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EXHIBIT 4.3.3
Date of Grant: 12-13-01
THERMOGENESIS CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS CONTAINED HEREIN. THE GRANT OF THIS OPTION SHALL NOT IMPOSE AN
OBLIGATION UPON THE OPTIONEE TO EXERCISE THIS OPTION.
THIS OPTION AND THE SHARES UNDERLYING THIS OPTION HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW.
NEITHER THIS OPTION NOR THE SHARES UNDERLYING THIS OPTION MAY BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
THIS AGREEMENT is made by and between THERMOGENESIS CORP., a Delaware
corporation (the "Company") and Xxxxxxx Xxxxxx ("Optionee"), as of this 13th Day
of December, 2002..
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Optionee, in the manner and
subject to the conditions hereinafter provided, the right, privilege and option
to purchase (the "Option") an aggregate of 25,000 shares of the Company's Common
Stock, par value $.001, (the "Shares"). This Option is specifically conditioned
on compliance with the terms and conditions set forth herein.
2. Term of Option. Subject to the terms, conditions, and restrictions set forth
herein, the term of this Option shall be five (5) years from the date of grant
(the "Expiration Date"). Any portion of this Option not exercised prior to the
Expiration Date shall thereupon become null and void.
3. Exercise of Option.
3.1. Vesting of Option. This Option shall become fully vested and
exercisable immediately upon grant, subject to the terms of this Agreement.
All or any portion of the shares underlying this Option may be purchased
during the term of this Option, but not as to less than 50 shares (unless the
remaining shares then constituting the Vested Portion of this Option is less
than 50 shares) at any time.
3.2. Manner of Exercise. This Option may be exercised from time to time, in
whole or in part, by presentation of a Request to Exercise Form, substantially
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in the form attached hereto, to the Company at its principal office, which Form
must be duly executed by Optionee and accompanied by payment, in cash, cash
equivalent or form of obligation acceptable to the Company, in the aggregate
amount of the Exercise Price (as defined below), multiplied by the number of
Shares the Optionee is purchasing at such time, subject to reduction for
withholding for tax obligations as provided in Section 13.
Upon receipt and acceptance by the Company of such Form accompanied by the
payment specified, the Optionee shall be deemed to be the record owner of the
Shares purchased, notwithstanding that the stock transfer books of the Company
may then be closed or that certificates representing the Shares purchased under
this Option may not then be actually delivered to the Optionee.
3.3. Exercise Price. The exercise price (the "Exercise Price") payable upon
exercise of this Option shall be $1.57 per share.
3.4. Regulatory Compliance. This Option will not be effective unless it is
in compliance with all applicable federal and state securities laws, rules and
regulations of any governmental body, and the requirements of any stock exchange
or automated quotation system upon which the Shares may then be listed or
quoted, as they are in effect on the date of grant of this Option and also on
the date of exercise or other issuance. Notwithstanding any other provision
herein, the Company will have no obligation to issue or deliver certificates for
Shares under this Option prior to (a) obtaining any approvals from governmental
agencies that the Company determines are necessary or advisable; and/or (b)
completion of any registration or other qualification of such Shares under any
state or federal laws or rulings of any governmental body that the Company
determines to be necessary or advisable. Notwithstanding the foregoing the
Company is under no obligation to separately register the options or shares
issuable upon exercise of the options.
3.5. Investment Intent at Grant. Optionee represents and agrees that the
Shares to be acquired upon exercising this Option will be acquired for
investment, and not with a view to the sale or distribution thereof.
3.6. Investment Intent at Exercise. In the event that the sale of Shares
under this Agreement are not registered under the Securities Act but an
exemption is available which requires an investment representation or other
representation, Optionee shall represent and agree at the time of exercise that
the Shares being acquired upon exercising this Option are being acquired for
investment, and not with a view to the sale or distribution thereof, and shall
make such other representations as are deemed necessary or appropriate by the
Company and its counsel.
3.7. Legends. All certificates for Shares or other securities delivered
under this Option will be subject to such stock transfer orders, legends and
other restrictions as the Company may deem necessary or advisable, including
restrictions under any applicable federal, state or foreign securities law, or
any rules, regulations and other requirements of the SEC or any stock exchange
or automated quotation system upon which the Shares may be listed or quoted.
All certificates evidencing Shares purchased under this Agreement in an
unregistered transaction shall bear the following legend (and such other
restrictive legends as are required or deemed advisable under the provisions of
any applicable law):
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW.
THESE SHARES MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT
AND APPLICABLE STATE SECURITIES LAWS, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY
3.8. Removal of Legends. If, in the opinion of the Company and its counsel,
any legend placed on a stock certificate representing Shares sold under this
Agreement is no longer required, the holder of such certificate shall be
entitled to exchange such certificate for a certificate representing the same
number of Shares but without such legend.
3.9. Administration. Any determination by the Company and its counsel in
connection with any of the matters set forth in this Section 3 shall be final
and binding on Optionee and all other persons.
4. Limitations on Exercise.
4.1. Suspension and Cancellation of Options. In the event the Board of
Directors reasonably believes Optionee has committed an act of misconduct
including, but limited to acts specified below, the Board of Directors may
suspend the Optionee's right to exercise any Option granted hereunder pending
final determination by the Board. If Optionee is determined by the Board to
have: (i) committed an act of embezzlement, fraud, dishonesty, breach of
fiduciary duty to Company or a Subsidiary; (ii) deliberately disregarded the
rules of Company or a Subsidiary which resulted in loss, damage or injury to
Company or a Subsidiary; (iii) made any unauthorized disclosure of any trade
secret or confidential information of Company or a Subsidiary; (iv) induced any
client or customer of Company or a Subsidiary to break any contract with Company
or a Subsidiary or induced any principal for whom Company or a Subsidiary acts
as agent to terminate such agency relations; or (v) engaged in any substantial
conduct which constitutes unfair competition with Company or a Subsidiary,
neither the Participant nor his estate shall be entitled to exercise any Option
hereunder. The determination of the Board shall be final and conclusive. In
making its determination, the Board shall give the Optionee an opportunity to
appear and be heard at a hearing before the full Board and present evidence on
the Optionee's behalf. Without limiting the generality of the foregoing, the
Optionee shall pay to the Company any gain realized by from exercising all or
any portion of the Options hereunder during a period beginning six (6) months
prior to such suspension or cancellation pursuant to this Section 4.1.
Notwithstanding the foregoing, this option shall be cancelled and not capable of
exercise upon the Board's determination that Optionee has engaged in any of the
following conduct:
i. engaged in any commercial activity in competition with any
part of the business of Company or a Subsidiary;
ii. diverted or attempted to divert from Company or a Subsidiary
business of any kind, including, without limitation, interference with
any business relationship with suppliers, customers, licensees,
licensors or contractors;
iii. made, or caused or attempted to cause any other person to
make, any statement, either written or oral, or conveying any
information about Company or a Subsidiary which is disparaging or
which in any way reflects negatively upon Company or a Subsidiary;
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iv. engaged in any other activity that is inimical, contrary or
harmful to the interests of Company or a Subsidiary, including
influencing or advising any person who is employed by or in the
service of Company or a Subsidiary to leave such employment or service
to compete with Company or a Subsidiary or to enter into the
employment or service of any actual or prospective competitor of
Company or a Subsidiary, or to have influenced or advised any
competitor of Company or a Subsidiary to employ or to otherwise engage
the services of any person who is employed by Company or in the
service of Company, or improperly disclosed or otherwise misused any
confidential information regarding Company or a Subsidiary; or
v. refused or failed to provide, upon the request of Company or a
Subsidiary, a certification, in a form satisfactory to Company or a
Subsidiary, that he or she is in full compliance with the terms and
conditions of this Agreement.
4.2 Interpretation. Should any provision to this Section 4. be held to be
invalid or illegal, such illegality shall not invalidate the whole of this
Section 4, but, rather, this Agreement shall be construed as if it did not
contain the illegal part or narrowed to permit its enforcement, and the rights
and obligations of the parties shall be construed and enforced accordingly.
5. Restrictions on Transfer of Option. This Option is not transferable by
Optionee other than by will or the laws of descent and distribution and is
exercisable only by the Optionee during his lifetime except as provided in
Section 4.2. above.
6. Adjustment for Changes in Capitalization. The existence of this Option shall
not affect the Company's right to effect adjustments, recapitalizations,
reorganizations or other changes in its or any other corporation's capital
structure or business, any merger or consolidation, any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the
Shares, the dissolution or liquidation of the Company's or any other
corporation's assets or business or any other corporate act whether similar to
the events described above or otherwise. If the outstanding shares of the
Company's Common Stock are increased or decreased in number or changed into or
exchanged for a different number or kind of securities of the Company or any
other corporation by reason of a recapitalization, reclassification, stock
split, reverse stock split, combination of shares, stock dividend or other
similar event, an appropriate adjustment of the number and kind of securities
with respect to which this Option may be exercised and the exercise price at
which this Option may be exercised will be made.
7. Dissolution, Liquidation, Merger.
7.1. Company Not The Survivor. In the event of a dissolution or liquidation
of the Company, a merger, consolidation, combination or reorganization in which
the Company is not the surviving corporation, or a sale of substantially all of
the assets of the Company (as determined in the sole discretion of the Board of
Directors), the Board of Directors, in its absolute discretion, may cancel each
outstanding Option upon payment in cash to the Optionee of the amount by which
any cash and the fair market value of any other property which the Optionee
would have received as consideration for the shares of Stock covered by the
Option if the Option had been exercised before such liquidation, dissolution,
merger, consolidation or sale exceeds the exercise price of the Option.
7.2. Company is the Survivor. In the event of a merger, consolidation,
combination or reorganization in which the Company is the surviving corporation,
the Board of Directors shall determine the appropriate adjustment of the number
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and kind of securities with respect to which outstanding Options may be
exercised, and the exercise price at which outstanding Options may be exercised.
The Board ofDirectors shall determine, in its sole and absolute discretion, when
the Company shall be deemed to survive for purposes of this Agreement.
8. Reservation of Shares. The Company agrees that prior to the earlier of the
expiration of this Option or the exercise and purchase of the total number of
Shares represented by this Option, there shall be reserved for issuance and
delivery upon exercise of this Option such number of the Company's authorized
and unissued Shares as shall be necessary to satisfy the terms and conditions of
this Agreement. However, see Section 15 with respect to the Company's obligation
to comply with the securities laws.
9. No Rights as Shareholder. The Optionee shall have no rights as a shareholder
with respect to any Shares covered by this Option unless the Optionee shall have
exercised this Option, and then only with respect to the shares underlying the
portion of the Option exercised. The Optionee shall have no right to vote any
Shares, or to receive distributions of dividends or any assets or proceeds from
the sale of Company assets upon liquidation until Optionee has effectively
exercised this Option and fully paid for such Shares. Subject to Section 6, no
adjustment shall be made for dividends or other rights for which the record date
is prior to the date title to the Shares has been acquired by the Optionee.
10. No Rights to Employment or Continued Employment. The grant of this Option
shall in no way be construed so as to confer on Optionee the rights to
employment or continued employment by the Company. Nothing hereunder shall
confer upon any Optionee any right to employment or to continue in the employ or
consultancy of the Company or a Subsidiary, or to interfere with or restrict in
any way the rights of the Company or its Subsidiaries, which are hereby
expressly reserved, to terminate or discharge any Optionee at any time for any
reason whatsoever, with or without cause.
11. [omitted]
12. Participation in Other Option Plans. The grant of this Option shall not
prevent Optionee from participating or being granted other options in the same
or other plans provided, however, that the Optionee meets the eligibility
requirements, and such participation or grant does not prevent the other plan
from meeting the requirements of the Internal Revenue Code of 1986, as amended.
13. Payment of Taxes. Optionee shall pay the Company in cash all local, state
and federal withholding taxes applicable, in the Company's absolute discretion,
to the grant or exercise of this Option, or the transfer or other disposition of
Shares acquired upon exercise of this Option. Any such payment must be made
promptly when the amount of such obligation becomes determinable. The Board of
Directors may, in lieu of such cash payment, withhold that number of Shares
sufficient to satisfy such withholding.
14. Issue and Transfer Tax. The Company will pay all issuance taxes, if any,
attributable to the initial issuance of Shares upon the exercise of the Option;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue or
delivery of any certificates for Shares in a name other than that of the
Optionee.
15. Compliance with Securities Laws. The Company shall not be obligated to issue
any Shares upon exercise of this Option unless such Shares are at that time
effectively registered or exempt from registration under the federal securities
laws and the offer and sale of the Shares are otherwise in compliance with all
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applicable securities laws. The Company intends to register the Shares under the
federal securities laws and to take whatever other steps may be necessary to
enable the Shares to be offered and sold under federal or other securities laws.
Upon exercising all or any portion of this Option, an Optionee may be required
to furnish representations or undertakings deemed appropriate by the Company to
enable the offer and sale of the Shares or subsequent transfers of any interest
in such Shares to comply with applicable securities laws. Evidences of ownership
of Shares acquired upon exercise of this Option shall bear any legend required
by, or useful for purposes of compliance with, applicable securities laws or
this Agreement.
15.1. SEC Holding Requirements. To the extent required by Rule 16b-3, as
promulgated under Section 16(b) of the Securities Exchange Act of 1934, as
amended, all Optionees who are officers or directors of the Company shall not be
entitled to transfer any shares of Class A Common Stock that they receive from
the exercise of the Options granted hereunder for a period of six (6) months
from the date that such Options were granted. Any stock issued upon conversion
during the initial six (6) month period shall be appropriately legended with
respect to this restriction.
16. Arbitration. Any controversy, dispute or claim arising out of or relating to
this Option which cannot be amicably settled including, but not limited to, the
suspension or termination of Optionee's right in accordance with Section 11
above, shall be settled by arbitration conducted in Sacramento County or such
other mutually agreed upon location. Said arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association at a time and place within the above-referenced location as selected
by the arbitrator(s).
16.1. Initiation of Arbitration. After seven (7) days prior written notice
to the other, either party hereto may formally initiate arbitration under this
Agreement by filing a written request therefor, and paying the appropriate
filing fees, if any.
16.2. Hearing and Determination Dates. The hearing before the arbitrator
shall occur within thirty (30) days from the date the matter is submitted to
arbitration. Further, a determination by the arbitrator shall be made within
forty-five (45) days from the date the matter is submitted to arbitration.
Thereafter, the arbitrator shall have fifteen (15) days to provide the parties
with his or her decision in writing. However, any failure to meet the deadlines
in this section will not affect the validity of any decision or award.
16.3. Binding Nature of Decision. The decision of the arbitrator shall be
binding on the parties. Judgment thereon shall be entered in a court of
competent jurisdiction.
16.4. Injunctive Actions. Nothing herein contained shall bar the right of
either party to seek to obtain injunctive relief or other provisional remedies
against threatened or actual conduct that will cause loss or damages under the
usual equity rules including the applicable rules for obtaining preliminary
injunctions and other provisional remedies.
16.5. Costs. The cost of arbitration, including the fees of the arbitrator,
shall initially be borne equally by the parties; provided, the prevailing party
(as determined by the arbitrator in accordance with California Code of Civil
Procedure Section 1032) shall be entitled to recover such costs, in addition to
attorneys' fees and other costs, in accordance with Section 19 of this
Agreement.
17. Notices. All notices to be given by either party to the other shall be in
writing and may be transmitted by personal delivery, facsimile transmission,
overnight courier or mail, registered or certified, postage prepaid with return
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receipt requested; provided, however, that notices of change of address or telex
or facsimile number shall be effective only upon actual receipt by the other
party. Notices shall be delivered at the following addresses, unless changed as
provided for herein.
To the Optionee:
To the Company:
THERMOGENESIS CORP.
0000 Xxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
18. Applicable Law. This Option and the relationship of the parties in
connection with its subject matter shall be governed by, and construed under,
the laws of the State of California.
19. Attorneys Fees. In the event of any litigation, arbitration, or other
proceeding arising out of this Option the prevailing party shall be entitled to
an award of costs, including an award of reasonable attorneys' fees. Any
judgment, order, or award entered in any such proceeding shall designate a
specific sum as such an award of attorney's fees and costs incurred. This
attorneys' fee provision is intended to be severable from the other provisions
of this Agreement, shall survive any judgment or order entered in any proceeding
and shall not be deemed merged into any such judgment or order, so that such
further fees and costs as may be incurred in the enforcement of an award or
judgment or in defending it on appeal shall likewise be recoverable by further
order of a court or panel or in a separate action as may be appropriate.
20. Governmental Compliance. The Option granted hereby shall be subject to the
requirement that, if at any time the Company shall determine, in its sole
discretion, that the listing upon any securities exchange or the registration or
qualification under any state or federal securities laws of the Common Stock
covered thereby or the consent or approval of any governmental or regulatory
agency is necessary or desirable as a condition of, or in connection with, the
granting of such Option or the issuance or purchase of the Common Stock
thereunder, no such Option may be exercised, in whole or in part, unless such
listing, registration, qualification, consent, or approval shall have been
effected or obtained free of any conditions not acceptable to the Company.
21. Binding Effect. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, executors, and successors.
22. Counterparts. This Option may be executed in one or more counterparts, each
of which when taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Option Agreement has been executed as of the 13th
day of December, 2001, at Rancho Cordova, California.
THE COMPANY: THERMOGENESIS CORP.
By:__________________________
Xxxxx X. Xxxxxx
President & C.O.O.
__________________________________
Xxxxx Xxxxxxx, Assistant Secretary
OPTIONEE: ______________________________
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REQUEST TO EXERCISE FORM
Dated:______________
The undersigned hereby irrevocably elects to exercise all or part, as
specified below, of the Vested Portion of the option ("Option") granted to him
pursuant to a certain stock option agreement ("Agreement") effective
_____________________, between the undersigned and THERMOGENSIS CORP. (the
"Company") to purchase an aggregate of ________ shares of the Company's Common
Stock, par value $0.001 (the "Shares").
The undersigned hereby tenders cash, cash equivalent or a promissory note
in a form acceptable by the Company in the amount of $______ per share
multiplied by __________, the number of Shares he is purchasing at this time,
for a total of $_____________, which constitutes full payment of the total
Exercise Price thereof.
INSTRUCTIONS FOR REGISTRATION OF SHARES
IN COMPANY'S TRANSFER BOOKS
Name: ____________________________________
(Please typewrite or print in block letters)
Address:____________________________________
____________________________________
Signature:__________________________________
Accepted by THERMOGENESIS CORP.:
By: ____________________________
____________________________
Name
____________________________
Title
