TENAX THERAPEUTICS, INC. AWARD AGREEMENT (Awarding Nonqualified Stock Option to Non-Employee Directors)
Exhibit 10.2
2016 STOCK INCENTIVE PLAN
(Awarding Nonqualified Stock Option to Non-Employee
Directors)
THIS
AWARD AGREEMENT (this “Agreement”) is made by and
between Tenax Therapeutics, Inc., a Delaware corporation (the
“Company”), and [Insert Name of Director] (the
“Optionee”) pursuant to the provisions of the Tenax
Therapeutics, Inc. 2016 Stock Incentive Plan (the
“Plan”), which is incorporated herein by reference.
Capitalized terms not defined in this Agreement shall have the
meanings given to them in the Plan.
WITNESSETH:
WHEREAS, the
Optionee is providing, or has agreed to provide, services to the
Company as a Director; and
WHEREAS, the
Company considers it desirable and in its best interests that the
Optionee be given a personal stake in the Company’s growth,
development and financial success through the grant of an option to
purchase shares of the $0.0001 par value common stock of the
Company (the “Shares”).
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as
follows:
1. Grant of Option. Effective as
of [Insert Grant
Date] (the “Date of Grant”), the Company
hereby grants to the Optionee, an option (the “Option”)
to purchase [Insert Number of
Shares] Shares at the Option Price per Share of
[Insert Option
Price] (the “Option Price”), subject to the
terms and conditions of the Plan and this Agreement. The future
value of such Shares is unknown and cannot be predicted with
certainty. If such Shares do not increase in value, the Option will
have no value.
2. Term of Option. Subject to
earlier termination under Section 4 hereof, the term of the
Option shall be ten (10) years (the
“Term”).
1. Vesting Schedule. The Option
shall vest and become exercisable as to [Insert Vesting Schedule].
In no
event will any portion of the Option that is not vested and
exercisable at the time of the termination of the Optionee’s
service relationship become vested and exercisable following such
termination.
3. Termination of Option. Except
as otherwise provided herein, the Option shall terminate on the
earliest to occur of the following:
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(a)
The expiration of
the Term of the Option.
(b)
The 91st day after
termination of the Optionee’s service relationship for any
reason other than one specified in (c) or
(d) below.
(c)
The 366th day after
termination of the Optionee’s service relationship as a
result of the Optionee’s death, or a disability or retirement
that is approved by the Committee for this purpose.
(d)
Termination of the
Optionee’s service relationship by the Company for reasons
that would constitute Cause if the Optionee were an
employee.
4. Exercise of Option. The vested portion of the Option
may be exercised in whole or in part by delivery of an exercise
notice in the form attached as Exhibit A (the
“Exercise Notice”) which shall state the election to
exercise the Option and set forth the number of Shares with respect
to which the Option is being exercised. The Exercise Notice shall
be accompanied by payment of an amount equal to the aggregate
Option Price as to all exercised Shares. Payment of such amount
shall be by any of the following methods, or combination thereof,
at the election of the Optionee: (a) in cash or its
equivalent; (b) by tendering (either by actual delivery or
attestation) previously acquired Shares having an aggregate Fair
Market Value at the time of exercise equal to the Option Price;
(c) by a cashless (broker-assisted) exercise; or (d) any
other method approved or accepted by the Committee in its sole
discretion. The Option
shall be deemed to be exercised upon receipt by the Company of such
fully executed Exercise Notice accompanied by the aggregate Option
Price.
5. Non-Transferability of Option.
This Option may not be transferred in any manner otherwise than by
will or the laws of descent and distribution and, during the
Optionee’s lifetime, may only be exercised by the
Optionee.
6. Restrictions on Shares. This
Agreement shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
stock exchange as may be required. The Optionee agrees to take all
steps the Committee determines are necessary to comply with all
applicable provisions of federal and state securities law in
exercising his or her rights under this Agreement. The Committee
may impose such restrictions on any Shares acquired pursuant to the
exercise of this Option as it deems advisable, including, without
limitation, minimum holding period requirements, restrictions under
applicable federal securities laws, under the requirements of any
stock exchange or market upon which such Shares are then listed
and/or traded, or under any blue sky or state securities laws
as may be applicable to such Shares.
7. Forfeiture. Where an Optionee engages in certain competitive
activity or is terminated by the Company for Cause, his or her
Option and Shares are subject to forfeiture conditions under
Section 11.3 of the Plan. Upon the occurrence of any of the
events set forth in Section 11.3 of the Plan, in addition to the
remedies provided in Section 11.3, the Company shall be entitled to
issue a stop transfer order and other documents implementing the
forfeiture to its transfer agent, the depository or any of its
nominees, and any other person with respect to this Option and the
Shares.
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8. Successors and Assigns. The
Company may assign any of its rights under this Agreement to single
or multiple assignees, and this Agreement shall inure to the
benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, the terms and
conditions of the Plan and this Agreement shall be binding upon the
Optionee and his or her heirs, executors, administrators,
successors and assigns.
9. Interpretation. Any dispute
regarding the interpretation of this Agreement shall be submitted
by the Optionee or by the Company forthwith to the Committee, which
shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Committee shall be final and
binding on all parties.
10. Tax Consequences. The exercise
of this Option and the subsequent disposition of the Shares may
cause the Optionee to be subject to federal, state and/or foreign
taxation. The Optionee should consult a tax advisor before
exercising this Option or disposing of the Shares purchased
hereunder.
11. Acknowledgement. The Optionee
acknowledges and agrees: (i) that the Plan is discretionary in
nature and may be suspended or terminated by the Company at any
time; (ii) that the grant of the Option does not create any
contractual or other right to receive future grants of options or
any right to continue the Optionee’s service relationship
with the Company (for the vesting period or otherwise);
(iii) that the Optionee remains subject to discharge from such
relationship to the same extent as if the Option had not been
granted; (iv) that all determinations with respect to any such
future grants, including, but not limited to, when and on what
terms they shall be made, will be at the sole discretion of the
Committee; (v) that participation in the Plan is voluntary;
(vi) that the value of the Option is an extraordinary item of
compensation that is outside the scope of the Optionee’s
employment contract if any; and (vii) that the Option is not
part of normal or expected compensation for purposes of calculating
any severance, resignation, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or
similar benefits.
12. Optionee Data Privacy. As a
condition of the grant of this Option, the Optionee consents to the
collection, use and transfer of personal data as described in this
paragraph. The Optionee understands that the Company and its
Affiliates hold certain personal information about the Optionee,
including but not limited to the Optionee’s name, home
address and telephone number, date of birth, social security
number, salary, nationality, job title, shares of common stock or
directorships held in the Company, details of all Options or other
entitlement to shares of common stock awarded, cancelled,
exercised, vested, unvested or outstanding in the
Optionee’s
favor for the purpose of managing and administering the Plan
(“Data”). The Optionee further understands that the
Company and/or its Affiliates will transfer Data amongst themselves
as necessary for the purposes of implementation, administration and
management of the Optionee’s participation in the Plan, and
that the Company and/or any of its Affiliates may each further
transfer Data to any third parties assisting the Company in the
implementation, administration and management of the Plans. The
Optionee understands that these recipients may be located in the
Optionee’s country of residence or elsewhere. The Optionee
authorizes them to receive, possess, use, retain and transfer Data
in electronic or other form, for the purposes of implementing,
administering and managing the Optionee’s participation in
the Plan, including any requisite transfer of such Data as may be
required for the administration of the Plan and/or the subsequent
holding shares of common stock on the Optionee’s behalf to a
broker or other third party with whom the shares acquired on
exercise may be deposited. The Optionee understands that the
Optionee may, at any time, view the Data, require any necessary
amendments to it or withdraw the consent herein in writing by
contacting the local human resources representative.
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13. Confidentiality. The Optionee
agrees not to disclose the terms of this offer to anyone other than
the members of the Optionee’s immediately family or the
Optionee’s counsel or financial advisors and agrees to advise
such persons of the confidential nature of this offer.
14. Entire Agreement; Governing
Law. The Plan is incorporated herein by reference. The Plan
and this Agreement constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and
the Optionee with respect to the subject matter hereof, and may not
be modified adversely to the Optionee’s interest except by
means of a writing signed by the Company and Optionee. This
Agreement is governed by the internal substantive laws but not the
choice of law rules of Delaware.
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OPTIONEE
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Signature:
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By:
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Name:
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Name:
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Title:
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Exhibit A
FORM OF
EXERCISE NOTICE FOR 2016 STOCK INCENTIVE PLAN1
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Attention: Stock
Plan Administrator
1. Exercise of Option. Effective
as of today, ,
20 , the
undersigned (the “Optionee”) hereby elects to exercise
the Optionee’s option (the “Option”) to
purchase shares
of the Common Stock (the “Shares”) of Tenax
Therapeutics, Inc. . (the “Company”) under and pursuant
to the Tenax Therapeutics, Inc. 2016 Stock Incentive Plan (the
“Plan”) and the Award Agreement with a grant date
of ,
20 (the
“Award”). The Grant Number of the Option
is ,
and the per share exercise price is $ .
2. Delivery of Payment. The
Optionee herewith delivers to the Company the aggregate exercise
price of the Option, as set forth in the Award, by means
of (check
one):
☐
a check
in U.S. dollars made payable to Tenax Therapeutics, Inc. or bank
transfer;
or
☐
(i) a
share certificate (or certificates) representing previously
acquired shares and (ii) a check in U.S. Dollars made payable to
Tenax Therapeutics, Inc. or bank transfer that, in combination,
have an aggregate value (the Fair Market Value of the shares
delivered plus the check or bank transfer amount) equal to the
aggregate exercise price of the Option.
3. Representations of Optionee.
The Optionee acknowledges that the Optionee has received, read and
understood the Plan and the Award and agrees to abide by and be
bound by their terms and conditions. In making the decision to
exercise the option(s) the Optionee has relied upon his or her own
independent investigations or those made by his or her
representatives, if any (including professional, financial, tax,
legal and other advisors). The Optionee (and his or her
representatives, if any) has had an opportunity to review
information with respect to the Company, desires no further
additional information concerning the Company or its operations,
and deems such information reviewed adequate to evaluate the merits
and risks of the Optionee’s investment in the
Company.
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The
Optionee acknowledges that the Company is relying upon each of the
above representations in connection with the exercise of the option
and the issuance of the underlying Shares.
4. Rights as Shareholder. Until
the issuance of the Shares (as evidenced by the appropriate entry
on the books of the Company or of a duly authorized transfer agent
of the Company), no right to vote or receive dividends or any other
rights as a shareholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Shares shall be
issued to the Optionee as soon as practicable after the Option is
exercised. No adjustment shall be made for a dividend or other
right for which the record date is prior to the date of issuance
except as provided in the Plan.
5. Tax Consultation and
Withholding. The Optionee understands that the Optionee may
suffer adverse tax consequences as a result of the Optionee’s
purchase or disposition of the Shares. The Optionee represents that
the Optionee has consulted with any tax consultants the Optionee
deems advisable in connection with the purchase or disposition of
the Shares and that the Optionee is not relying on the Company for
any tax advice.
6. Restrictive Legends. The
Optionee understands and agrees that the Company shall cause the
legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing ownership
of the Shares together with any other legends that may be required
by the Company or by state or federal securities laws:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TENAX
THERAPEUTICS, INC. 2016 STOCK INCENTIVE PLAN, AS SUCH PLAN MAY BE
ALTERED, AMENDED, RESTATED OR MODIFIED FROM TIME TO TIME, AND ANY
TRANSFEREE OF THESE SECURITIES SHALL BE SUBJECT TO THE TERMS OF
SUCH PLAN. COPIES OF THE FOREGOING PLAN ARE MAINTAINED WITH THE
CORPORATE RECORDS OF THE ISSUER AND ARE AVAILABLE FOR INSPECTION AT
THE PRINCIPAL OFFICES OF THE ISSUER.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO AN
AWARD AGREEMENT BETWEEN THE ISSUER AND THE HOLDER, AS SUCH
AGREEMENT MAY BE AMENDED, RESTATED OR MODIFIED FROM TIME TO TIME,
AND ANY TRANSFEREE OF THESE SECURITIES SHALL BE SUBJECT TO THE
TERMS OF SUCH AGREEMENT. COPIES OF THE FOREGOING AGREEMENT ARE
MAINTAINED WITH THE CORPORATE RECORDS OF THE ISSUER AND ARE
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICES OF THE
ISSUER.
7. Governing Law. This Agreement
shall be governed by the internal substantive laws but not the
choice of law rules of Delaware.
8. Entire Agreement. The Plan and
Award are incorporated herein by reference. This Agreement, the
Plan, and the Award constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and
the Optionee with respect to the subject matter hereof, and may not
be modified adversely to the Optionee’s interest except by
means of a writing signed by the Company and the
Optionee.
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Submitted
by:
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Accepted
by:
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OPTIONEE
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TENAX
THERAPEUTICS, INC.
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Signature:
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By:
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Name:
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Name:
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Title:
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Date:
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