Exhibit 10.16
NQSOP No.______
ATHENA MEDICAL CORPORATION
NON-STATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement is between ATHENA MEDICAL
CORPORATION, a Nevada corporation (the "Company"), and ____________________
(the "Optionee"), pursuant to the Company's 1994 Incentive and Non-Qualified
Stock Option Plan, as amended (the "Plan"). The Company and the Optionee
agree as follows:
1. Option Grant. The Company hereby grants to the Optionee on the terms
and conditions of this Agreement the right and option (the "Option")
to purchase all or any part of________ shares of the Company's common
stock at a purchase price of $_______ per share. The terms and
conditions of this Option set forth in the attached Exhibit A are
hereby incorporated into and made a part of this Agreement.
2. Grant Date; Expiration Date. The grant date for this Option is
________, 199__ . This Option shall continue in effect until ________,
_________, which is 10 years after such grant date (the "Expiration
Date"), unless earlier terminated as provided in paragraph 4, 8 or 9
of Exhibit A.
3. Time of Exercise. Until expiration or termination as provided in
paragraph 4, 8 or 9 of Exhibit A, this Option may be exercised from
time to time to purchase shares up to the following limits:
VESTING DATE Amount Exercisable
------------ ------------------
The minimum number of shares with respect to which this Option may be
exercised at any one time is 100 shares, unless an installment subject
to exercise is fewer than 100 shares.
4. Method of Exercise. Paragraph 5 of Exhibit A sets forth the method
by which this Option may be exercised. This Option is not
transferable except by will, the laws of intestacy or qualified
domestic relations order.
ATHENA MEDICAL CORPORATION OPTIONEE
By:________________________ ____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
_____________________________
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇-▇ _____________________________
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN:________________________
Page 1
EXHIBIT A
TO NON-STATUTORY STOCK OPTION AGREEMENT
THE PLAN. The Non-Statutory Stock Option Agreement is subject to all terms
and conditions of the Athena Medical Corporation 1994 Incentive and
Non-Qualified Stock Option Plan (the "Plan") adopted by the Company as of June
7, 1994, as it may thereafter be amended. All provisions of the Plan are
incorporated herein by this reference. A copy of the Plan may be obtained upon
request to the Company.
NONTRANSFERABILITY. The Option is nonassignable and nontransferable by the
Optionee, either voluntarily or by operation of law, except: (a) by will or by
the laws of descent and distribution of the state or country of the Optionee's
domicile at the time of death; or (b) pursuant to a qualified domestic relations
order as defined under the Internal Revenue Code of 1986, as amended, or Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
More particularly (but not in limitation of the foregoing), the Option may not
be sold, assigned, transferred (except as provided above), pledged or encumbered
in any way, and shall not be subject to execution, attachment or similar
process. Any attempted sale, assignment, transfer, pledge, encumbrance or other
disposition contrary to the Plan, or the levy of any execution, attachment or
similar process upon the Option, will be void and without effect.
CERTAIN RIGHTS AND OBLIGATIONS AFFECTING EXERCISE. If the Optionee does not
exercise an Option in any one year with respect to the full number of shares to
which the Optionee is entitled in that year, the Optionee's rights will be
cumulative and the Optionee may purchase those shares in any subsequent year
during the term of the Option.
Total Disability, Death or Cessation of Board Membership of Optionee.
(a) Total Disability. In the event of the total disability (as
defined in the Plan) of the Optionee, the Option may be exercised at any time
prior to the expiration date of the Option, but only if and to the extent the
Optionee was entitled to exercise the Option at the date of occurrence of
total disability, and only by the Optionee or the Optionee's legal
representative.
(b) Death. In the event of the death of the Optionee, the Option
may be exercised at any time prior to the expiration date of the Option, but
only if and to the extent the Optionee was entitled to exercise the Option at
the date of death and only by the person or persons to whom the Optionee's
rights under the Option pass by the Optionee's will or by the laws of descent
and distribution of the state or country of domicile at the time of death.
Page 2
(c) Cessation of Board Membership. If the Optionee was awarded the
Option or a member of the Board of Directors of the Company and the Optionee
ceases to be a member of the Board of Directors for any reason other than
total disability or death, the Option must be exercised not more than three
months after such cessation of membership. However, the Option may be
exercised only if and to the extent the Optionee was entitled to exercise the
Option at the date of such cessation of membership.
METHOD OF EXERCISE OF OPTION. Subject to the other terms and conditions of
the Plan, the Option may be exercised by written notice to the Company at its
principal office in Portland, Oregon. A notice form for this purpose may be
obtained from the Company. The notice must: (a) state the election to exercise
the Option; (b) specify the number of shares in respect of which it is being
exercised; (c) give the date on which the Optionee desires to complete the
transaction; and (d) if required in order to comply with the Securities Act of
1933, as amended, contain a representation that it is the Optionee's present
intention to acquire the shares for investment and not with a view to
distribution. The notice must be signed by the Optionee.
Unless the Board of Directors of the Company determines otherwise, on or
before the date specified for completion of the purchase of shares the Optionee
must have paid the Company the full purchase price for the shares in cash. No
shares will be issued until full payment for the shares has been made. With the
consent of the Board of Directors, an Optionee may request the Company to apply
automatically the shares to be received upon the exercise of a portion of the
Option (even though stock certificates have not yet been issued) to satisfy the
purchase price for additional portions of the Option.
THE OPTIONEE ACKNOWLEDGES THAT EXERCISE OF THE OPTION MAY CREATE TAXABLE
INCOME TO THE OPTIONEE. THE INCOME TAX, INCLUDING PAYMENT OF ESTIMATED TAXES, IS
THE SOLE RESPONSIBILITY OF THE OPTIONEE. In addition, if the Optionee is or was
an employee of the Company, the Optionee may be required, upon notification of
the amount due, if any, to pay to the Company in cash amounts necessary to
satisfy any applicable federal, state and local tax withholding requirements. If
additional withholding is or becomes required beyond any amount deposited before
delivery of the certificates, the Optionee must pay such amount to the Company
on demand. If the Optionee fails to pay the amount demanded, the Company may
withhold that amount from other amounts payable by the Company to the Optionee,
including salary, subject to applicable law. With the consent of the Board of
Directors, an Optionee may satisfy this obligation, in whole or in part, by
having the Company withhold amounts due or by delivering to the Company shares
that would satisfy the withholding amount.
The certificate for the shares as to which the Option is exercised will be
registered in the name of the Optionee. If the Optionee has so requested in the
notice exercising the Option, the certificate may be registered in the name of
the Optionee and another person jointly, with right of survivorship.
Page 3
RESERVATION OF SHARES. The Company will, at all times during the term of
the Option, reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of the Option, and will pay all original
issue and transfer taxes with respect to the issue and transfer of shares
pursuant to it, and all other fees and expenses necessarily incurred by the
Company in connection with it. The number of shares reserved for issuance under
the Plan will be reduced by the number of shares issued upon exercise of an
option.
NO REGISTRATION REQUIREMENTS. The Company will not be deemed by reason of
issuance of any shares under the Plan to have any obligation to register such
shares under the Securities Act of 1933, as amended, nor to maintain in effect
any registration of such shares. In addition, unless the shares have been so
registered, the Option granted under the Plan is on the condition that the
acquisition of shares under the Option will be for investment purposes only, and
the Optionee acquiring the shares must bear the economic risk of the investment
for an indefinite period of time, since the shares so acquired cannot be sold
unless they are subsequently registered or an exemption from such registration
is available. The Optionee agrees that a legend may be placed on the stock
certificates acknowledging the restrictions on subsequent sale or distribution
of the shares.
CHANGES IN CAPITAL STRUCTURE. If during the term of the Option the
outstanding common stock of the Company is increased or decreased or changed
into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation, plan of exchange, recapitalization,
reclassification, stock split-up, combination of shares or dividend payable
in shares, appropriate adjustment will be made by the Board of Directors of
the Company in the number and kind of shares available for awards under the
Plan. In addition, except with respect to transactions referred to in
paragraph 9 below, the Board of Directors will make appropriate adjustment in
the number and kind of shares as to which the Option, or portions of it then
unexercised, will be exercisable, so that the Optionee's proportionate
interest before and after the occurrence of the event is maintained. However,
the Board of Directors will have no obligation to cause any adjustment that
would or might result in the issuance of fractional shares, and any
fractional shares resulting from any adjustment may be disregarded or
provided for in any manner determined by the Board of Directors. Any such
adjustments made by the Board of Directors will be conclusive.
If the shareholders of the Company receive capital stock from another
corporation ("Exchange Stock") in exchange for their shares of the Company in
any transaction involving a merger, consolidation or plan of exchange, the
Option will be converted into an option to purchase shares of Exchange Stock
(unless the Company and the corporation issuing the Exchange Stock, in their
sole discretion, determine that any or all options granted under the Plan are to
be treated as set forth in the following sentence) in the same proportion as
used for
Page 4
determining the number of shares of Exchange Stock the holders of the
common stock receive in such merger, consolidation or exchange.
In the event of dissolution of the Company or a merger, consolidation or
plan of exchange affecting the Company to which paragraph 9 below does not
apply, in lieu of providing for options pursuant to the above, the Board of
Directors may, in its sole discretion, provide a 30-day period prior to such
event during which the Optionee will have the right to exercise the Option in
whole or in part without any limitation on exercisability and upon the
expiration of which 30-day period the unexercised Option will immediately
terminate.
ACCELERATION IN CERTAIN EVENTS. Notwithstanding any other provisions above
or of the Plan, the Option will immediately become exercisable in full for the
remainder of its term at any time when any one of the following events has taken
place:
(a) The shareholders of the Company approve one of the following:
(i) Any consolidation, merger or plan of exchange involving the Company
("Merger") pursuant to which common stock would be converted into
cash; or
(ii) Any sale, lease, exchange or other transfer (in one transaction
or in a series of related transactions) of all or substantially all
the assets of the Company or the adoption of any plan or proposal
for the liquidation or dissolution of the Company; or
(b) A tender or exchange offer, other than one made by the Company, is
made for common stock (or securities convertible into common stock)
and such offer results in a portion of those securities being
purchased and the offeror after the consummation of the offer is
the beneficial owner (as determined pursuant to Section 13(d) of
the Securities Exchange Act of 1934 (the "Exchange Act")), directly
or indirectly, of at least 20% of the outstanding common stock of the
Company; or
(c) The Company receives a report on Schedule 13D under the Exchange
Act reporting the beneficial ownership by any person of 20% or more
of the Company's outstanding common stock, except that if such
receipt occurs during a tender offer or exchange offer by any
person other than the Company or a wholly owned subsidiary of the
Company, acceleration of exercisability will not take place until
the conclusion of such offer; or
(d) During any period of 12 months or less, individuals who at the
beginning of such period constituted a majority of the Board of
Directors of the Company cease for any reason to constitute a
majority thereof unless the nomination or election of new directors
was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period.
Page 5
All Options that are accelerated pursuant to this paragraph
9 will terminate upon the dissolution of the Company or upon the
consummation of any Merger pursuant to which common stock of the Company
would be converted to cash. The terms used in this paragraph 9 and not
defined elsewhere in the Plan have the same meanings as such terms have
in the Exchange Act of 1934 and the rules and regulations adopted under
it.
APPROVALS. The obligations of the Company under the Plan are subject to the
approval of state and federal authorities or agencies having jurisdiction. The
Company will use its best efforts to take steps required by state or federal law
or applicable regulations, including rules and regulations of the Securities and
Exchange Commission and any stock exchange on which the Company's shares may
then be listed, in connection with the Option and other grants under the Plan.
However, the Company will not be obligated to issue or deliver common stock to
the Optionee if such issuance or delivery would violate applicable state or
federal securities laws.
RIGHTS AS A SHAREHOLDER. The Optionee will have no rights as a shareholder
with respect to any common stock until the date of issue to the recipient of a
stock certificate for such shares. No adjustment will be made for dividend or
other rights for which the record date occurs prior to the date such stock
certificate is issued.
NO RIGHT TO EMPLOYMENT OR SERVICE. Nothing in the Non-Statutory Stock
Option Agreement or the Plan will: (a) confer upon the Optionee any right to be
employed or to continue in the employment of or service to the Company or any
subsidiary of it; (b) interfere in any way with the right of the Company to
terminate the Optionee's employment or service with the Company, if any, at any
time for any reason, with or without cause, or to decrease or otherwise modify
the Optionee's compensation or benefits; or (c) confer upon the Optionee any
right to continuation, extension, renewal or modification of any compensation,
contract or arrangement with or by the Company.
NOTICES. Any notices under the Non-Statutory Stock Option Agreement must be
in writing and will be effective when personally delivered or, if mailed, two
days after deposit in the United States Mail by certified mail, return receipt
requested, postage prepaid. Mail is to be directed to the addresses stated on
the face page of the Non-Statutory Stock Option Agreement or to such other
address as a party may provide by notice given in the same manner.
Page 6