CRYOPORT SYSTEMS, INC. STOCK OPTION AGREEMENT (NON-STATUTORY STOCK OPTION)
CRYOPORT
SYSTEMS, INC.
(NON-STATUTORY
STOCK OPTION)
This
Stock Option Agreement (the “Agreement”) is made and entered into effective as
of the date set forth on the Signature Page attached hereto by and between
Cryoport Systems, Inc., a California corporation (the “Company”), and that
person identified on the Signature Page below and attached hereto (the
“Optionee”). This Option is not intended to qualify and will not be treated as
an “incentive stock option” within the meaning of Section 422 of the Internal
Revenue Code (the “Code”).
The
grant
hereunder is in connection with and in furtherance of the Company’s compensatory
benefit plan for participation by the Company’s employees (including officers),
directors or consultants. Defined terms not explicitly defined in this Agreement
but defined in the Cryoport Systems, Inc. 2002 Stock Incentive Plan (the “Plan”)
shall have the same definitions as in the Plan.
1. Grant
of Option.
Subject
to the vesting provisions of Section 3 and/or as set forth on the Signature
Page
attached hereto, the Company hereby grants to Optionee, as of the date hereof
the right and option to purchase, on the terms and conditions hereinafter set
forth, all or any part of the aggregate number of shares of Common Shares set
forth on the Signature Page attached hereto (the “Option”), subject to
adjustment in accordance with the provisions of Section 19 below. It is
understood and acknowledged that the Option is designated as a Non-statutory
Stock Option that will not qualify as an incentive stock option under Section
422 of the Code.
2. Purchase
Price.
The
price to be paid for the shares of Common Shares to be issued upon exercise
of
the Option or any part thereof shall be as set forth on the Signature Page
(the
“Purchase Price”).
3. Right
to Exercise.
The
right to exercise the Option shall vest in accordance with the schedule set
forth on the Signature Page. Notwithstanding the foregoing, the Option shall
automatically fully vest (i.e., become exercisable) as to all of the Common
Shares subject to the Option in the event that a Change in Control (as defined
in Section 14.4 of the Plan) occurs with respect to the Company, subject to
the
limitations set forth in Section 14.4 of the Plan.
4. Securities
Law Requirements.
No part
of the Option shall be exercised if counsel to the Company determines that
any
applicable registration requirement under the Securities Act of 1933, as
amended, or any other applicable requirement of Federal or state law has not
been met.
5. Term
of Option.
The
Option shall terminate in any event on the date set forth on the Signature
Page.
6. Nontransferability.
Unless
the Company otherwise consents in writing, the Option and all rights and
privileges granted hereunder shall be non-assignable and non-transferable by
the
Optionee, either voluntarily or by operation of law, except by will or by
operation of the laws of descent and distribution, shall not be pledged or
hypothecated in any way, and shall be exercisable during lifetime only by the
Optionee. Except as otherwise provided herein, any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of the Option
or any right thereunder, shall be null and void and, at the Company’s option,
shall cause all of Optionee’s rights under this Agreement to terminate.
Notwithstanding the foregoing, the Option may be assigned or transferred by
the
Optionee, without the prior written consent of the Company, to his or her
spouse, lineal descendants, siblings or to a trust for the benefit of any of
the
foregoing.
7. Effect
of Exercise.
Upon
exercise of all or any part of the Option, the number of shares of Common Shares
subject to option under this Agreement shall be reduced by the number of shares
with respect to which such exercise is made.
8. Partial
Exercise.
Any
exercisable portion of the Option or the entire Option, if then wholly
exercisable, may be exercised in whole or in part at any time prior to the
time
when the Option or portion thereof becomes unexercisable under Section 5;
provided, however, that each partial exercise shall be for not less than one
hundred (100) shares and shall be for whole shares only.
9. Method
of Exercise.
Each
exercise of the Option shall be by means of a written notice of exercise in
substantially the form of the attached Exhibit A delivered to the Secretary
of
the Company at its principal office and accompanied by payment in full of the
Purchase Price for each share of Common Shares purchased under the Option.
Such
notice shall specify the number of shares of Common Shares with respect to
which
the Option is exercised and shall be signed by the person exercising the Option.
If the Option is exercised by a person other than the Optionee, such notice
shall be accompanied by proof, reasonably satisfactory to the Company, of such
person’s right to exercise the Option.
The
Purchase Price specified in Section 2 above shall be paid in full upon the
exercise of the Option (i) by cash or check, in United States dollars or (ii)
in
any other form determined by the Board of Directors and that is consistent
with
applicable laws, rules and regulations.
10. Withholding
Taxes.
If the
Optionee is an employee or former employee of the Company when all or part
of
the Option is exercised, the Company may require the Optionee to deliver payment
of any withholding taxes (in addition to the Option exercise price) in cash
with
respect to the difference between the Option exercise price and the Fair Market
Value of the Common Shares acquired upon exercise. Alternatively, the Company
may accept shares having a Fair Market Value equal to the amount of the
withholding taxes.
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11. Issuance
of Shares.
Subject
to the foregoing conditions, the Company, as soon as reasonably practicable
after receipt of a proper notice of exercise and without transfer or issue
tax
or other incidental expense to the person exercising the Option, shall deliver
to such person at the principal office of the Company, or such other location
as
may be acceptable to the Company and such person, one or more certificates
for
the shares of Common Shares with respect to which the Option has been exercised.
Such shares shall be fully paid and non-assessable and shall be issued in the
name of such person. However, at the request of the Optionee, such shares may
be
issued in the names of the Optionee and his or her spouse (a) as joint tenants
with right of survivorship, (b) as community property or (c) as tenants in
common without right of survivorship.
12. Limitation
of Optionee’s Rights.
Neither
Optionee nor any person entitled to exercise the Option shall be or have any
of
the rights of a shareholder of the Company in respect of any share issuable
upon
the exercise of the Option unless and until a certificate or certificates
representing shares of Common Shares shall have been issued and delivered upon
exercise of the Option in full or in part. No adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificates are issued. This Option is not an employment contract and
nothing in this option shall be deemed to create in any way whatsoever any
obligation on Optionee’s part to continue in the employ of the Company, or of
the Company to continue Optionee’s employment with the Company. In addition,
nothing in this Option shall obligate the Company or any Affiliate of the
Company, or their respective shareholders, Board of Directors, officers or
employees to continue any relationship which Optionee might have as an Outside
Director or Consultant for the Company or Affiliate of the Company.
13.
Consent
Required to Transfer.
In
connection with any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the
Securities Act of 1933, as amended, including the Company’s initial public
offering, Optionee shall not sell, make any short sale of, loan, hypothecate,
pledge, grant any option for the purchase of, or otherwise dispose or transfer
for value or otherwise agree to engage in any of the foregoing transactions
with
respect to, any shares of Common Shares purchased under the Option without
the
prior written consent of the Company or its underwriters. Such limitations
shall
be in effect for such period of time from and after the effective date of such
registration statement as may be requested by the Company or such
underwriters.
14. Recapitalizations.
Subject
to the provision of the Plan, if the outstanding shares of the class then
subject to this Option are adjusted for any increase or decrease in the number
of issued shares of Common Shares resulting from a subdivision or consolidation
of the Common Shares or the payment of a stock dividend (but only of Common
Shares) or any other increase or decrease in the number of issued shares of
Common Shares effected without receipt of consideration by the Company,
appropriate adjustments shall be made in the number and/or kind of shares or
securities for which the unexercised portions of this Option may thereafter
be
exercised, all without any change in the aggregated exercise price applicable
to
the unexercised portions of this Option, but with a corresponding adjustment
in
the exercise price per share or other unit. Subject to the provisions of the
Plan, if the Company is the surviving corporation in any merger or
consolidation, this Option shall pertain and apply to the securities to which
a
holder of the number of Common Shares subject to the Option would have been
entitled. In the event of a merger or consolidation in which the Company is
not
the surviving corporation, the date of exercisability of this Option shall
be
accelerated to a date prior to such merger or consolidation, unless the
agreement of merger or consolidation provides for the assumption of the Option
by the successor to the Company. To the extent that the foregoing adjustments
relate to securities of the Company, such adjustments shall be made by the
Board, whose determination shall be conclusive and binding on all persons.
Except as expressly provided in this Section 19, the Optionee shall have no
rights by reason of subdivision or consolidation of shares of Common Shares
of
any class, the payment of any Common Share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or common stock
of
another corporation, and any issue by the Company of shares of any class, or
securities convertible into shares of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Purchase Price of Common Shares subject to an Option.
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15. Restricted
Stock Provisions.
In
addition to certain federal and state securities laws restrictions, until such
time as the Company shall have consummated an initial public offering of its
common stock, the shares of Common Shares issued on exercise of this Option
shall upon issuance be subject to the following restrictions (and, as used
herein, “restricted stock” means shares issued on exercise of this Option which
are still subject to the restrictions imposed under this Section that have
not
yet expired or terminated):
(a) Such
shares of restricted stock may not be sold or otherwise transferred or
hypothecated;
(b) If
the
employment of the Optionee with the Company or a subsidiary of the Company
is
terminated for any reason, other than his or her death, normal or early
retirement in accordance with his or her employer’s established retirement
policies and practices, or total disability, the Company (or any subsidiary
designated by it) shall have the option for sixty (60) days after such
termination of employment to purchase for cash all or any part of his or her
restricted stock at the Fair Market Value of the restricted stock on the date
of
such termination of employment (for which purpose Fair Market Value shall have
the same meaning as set forth in the Plan);
(c) The
restrictions imposed under Section 20 shall apply as well to all shares or
other
securities issued in respect of restricted stock in connection with any stock
split, reverse stock split, stock dividend, recapitalization, reclassification,
spin-off, split-off merger, consolidation or reorganization, but such
restrictions imposed under Section 20 shall expire or terminate on the earliest
to occur of the following:
(i) The
ninetieth (90th)
day
after the date on which shares of the same class of Common Shares as such
restricted stock first become publicly traded;
(ii) The
fifth
(5th)
anniversary of the date of grant hereof;
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(iii) As
to any
shares for which the Company’s (or a subsidiary’s) sixty (60) day option to
purchase upon termination of employment shall have become exercisable but shall
expire without having been exercised, on the first business day of the calendar
month next following the expiration of such sixty (60) day option period;
or
(iv) The
occurrence of any event or transaction upon which this Option terminated by
reason of the provisions of Section 19 hereof.
(d) All
certificates representing shares of Common Shares purchased upon the exercise
of
the Option shall bear the following legends:
“THE
SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). ANY TRANSFER OF SUCH SECURITIES
WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT
AS TO
SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR THE ISSUER SUCH REGISTRATION
IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
ACT.”
16. Stock
Incentive Plan.
This
Agreement is subject to, and the Company and the Optionee agree to be bound
by,
all of the terms and conditions of the Company’s 2002 Stock Incentive Plan under
which this Option was granted, as the same shall have been amended from time
to
time in accordance with the terms thereof, provided that no such amendment
shall
deprive the Optionee, without his or her consent, of this Option or any of
his
or her rights hereunder. Pursuant to said 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 and 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 or other persons entitled to exercise this Option at the Company’s
principal office.
17. Notices.
Any
notice to the Company contemplated by this Agreement shall be addressed to
it in
care of its President; any notice to the Optionee shall be addressed to him
or
her at the address on file with the Company on the date hereof or at such other
address as Optionee may hereafter designate in a writing delivered to the
Company as provided herein.
18. Interpretation.
The
interpretation, construction, performance and enforcement of this Agreement
shall lie within the sole discretion of the Board, and the Board’s
determinations shall be conclusive and binding on all interested
persons.
19. Governing
Law.
This
Agreement has been made, executed and delivered in, and the interpretation,
performance and enforcement hereof shall be governed by and construed under
the
laws of the State of California.
**********************
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SIGNATURE
PAGE
NON-STATUTORY
STOCK OPTION AGREEMENT
PURSUANT
TO
CRYOPORT
SYSTEMS, INC.
2002
STOCK INCENTIVE PLAN
| Date of Grant: | ____________________ |
| Exercise Price: | ____________________ |
| Number of Shares: | ____________________ |
| Vesting Schedule: | ____________________ |
| ____________________ |
Notwithstanding
the foregoing, the Option shall automatically fully vest upon a Change in
Control (as defined in Section 14.4 of the Plan), subject to the limitations
set
forth in Section 14.4 of the Plan.
| Expiration Date: | 5 years from the date of grant |
I
have
read the Non-Statutory Stock Option Agreement indicated above which was adopted
for use in connection with the 2002 Stock Incentive Plan. I have also received
and reviewed a copy of the 2002 Stock Incentive Plan. As Optionee, I hereby
acknowledge that as of the date of grant of this Option, it sets forth the
entire understanding between the undersigned Optionee and the Company and its
Affiliates regarding the acquisition of stock in the Company and supersedes
all
prior oral and written agreements on that subject with the exception of (i)
the
options and any other stock awards previously granted and delivered to the
undersigned under stock award plans of the Company, and (ii) the following
agreements only:
NONE
________
(Initial)
OTHER
______________________________________________________________
6
IN
WITNESS WHEREOF, this Non-Statutory Stock Option Agreement has been delivered
by
the parties hereto.
| Date: ______________________ |
"Optionee"
|
| _________________________________ | |
| Name _________________________________ | |
| Address _______________________________ | |
| ______________________________________ | |
| _________________________________ | |
| Social Security Number _________________ |
The
Company hereby agrees to
all
the
terms of the Agreement.
Cryoport
Systems, Inc.
By:
___________________________________
Name:
_________________________________
Title:
__________________________________
Date:
__________________________________
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EXHIBIT
A
OPTION
EXERCISE FORM
(To
be
executed only upon exercise of Option)
The
undersigned holder of the Option hereby irrevocably exercises the Option for
the
purchase of that number of shares of the common stock, no par value, of Cryoport
Systems, Inc. set forth below, up to a maximum of __________ shares (or such
other number of shares as may be issuable upon the exercise of the Option
pursuant to the adjustment provisions of the Agreement), and hereby makes
payment of the aggregate Purchase Price therefore which is also set forth below,
all on the terms and subject to the conditions specified in this
Agreement.
| Number of Shares: | __________________ |
| Exercise Price: | $_________________ |
| Aggregate Purchase Price Paid: | $_________________ |
Dated: _________________________
| HOLDER: | |
| ___________________________ | |
| (Signature) | |
| ___________________________ | |
| (Please print name) |
ACCEPTED:
CRYOPORT
SYSTEMS, INC.
By:
___________________________________
Date: __________________________________
Name:
_________________________________
Title:
__________________________________
Date:
__________________________________