FORM OF DIRECTORS’ OPTION AGREEMENT STOCK OPTION AGREEMENT
EXHIBIT
10.1
FORM
OF DIRECTORS’ OPTION AGREEMENT
THIS
AGREEMENT, made this ____ day of _________200_, by and between SpectraScience,
Inc., a Minnesota corporation (the "Company”) and _________
("Optionee").
1. Grant of
Option.
Pursuant
to its Amended 2001 Stock Option Plan (the "Plan), the Company hereby grants to
Optionee, on the date set forth above, the right and option (hereinafter called
the "option”) to purchase all or any part of an aggregate of _______________
(________) shares of Common Stock par value $0.01 per share (the "Shares"), on
the terms and conditions set forth herein. This option is not intended to be an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"). All capitalized terms not defined herein
are defined in the Plan.
2. Duration and
Exercisability.
(a) This
option shall be exercisable on and after the dates set forth below for the
number of Shares indicated.
|
Exercise Period
|
No. Of Shares
(Cumulative)
|
Price/Share
|
||||
|
|
|
$ | ||||
|
|
|
$ | ||||
|
|
|
$ | ||||
|
|
(b)
|
This
Option shall in all events terminate on _________,
201_.
|
(c)
During the lifetime of Optionee, the option shall be exercisable only by
Optionee and shall not be assignable or transferable by Optionee other than by
will or the laws of descent and distribution.
3.
Manner of
Exercise.
(a) The
option can be exercised only by Optionee or other proper party by delivering
within the option period written notice to the Company at its principal office.
The notice shall state the number of Shares as to which the option is being
exercised and be accompanied by payment in full of the option price for all
shares designated in the notice. The original Option Agreement and the number of
Shares issued to optionee shall be noted on the original certificate prior to
its return to Optionee.
(b)
Optionee may pay the option price in cash by check (bank check, certified check
or personal check), or by money order or as otherwise provided in the
Plan.
1
|
|
4.
|
Miscellaneous
|
(a) This
option is issued pursuant to the Company's Amended 2001 Stock Option Plan and is
subject to its terms which are incorporated by reference herein. The terms of
the Plan are available for inspection during business hours at the principal
office of the Company.
(b)
Optionee shall have none of the rights of a shareholder with respect to Shares
subject to this option until such Shares shall have been issued to Optionee upon
exercise of this option.
(c) The
exercise of all or any parts of this option shall only be effective at such time
that the sale of Shares pursuant to such exercise will not violate any state or
federal securities laws.
(d) If
there shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, dividend in the form of stock
(of whatever amount, stock split or other change in the corporate structure of
the Company and all or any portion of the option shall then be unexercised and
not yet expired, then equitable adjustments in the outstanding option shall be
made by the Company in order to prevent dilution or enlargement of option
rights. Such adjustments shall include, where appropriate changes in the number
of Shares and the price per share subject to the outstanding
option.
(e) The
Company shall 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 this Agreement.
(f)
Optionee agrees that if (i) the Company advises Optionee that it plans an
underwritten public offering of its Common Stock in compliance with the
Securities Act of 1933, as amended, and that the underwriters have requested
that certain shareholders including Optionee, refrain from selling, entering
into any contract to sell, or granting any option to buy or otherwise dispose of
part or all of their Common Stock or Common Stock purchase rights, then (ii) for
a period not to exceed 180 days from the prospectus, Optionee shall not sell or
contract to sell or grant an option to buy or otherwise dispose of this Option
or any of the underlying Shares without the prior written consent of the
underwriters. This section shall not prohibit any exercise of this
Option.
(g)
Notwithstanding anything in this Agreement to the contrary, in the event the
Company makes any public offering of its securities and determines in its sole
discretion that it is necessary to reduce the number of issued but unexercised
stock purchase rights so as to comply with any state securities or Blue Sky law
limitations with respect thereto, the Board of Directors of the Company shall
have the right (i) to accelerate the exercisability of this Option and the date
on which this Option must be exercised, provided that the Company gives Optionee
15 days' prior written notice of such acceleration and (ii) to cancel any
portion of this Option or any other option granted to Optionee pursuant to this
Agreement which is not exercised prior to or contemporaneously with such public
offering. To the extent the Option is cancelled pursuant to this Section, the
Company will grant Optionee stock appreciation right or other equivalent
compensation which provides the same benefits as the Option so cancelled. Notice
shall be deemed given when delivered personally or when deposited in the United
States mail first class postage prepaid and addressed to Optionee at the address
of Optionee on file with the Company.
2
(h).
Optionee agrees that if Optionee is an "affiliate" of the Company or any
subsidiary (as defined in applicable legal and accounting principles) at the
time of any "change of control transaction," Optionee will comply with all
requirements of Rule 145 of the Securities Act of 1933, as amended, and the
requirements of other applicable legal or accounting principles, and will
execute any documents necessary to ensure such compliance. For purposes of this
Agreement, a "change of control transaction" means an acquisition of the Company
through the sale of substantially all of the Company's assets and the consequent
discontinuance of its business or through a merger, consolidation, exchange,
reorganization, reclassification, extraordinary dividend, divestiture or
liquidation of the Company.
(i) The
certificates for any Shares purchased by Optionee (or, in the case of death,
Optionee's successors shall bear an appropriate legend to reflect the
restrictions imposed by this Agreement.
(j) Any
dispute arising out of or relating to this Agreement or the alleged breach of
it, or the making of this Agreement, including claims of fraud and inducement,
shall be discussed between the disputing parties in a good faith effort to
arrive at a mutual settlement of any such controversy. If, notwithstanding, such
dispute cannot be resolved, such dispute shall be settled by binding
arbitration. Judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. The arbitrator shall be a
retired state or federal judge or an attorney who has practiced securities or
business litigation for at least ten (10) years. If the parties cannot agree on
an arbitrator within twenty (20) days, any party may request that the California
Bar Association recommend three arbitrators and the parties shall select one
such person at random (by drawing or other means). Arbitration will be conducted
pursuant to the provisions of this Agreement and the commercial arbitration
rules of the American Arbitration Association, unless such rules are
inconsistent with the provisions of this Agreement. Limited civil discovery
shall be permitted for the production of documents and taking of depositions.
Unresolved discovery disputes may be brought to the attention of the arbitrator
who may dispose of such disputes. The arbitrator shall have the authority to
award any remedy or relief that a court of this state could order or grant,
provided, however, that punitive or exemplary damages shall not be awarded. The
arbitrator may award to the prevailing party, if any, as determined by the
arbitrator, all of its costs and fees, including the arbitrator's fee,
administrative fees, travel expenses) out-of-pocket expenses and reasonable
attorney's fees. Unless otherwise agreed by the parties, the place of any
arbitration proceedings shall be San Diego, California.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
SPECTRASCIENCE,
INC.
By_____________________
Its:____________________
ACCEPTED
_________________________
Optionee
3