some other address at any time hereafter in a notice
satisfying the requirements of this Section.
12. Tax Consequences. Set forth below is a brief summary as of the date
of this Option of some of the federal tax consequences of exercise of this
Option and disposition of the Stock. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND
THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A
TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES OF STOCK.
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(a) Exercise of Option. There may be a regular federal income tax
liability upon the exercise of this Option. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the fair market value of the Stock on the date of
exercise over the Option Price. If Optionee is an employee, the Company will be
required to withhold from Optionee's compensation or collect from Optionee and
pay to the applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(b) Disposition of Stock. If the Stock is held for at least one
year, any gain realized on disposition of the Stock will be treated as long-term
capital gain for federal income tax purposes.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
COMPANY:
SinoFresh Healthcare, Inc., a Florida
corporation
By:____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman and CEO
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Optionee has reviewed this Option in its entirety, has had an opportunity
to obtain the advice of counsel prior to executing this Option, and fully
understands all provisions of this Option.
OPTIONEE:
_____________________________________
Name: [NAME OF OPTIONEE]
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