NON-QUALIFIED STOCK OPTION AWARD AGREEMENT UNDER THE CRYOPORT, INC. 2011 STOCK INCENTIVE PLAN
Exhibit 10.38
This Non-Qualified Stock Option Award Agreement (“Agreement”) is between CryoPort, Inc.
(“Company”) and (the “Optionee”), and is effective as of the
_____
day of
_____
, 20
_____
(“Grant Date”).
RECITALS
A. The Board of Directors of the Company (“Board”) has adopted the Plan to promote the
interests and long-term success of the Company and its shareholders by providing an incentive to
attract, retain and reward persons performing services for the Company and by motivating such
person to contribute to the continued growth and profitability of the Company.
B. The Compensation Committee (or any such committee designated by the Board) has approved the
granting of Non-Qualified Stock Options to the Optionee pursuant to Article 6 of the Plan.
C. To the extent not specifically defined in this Agreement, all capitalized terms used in
this Agreement shall have the meaning set forth in the Plan.
AGREEMENT
In consideration of the mutual covenants and conditions hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Optionee agree as follows:
1. Grant of Option. Subject to the terms of this Agreement and Article 6 of the Plan, the
Company grants to the Optionee the right and option to purchase from the Company all or any part of
an aggregate of
_____
shares of Stock (“Option”). The delivery of any document evidencing the
Option is subject to the provisions of Section 6.1(d) of the Plan. The Option granted under this
Agreement is not intended to be an “Incentive Stock Option” under Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”).
2. Purchase Price. The purchase price under this Agreement is $ per share of Stock,
as determined by the Committee, which shall not be less than the Fair Market Value of a
share of Stock on the Grant Date.
3. Vesting of Option. The Option shall vest and be exercisable according to the following
schedule:
[INSERT VESTING SCHEDULE HERE]
Nothwithstanding any other provision in this Agreement to the contrary, all Options shall
become fully vested and exercisable and all restrictions on outstanding Options shall lapse upon a
Change in Control.
4. Exercise of Option. This Option may be exercised, to the extent vested (under Section 3
above), in whole or in part at anytime before the Option expires by delivery of a written notice of
exercise (under Section 5 below) and payment of the purchase price. The purchase price may be paid
in cash or such other method permitted by the Committee under Section 6.1(c) of the Plan and
communicated to the Optionee before the date the Optionee exercises the Option.
5. Method of Exercising Option. Subject to the terms of this Agreement, the Option may be
exercised by timely delivery to the Company of written notice, which notice shall be effective on
the date received by the Company. The notice shall state the Optionee’s election to exercise the
Option and the number of underlying shares in respect of which an election to exercise has been
made. Such notice shall be signed by the Optionee, or if the Option is exercised by a person or
persons other than the Optionee because of the Optionee’s death, such notice must be signed by such
other person or persons and shall be accompanied by proof acceptable to the Company of the legal
right of such person or persons to exercise the Option.
6. Term of Option. The Option granted under this Agreement expires, unless sooner terminated,
ten (10) years from the Grant Date, through and including the normal close of business of the
Company on the tenth (10th) anniversary of the Grant Date (“Expiration Date”).
7. Termination of Employment.
(a) If the Optionee Terminates Employment for any reason other than death or Disability, the
Optionee may at any time within the 90-day period after the date of his or her Termination of
Employment exercise the Option to the extent that the Optionee was entitled to exercise the Option
at the date of termination, provided that in no event shall the Option be exercisable after the
Expiration Date.
(b) If the Optionee Terminates Employment by reason of his death or Disability the Option will
lapse on the earlier of (i) the Option’s expiration date, or (ii) one year after the date the
Participant Terminates Employment on account of Disability or death. The Option may be exercised
following the death or Disability of Optionee only if the Option was exercisable by Optionee
immediately prior to his/her death or Disability. In no event shall the Option be exercisable
after the Expiration Date.
8. Tax Withholding. Unless otherwise provided by the Committee prior to the vesting of
Options, the Optionee shall satisfy any federal, state, local or foreign employment or income taxes
due upon the vesting of Options (or otherwise) by having the Company withhold from those shares of
Stock that the Optionee would otherwise be entitled to receive, a number of shares having a Fair
Market Value equal to the minimum statutory amount necessary to satisfy the Company’s applicable
federal, state, local and foreign income and employment tax withholding obligations. Any such
withholding shall be subject to the provisions of applicable law and to any conditions the
Committee may determine to be necessary to comply with Rule 16b-3 or its successors under the
Exchange Act. In lieu of, and subject to, the above, the Committee may also permit the Optionee to
satisfy any federal, state, local, or foreign employment or income taxes due upon the vesting of
Options (or otherwise) by (i) personal check or other cash equivalent acceptable to the Company,
(ii) permitting the Optionee to execute a same day sale of Stock pursuant to procedures approved by
the Company, or (iii) such
other method as approved by the Committee, all in accordance with applicable Company policies
and procedures and applicable law.
2
9. Nontransferability. The Options granted by this Agreement shall not be transferable by the
Optionee or any other person claiming through the Optionee, either voluntarily or involuntarily,
except by will or the laws of descent and distribution or as otherwise provided by the Plan’s
Committee (See Article 13 of the Plan).
10. Continuation of Employment. This Agreement shall not be construed to confer upon the
Optionee any right to continue employment with the Company and shall not limit the right of the
Company, in its sole and absolute discretion, to terminate Optionee’s employment at any time.
11. Nonstatutory Stock Option. The Options granted hereunder are nonstatutory (non-qualified)
stock options, and are not “incentive stock options” pursuant to the Code.
12. Administration. This Agreement shall at all times be subject to the terms and conditions
of the Plan and the Plan shall in all respects be administered by the Committee in accordance with
the terms of and as provided in the Plan. The Committee shall have the sole and complete
discretion with respect to all matters reserved to it by the Plan and decisions of the majority of
the Committee with respect thereto and to this Agreement shall be final and binding upon the
Optionee and the Company. In the event of any conflict between the terms and conditions of this
Agreement and the Plan, the provisions of the Plan shall control.
13. Waiver and Modification. The provisions of this Agreement may not be waived or modified
unless such waiver or modification is in writing and signed by a representative of the Committee.
14. Adjustments. The number of shares of Stock issued to Optionee pursuant to this Agreement
shall be adjusted by the Committee pursuant to Section 5.3 of the Plan, in its discretion, in the
event of a change in the Company’s capital structure.
15. Securities Act. The Company shall not be required to deliver any shares of Stock pursuant
to the vesting of Options if, in the opinion of counsel for the Company, such issuance would
violate the Securities Act of 1933 or any other applicable federal or state securities laws or
regulations.
16. Voting and Other Shareholder Related Rights. The Optionee will have no voting rights or
any other rights as a shareholder of the Company with respect to any Options until the Options are
exercised by the Optionee.
17. Copy of Plan. By the execution of this Agreement, the Optionee acknowledges receipt of a
copy of the Plan.
18. Governing Law. This Agreement shall be interpreted and administered under the laws of the
State of Nevada.
19. Amendments. This Agreement may be amended only by a written agreement executed by the
Company and the Optionee.
3
MANY OF THE PROVISION OF THIS AWARD AGREEMENT ARE SUMMARIES OF SIMILAR PERTINENT PROVISIONS OF THE
PLAN. TO THE EXTENT THAT THIS AGREEMENT IS SILENT ON AN ISSUE OR THERE IS A CONFLICT BETWEEN THE
PLAN AND THIS AGREEMENT, THE PLAN PROVISIONS SHALL CONTROL.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized representative and Optionee has signed this Agreement, and this Agreement shall be
effective as of the day and year first written above.
| CryoPort, Inc. | ||||||||
| By: | ||||||||
| Name: | ||||||||
Date
|
Title: | |||||||
| Optionee | ||||||||
4
