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Exhibit 4.3
EMPYREAN DIAGNOSTICS LTD.
(the "Company")
STOCK OPTION PLAN
This stock option plan (the "Plan") is adopted in consideration of services
rendered and to be rendered by key personnel and consultants to Empyrean
Diagnostics Ltd., its subsidiaries and affiliates.
1. DEFINITIONS
The terms used in this Plan shall, unless otherwise indicated or required by the
particular context, have the following meanings:
Board: The Board of Directors of Empyrean Diagnostics Ltd.
Common Stock: No par value common stock of Empyrean
Diagnostics Ltd.
Company: Empyrean Diagnostics Ltd., a corporation continued
into the State of Wyoming, and any successors in
interest by merger, operation of law, assignment
or purchase of all or substantially all of the
property, assets or business of the Company.
Date of Grant: The date on which an Option (see below) is granted
under the Plan.
Employee: A bona fide employee of the Company, subsidiary or
management company providing services to the
Company, other than investor relations.
Fair Market Value: The Fair Market Value of the Option
Shares. Such Fair Market Value as of the date
shall be reasonably determined by the Board;
provided, however, that if there is a public
market for the Common Stock, the Fair Market Value
of the Option Shares shall be determined in
accordance with the following principles.
(i) If the Common Stock is traded on a stock
exchange on the date in question, the Fair
Market Value of the Option Shares will be
equal to the closing bid price of Common
Stock on the principal exchange on which
the Common Stock is then trading as
reported by such exchange, or if the
Common Stock
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is not traded on such date, then on
the next preceding trading day during
which a sale occurred;
(ii) If the Common Stock is traded
over-the-counter on the Nasdaq National
Market on the date in question, then the
Fair Market Value of the Option Shares
will be equal to the last sales price of
the; Common Stock as reported by Nasdaq,
or if the Common Stock is not traded on
such date, then on the next preceding
trading day;
(iii) If the Common Stock is traded
over-the-counter on the Nasdaq SmallCap
Market, or on the NASD Electronic Bulletin
Board or Pink Sheets on the date in
question, the Fair Market Value of the
Option Shares will equal the mean between
the; closing representative bid and asked
price for the Common Stock on such date as
reported by Nasdaq or the NASD (as the
case may be), or if the Common Stock is
not traded on such date, then on the mart
preceding trading day;
(iv) If the Common Stock is not publicly traded
on an exchange and is not traded
over-the-counter on Nasdaq or the
Electronic Bulletin Board or pink Sheets,
the Fair Market Value of the Option Shares
shall be determined by the Board acting in
good faith on such basis as it deems
appropriate;
(v) If the Option Shares are unregistered
securities (whether or not considered
"restricted stock" within the meaning of
Rule 144 of the Securities Act), or if the
Option Shares are subject to conditions,
risk of forfeiture, or repurchase rights
or rights of first refusal which impair
its value, then the Fair Market Valve of
the Option Shares shall be subject to such
discount to reflect such impairments to
value as the Board of Directors may, in.
its sole discretion and without obligation
to do so, determine to be appropriate;
provided, however, no discount shall be
given with respect to arty impairments in
value attributable to any restrictions
which, by its terms, will never lapse; and
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(vi) Anything in subsections (i) through (v)
above to the contrary notwithstanding, in
no circumstances shall the Fair Market
Value of the Option Shares be less than
their par value.
Incentive Stock
Option: An Option described in section 9 hereinbelow
intended to qualify under section 422 of. the
United States Internal Revenue Code of 1986, as
amended.
Key Person: A person designated by the Board upon whose
judgment, initiative and efforts the Company or a
Related Company may rely, who shall include any
director, officer, full-time employee or
consultant of the Company. A Key Person may
include a corporation that is wholly-owned and
controlled by a Key Person who is eligible for an
Option grant, but in no case may the Company grant
an option to a legal entity other than an
individual. In addition, any such wholly-owned and
controlled corporation of a Key Person must
provide both the Company and any exchange or
over-the-counter market which may be applicable to
the Company with a certification and undertaking
agreeing not to effect or permit any transfer of
ownership or option of shares of such corporation
nor to issue further shares of any class in the
corporation to any other individual or entity
during the period in which the Option remains
outstanding.
Option: The rights granted to a Key Person to purchase
Common Stock pursuant to the terms and conditions
of an Option Agreement (see hereinbelow).
Option Agreement: The written agreement (and any amendment or
supplement thereto) between the Company and a Key
Person designating the terms and conditions of an
Option and attached hereto as Schedule "A".
Option Shares: The shares of Common Stock underlying an Option
granted to a Key Person.
Optionee: A Key Person who has been granted an Option.
Purchase Price: The exercise price of the Option Shares.
Related Company: Any subsidiary or affiliate of the Company. The
determination of whether a corporation is a
Related
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Company shall be made without regard to whether
the entity or the relationship between the entity
and the Company now waists or comes into existence
hereafter.
2. PURPOSE AND SCOPE
(a) The purpose of the Plan is to advance the interests of the
Company and its stockholders by affording Key Persons, upon
whose judgment, initiative and efforts the Company may rely
for the successful conduct of their businesses an opportunity
for investment in the Company and the incentive advantages
inherent in stock ownership in the Company.
(b) This Plan authorizes the Board to grant Options to purchase
shares of Common Stock to Key Persons selected by the Board
while considering criteria such as employment position or
other relationship with the Company, duties and
responsibilities, ability, productivity, length of service or
association, morale, interest in the Company, recommendations
by supervisors and other matters.
3. ADMINISTRATION OF THE PLAN
The plan shall be administered by the Board. The Board shall have; the authority
granted to it under this section. and under this section and under each other
section of the Plan.
In accordance with and subject to the provisions of the Plan, the Board shall
select the Optionees, shall determine: (i) the number of shares of Common Stock
to 64 subject to each Option, however, in no event may the maximum number of
shares reserved for any one individual exceed 5% of the issued and outstanding
share capital of the Company; (ii) the time at which each Option is to be
granted, (iii) the Purchase Price for the Option Shares, based on the Fair
Market Value; (iv) the Option period; and (v) the manner in which the Option
becomes exercisable. In addition, the Board shall fix such other terms of each
Option as it may deem necessary or desirable. The Board may determine the form
of Option Agreement to evidence each Option.
The Board from time to time may adopt such rules and regulations for carrying
out the purposes of the Plan as it may deem proper and in the best interests of
the Company subject to the rules and policies of any exchange or
over-the-counter market which is applicable to the Company.
The Board may from time to time make such changes in and additions to the Plan
as it may deem proper, subject to the prior approval of the Vancouver Stock
Exchange and in the best interests of the Company; provided, however, that no
such change or addition shall impair any Option previously granted under the
Plan, if the shares are not listed on any exchange, then such approval is not
necessary.
Each determination, interpretation or other action made or taken by the Board
shall be final., conclusive and binding on all persons, including without
limitation, the Company, the
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stockholders, directors, officers arid employees of the Company and the Related
Companies, and the Optionees and their respective successors in interest.
4. THE COMMON STOCK
The Board is authorized to appropriate, grant options, issue and sell for the
purposes of the Plan, a total number of shares of the Company's Common Stock not
to exceed 3,855,690, or the number and kind of shares of stock or other
securities which in accordance with section 10 shall be substituted for the
shares or into which such shares shall be adjusted (representing 20% of the
Company's outstanding shades of the Common Stock as at August 25, 1997. All or
any unsold shares subject to an Option that for any reason expires or otherwise
terminates may again be made subject to Options under the Plan.
5. ELIGIBILITY
(a) Options will be granted only to Key Persons. Key Persons may
hold more than one Option under the Plan and may hold Options
under the Plan and options granted pursuant to other plans or
otherwise.
(b) Options granted and the amendment of any existing Options
granted to and exercised by Insiders of the Company, as that
term is defined in the Securities Act (British Columbia),
shall be subject to shareholder approval.
6. OPTION PRICE
The Board shall determine the Purchase Price for the Option Shares.
7. DURATION AND EXERCISE OF OPTIONS
(a) The option period shall commence on the Date of Grant and
shall be up to three (3) years in length subject to the
limitations in this section 7 and the Option Agreement.
(b) Unless otherwise agreed by the Board and approved by the
Vancouver Stock Exchange, no Option shall be exercised for a
period of six months following the Date of Grant, Thereafter
the Option Shares may be exercised, the rate of 25%
bi-annually, on a cumulative basis during a vesting period of
two years; provided, however, that this limitation shall not
apply to the exercise of are Option pursuant to the terms of
the relevant Option Agreement upon the Optionee's death.
(c) During the lifetime of the Optionee, the Option shall be;
exercisable only by the Optionee. Subject to the limitations
in paragraph (b) above, any Option vested and hold by an
Optionee at the time of his death may be exercised by his
estate within one year of his death or such longer period as
the Board may determine.
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(d) In the case of an Optionee who is an employee of the Company or a
Related Company, if, for any reason (other than death or
termination for cause: by the Company or a Related Company), the
Optionee ceases to be employed by either the Company or a Related
Company, any option held by the Optionee at the time his
employment ceases may, at the sole discretion of the Board, be
exercised within 30 days after the date that his employment
ceased (subject to the limitations at paragraph (a) above), but
only to the extent that the option was exercisable according to
its terms on the date the Optionee's employment ceased. After
such 30 day period, any unexercised portion of an Option shall
expire.
(e) In the case; of an Optionee who is an employee of the Company
or a Related Company, if the Optionee's employment by the
Company or a Related Company ceases due to the Company's
termination of such Optionee's employment for cause, any
portion of any Option held by the Optionee which have not been
exercised or vested, shall immediately expire. For this
purpose "cause" shall mean conviction of a felony or continued
failure, after notice, by the Optionee to perform fully and
adequately the Optionee's duties.
(f) Each Option shall be exercised in whole or in part by
delivering to the office of the Treasurer of the Company
written notice of the number of shares with respect to which
the Option is to be exercised and by paying in full the
Purchase Price for the Option Shares purchased as set forth in
Section 8; provided, that an Option may not be exercised in
part unless the Purchase Price for the Option Shares purchased
is at least $1,000.00.
8. PAYMENT FOR OPTION SHARES
In the case of all Option exercises, the Purchase Price shall be paid in cash or
certified funds upon exercise of the Option.
9. INCENTIVE STOCK OPTIONS
(a) The Board may, from time to time, and subject to the provisions of
this Plan and such other terms and conditions as the Board may
prescribe, grant to any Key Person who is an employee eligible to
receive Options one, or more Incentive Stock Options to purchase
the number of shares of Common Stock allotted by the Board.
(b) The Purchase Price per share of Common Stock deliverable upon the
exercise of an Incentive Stock Option.
(c) The Option term of each Incentive Stock Option shall be determined
by the Board and shall be set forth in the Option Agreement,
provided that the Option term shall commence no sooner than from
the Date of Grant and shall terminate no
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later than 5 years from the Date of Grant and shall be subject to
possible early termination as set forth in Section 7 hereinabove.
(d) Any award of incentive Stock Options shall be structured such that
the aggregate Fair Market Value of the shares of Common) Stock
with respect to which the Incentive Stock Options are exercisable
for the first time by an. Option holder during any calendar year
under all plans of the Company and Related Companies shall not
exceed $500,000.00.
10. CHANGE IN STOCK, ADJUSTMENTS, ETC.
In the event that each of the outstanding shares of Common Stock (other than
shares held by dissenting stockholders which are not changed or exchanged)
should be changed into, or exchanged for, a different number or kind of shares
of stock or other securities of the Company, or, if .further changes or
exchanges of any stock or other securities into which the Common Stock shall
have been changed, or for which it shall have been exchanged, shall be made
(whether by reason of merger, consolidation, reorganization, recapitalization,
stock dividends, reclassification, split-up, combination of shares or
otherwise), then there shall be substituted for each share of Common Stock that
is subject to the Plan, the number and kind of shares of (stock or other
securities into which each outstanding share of Common Stock (other than shares
held by dissenting stockholders which. arc not changed or exchanged) shall be so
changed or for which each outstanding share of Common Stock (other than shares
hold by dissenting stockholders) shall be; so changed or for which each such
share shall be exchanged. Any securities so substituted shall be subject to
similar successive adjustments.
In the event of any such changes or exchanges, the Board shall determine
whether, in order to prevent dilution or enlargement of rights, an adjustment
should be made in the number, kind, or option price of the shares or other
securities then subject to an Option or Options granted pursuant to the Plan and
the Board shall make any such adjustment, and such adjustments shall be made and
shall be effective and binding for all purposes of the Plan.
11. RELATIONSHIP OF EMPLOYMENT
Nothing contained in the Plan, or in any Option granted pursuant to the Plan,
shall confer upon any Optionee any right with respect to employment by the
Company, or interfere in any way with the right of the Company to terminate the
Optionee's employment or services at any time.
12. NON-TRANSFERABILITY OF OPTION
No Option granted under the Plan shall be transferable by the Optionee, either
voluntarily or involuntarily, except by will or the laws of descent and
distribution, and any attempt to do so shall be null and void.
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13. RIGHTS AS A STOCKHOLDER
No person shall have any rights as a stockholder with respect to any share
covered by an Option until that person shall become the holder of record of such
share and, except as provided in Section 10, no adjustments shall be made for
dividends or other distributions or other rights as to which there is an earlier
record date.
14. SECURITIES LAWS REQUIREMENTS
No Option Shares shall be issued unless and until, in the opinion of the
Company, any applicable registration requirements of the Securities Act (British
Columbia) (the "Act") and the Securities Act of 1933, as amended (the
"Securities Act") any applicable listing requirements of any securities exchange
on which stock of the same class is then listed, and any other requirements of
law or of any regulatory bodies having jurisdiction over such issuance and
delivery, have been fully complied with. Each Option and each Option Share
certificate may be imprinted with legends reflecting federal and state
securities laws restrictions and conditions, and the: Company may comply
therewith and issue "stop transfer" instructions to its transfer agent and
registrar in good faith without liability.
15. DISPOSITION OF SHARES
Each Optionee, as a condition of exercise, shall represent, warrant arid agree,
in a form of written certificate approved by the Company, as follows: (i) that
all Option Shares arc being acquired solely for his own account and not on
behalf of any other person or entity; (ii) that no Option Shares will be sold or
otherwise distributed in violation of the Act or the Securities Act, or any
other applicable federal or state securities laws; (iii) that if the Optionee is
subject to reporting requirements under Section 16(a) of the Securities Exchange
Act of 1934, as amended, the Optionee will (a) furnish the Company with a copy
of each Form 4 filed by the Optionee, and (b) timely tile all reports required
under the federal securities laws; and (iv) that the; Optionee will report all
sales of Option Shares to the Company its writing on a form prescribed by the
Company.
16. EFFECTIVE DATE OF PLAN; TERMINATION DATE OF PLAN
The Plan shall be deemed effective as of August 25, 1997. The Plan shall
terminate at midnight on August 24, 1999 except as to Options previously granted
and outstanding under the Plan at that time. No Options shall be granted after
the date on which the Plan terminates. The Plan may be abandoned or terminated
at any earlier time by the Board, except with respect to any Options then
outstanding under the Plan.
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17. OTHER PROVISIONS
The following provisions are also in effect under the Plan:
(a) The use of a masculine gender in the Plan shall also include
within its meaning the feminine, and the singular may include the
plural, and the plural may include the singular, unless the
context clearly indicates to the contrary;
(b) Any expenses of administering the Plan shall be borne by the
Company;
(c) This Plan shall be construed to be in addition to any and all
other compensation plans or programs. The adoption of the Plan by
the Board shall not be construed as creating any limitations on
the power or authority of the Board to adopt such other additional
incentive or other compensation arrangements as the Board may deem
necessary or desirable; and
(d) The validity, construction, interpretation, administration and
effect of the Plan and of its rules and regulations, and the
rights of any and all personnel having or claiming to have an
interest therein or thereunder shall tic, governed by and
determined exclusively and solely in accordance with the laws of
the State of Wyoming.
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SCHEDULE "A"
STOCK OPTION CERTIFICATE
EMPYREAN DIAGNOSTICS LTD.
[To be prepared by the Company and signed by the Recipient]
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED WITH, OR
APPROVED OR DISAPPROVED BY, THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE OR TERRITORIAL SECURITIES REGULATORY AGENCY, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE OR TERRITORIAL SECURITIES REGULATORY AGENCY
REVIEWED OR PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING CONTEMPLATED BY
THIS STOCK OPTION CERTIFICATE OR THE ACCURACY OR ADEQUACY OF ANY OFFERING
MATERIALS, INCLUDING THE COMPANY'S STOCK OPTION PLAN. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE SPECULATIVE AND INVOLVE A
HIGH DEGREE OF RISK AND SUBSTANTIAL AND IMMEDIATE DILUTION. THERE IS NO PUBLIC
MARKET FOR THE SALE OF THESE SECURITIES BY THE RECIPIENT. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED UNLESS REGISTERED OR QUALIFIED, OR THE RECIPIENT
PROVIDES THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, OR ITS
LEGAL COUNSEL, THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED BY REASON
OF AN EXCEPTION OR OTHERWISE. AS A RESULT, THESE SECURITIES ARE SUITABLE ONLY
FOR CERTAIN SOPHISTICATED AND QUALIFIED INVESTORS WHO CAN BEAR THE FINANCIAL
RISK OF AN INVESTMENT IN THESE SECURITIES FOR AN INDEFINITE PERIOD OF TIME.
================================================== =========================================================
Name of Recipient............................ _______________________________________________
Legal Address/Domicile of Recipient.......... _______________________________________________
Citizenship of Recipient..................... [ ] United States [ ] Other
Number of Option Shares......................
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Option Price per Option Share................
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Classification of Option..................... [ ] Non-Qualified Option [ ] Incentive Option
Vesting...................................... [ ] Fully Vested [ ] Subject to Vesting
(see section 3)
Option Expiration Date.......................
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Option Effective Date........................
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U.S. Federal Exemption to be Relied Upon at the [ ] Rule 701 [ ] Regulation D
Time of Grant or Exercise (as the case may be) [ ] Other___________ [ ] Rule 504
___________ [ ] Rule 505
[ ] Rule 506
Blue Sky Exemption to be Relied Upon at the Time [ ] Section 44-1844(14) [ ] Other ____________
of Grant or Exercise (as the case may be).... [ ] ________________ [ ] __________________
================================================== =========================================================
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This Stock Option Certificate is entered into between Empyrean Diagnostics Ltd.,
a Wyoming corporation (the "Company"), whose principal executive office is
located at 2238 West Lone Cactus Drive, Suite 200, Phoenix, Arizona 85027, and
the Recipient identified above (the "Recipient"), pursuant to that certain Stock
Option Plan deemed effective August 25, 1997 as amended on April 27, 1998 (the
"Plan"), as such plan may be amended and/or restated from time to time. Subject
to the terms of this Stock Option Certificate, the; Recipient's rights to
purchase the Option Shares are governed by the Plan, the terms of which are
incorporated herein by this reference. Defined terms in this Stock Option
Certificate shall have the same meaning as defined terms in the Plan.
1. GRANT OF OPTION: This Stock Option Certificate certifies that the
Company has granted to the Recipient, pursuant to the terms of the Plan, a stock
option (the "Option") to purchase, in whole or in part, the number of Option
Shares designated above (collectively and severally, the "Option Shares"),
representing shares of the common stock, no par value (the "Common Stock") of
the Company, at the exercise or Option. Price per Option Share designated above
(the "Option Price"), subject to the following terns and conditions.
2. CAPACITY OF RECIPIENT: This Option is granted to the Recipient in the;
following capacity:
(i) [ ] An Employee who is an Executive Officer* of the Company
and/or its Affiliates.
(ii) [ ] An Employee other than an Executive Officer* of the
Company and/or its Affiliates.
(iii) [ ] A Director of the Company and/or its Affiliates.
(iv) [ ] A Consultant to the Company and/or its Affiliates.
* An "Executive Officer" is defined as the president, any vice
president in charge of a principal business unit, division or
function (such as sales, administration or finance), any other
officer who performs a policy making function, or any other
person who performs similar policy makings functions for the
Company.
3. VESTING CONDITIONS: If the Option Shares are subject to vesting then,
subject to section 7(b) of the Plan, the Option Shares will be subject to
vesting based upon continued performance of services in the capacity indicated
above as follows:
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Cumulative Vested
Vested Number of Percentage of Option
Date Option Shares Shares
---- ---------------- --------------------
25%
25%
25%
25%
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Total 100%
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4. EXPIRATION OF OPTION: The right to exercise the Options granted by this
Stock Option Certificate shall expire and be null and void ab initio and of no
further force or effect to the extent not exercised by 5:00 p.m., (Phoenix
Time), on the Option Expiration Date designated above (the "Option Expiration
Date"); provided, however, if the Option Shares arc subject to vesting by reason
of the vesting designation set forth in section 3 of this Sock Option
Certificate, then pursuant to section 7(d) of the Plan, in the event of
termination of Recipient, the expiration date shall be accelerated to thirty
(30) days after the effective date of termination of Recipient.
NOTE: SHOULD THE RECIPIENT FAIL TO EXERCISE THIS OPTION (TO THE EXTENT
PERMITTED BY ITS TERMS) THE RECIPIENT SHALL NOT BE ENTITLED TO
THE INCOME TAX BENEFITS OF SECTION 422 OF THE CODE (ASSUMING THIS
OPTION IS AN INCENTIVE OPTION), AND THIS OPTION, AND THE GRANT
AND EXERCISE THEREOF, SHALL BE TREATED, FOR INCOME TAX PURPOSES,
AS IF IT WERE A NON-QUALIFIED OPTION.
5. DELIVERIES: MANNER OF EXERCISE AND PAYMENT: This Option shall be
exercised by delivery of the following to the Secretary of the Company at the
Company's principal executive offices:
(A) STOCK OPTION CERTIFICATE: This Stock Option Certificate, duly
signed by the Recipient.
(B) NOTICE: A Notice of Exercise of Stock Option in the form attached
to the underlying Stock Option Certificate, duly signed by the
Recipient or other Person then entitled to exercise the Option or
portion thereof, stating the number of Option Shares to be
purchased by exercise of the associated Option.
(C) PAYMENT: Full payment for the Option Shares to be purchased in
immediately available funds in U.S. dollars.
(D) PROOF OF AUTHORITY: In the event that the Option or portion
thereof shall be exercised by any person other than the Recipient
pursuant to section 7(c) of the Plan, appropriate proof of the
right of such person or persons to exercise the Option or portion
thereof.
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6. TRANSFER OF OPTION
(A) EXERCISE: Options may only be exercised by the original Recipient
thereof or, to the extent a Transfer is permitted and has been
consummated pursuant to subsection 6(b) below, by a permitted
transferee of such Options.
(B) TRANSFER: Options may not be Transferred by a Recipient except
upon and following the death of a Recipient, but only to the
Recipient's successors as provided in section 7(e) of the Plan.
Any Transfer or exercise of an Option so Transferred in violation of this
section 6 shall be null and void ab initio and of no further force and effect.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS: The Recipient hereby
represents, warrants and covenants to the Company, each of which is deemed to be
a separate representation, warranty and covenant, whichever the case may be,
that:
(A) DOMICILE: The Recipient's permanent legal residence and domicile,
if the Recipient is an individual, or permanent legal executive
offices and principal place of business, if the Recipient is an
Entity, was and is in the State or territory designated above at
both the time of the "offer" and the time of the "sale" of this
Option and the Option Share to the Recipient.
(B) AGE: The Recipient, if a natural person, is age eighteen (18) or
over.
(C) RECEIPT AND REVIEW OF PLAN AND PLAN SUMMARY: The Recipient has
received a copy of the Plan and has read and understood the Plan.
(D) RESTRICTIONS ON TRANSFERABILITY OF OPTION SHARES: The Recipient
has burn informed and understands and agrees as follows: (i)
there are substantial restrictions on the transferability of the
Option Shares as set forth in the Plan, (ii) as a result of such
restrictions, (1) it may not be possible; for the Recipient to
sell or otherwise liquidate the Option Shares in the case of
emergency and/or other need, and the Recipient must therefore be
able to hold the; Option Shares until the lapse of said
restrictions, (2) the Recipient must have adequate means of
,providing for the Recipient's current needs and personal
contingencies, and (3) the Recipient must have no need for
liquidity in an investment in the Option Shares; and (iii) the
Recipient has evaluated the Recipient's financial resources and
investment position in view of the foregoing; and the Recipient
is able to bear the economic risk of an investment in the Option
Shares.
Each representation, warranty and covenant of. the Recipient shall be deemed
made at the time of grant of this Option, shall be deemed remade at any time the
Recipient exercises this Option, and shall survive the date of closing with
respect to the exercise of the last Option hereunder,
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8. MISCELLANEOUS
(A) PREPARATION OF STOCK OPTION CERTIFICATE; COSTS AND EXPENSES: This
Stock Option Certificate was prepared by the Company solely on
behalf of the Company. Each party acknowledges that: (i) he, she
or it had the advice of, or sufficient opportunity to obtain the
advice; of, legal counsel separate and independent of legal
counsel for any other party hereto; (ii) the terms of the
transaction contemplated by this Stock Option Certificate are
fair and reasonable to such party; and (iii) such party has
voluntarily entered into the transaction contemplated by this
Stock Option Certificate without duress or coercion. Each party
further acknowledges such party was not represented by the legal
counsel of any other party hereto in connection with the
transaction contemplated by this Stock, Option Certificate, nor
was such party under any belief or understanding that such legal
counsel was representing his, her or its interests. Except as
expressly se forth in this Stock Option Certificate, each party
shall pay all legal and other costs and expenses incurred or to
be incurred by such party in negotiating and preparing this Stock
Option Certificate; in performing due diligence or retaining
professional advisors; in performing any transactions
contemplated by this Stock Option Certificate; or in complying
with such party's covenants, agreements and conditions contained
herein. Each party agrees that no conflict, omission or ambiguity
in this Stock Option Certificate, or the interpretation thereof,
shall be presumed, implied or otherwise construed against the
Company or any other party to this Stock Option Certificate on
the basis that such party was responsible for drafting this Stock
Option Certificate.
(B) COOPERATION: Each party agrees, without further consideration, to
cooperate and diligently perform any further acts, deeds and
things, and to execute and deliver any documents that may be
reasonably necessary or otherwise reasonably required to
consummate, evidence, confirm and/or carry out', the intent and
provisions of this Stock Option Certificate, all without undue
delay or expense.
(C) INTERPRETATION
(I) SURVIVAL: All representations and warranties made; by any
party in connection with any transaction contemplated by
thus Stock Option Certificate shall, irrespective of any
investigation made by or on behalf of any other party
hereto, survive the execution and delivery of this Stock
Option Certificate. and the performance or consummation of
any transaction described in this Stock Option Certificate.
(II) ENTIRE AGREEMENT/NO COLLATERAL REPRESENTATIONS: Each party
expressly acknowledges and agrees that this Stock Option
Certificate, together with and subject to the Plan and the
Plan Summary: (1) is the final, complete and exclusive
statement of the agreement of the parties with respect to
the subject matter hereof; (2) supersedes any prior or
contemporaneous
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agreements, proposals, commitments, guarantees, assurances,
communications, discussions, promises, representations,
understandings, conduct, acts, courses of dealing,
warranties, interpretations or terms of any kind, whether
oral or written (collectively and severally, the "prior
agreements"), and that any such prior agreements are of no
force or effect except as expressly set forth herein; and
(3) may not be varied, supplemented or contradicted by
evidence of prior agreements, or by evidence of subsequent
oral agreements. No prior drafts of this Stock Option
Certificate, and no words or phrases from any prior drafts,
shall be admissible into evidence in any action or suit
involving this Stock Option Certificate.
(III) AMENDMENT; WAIVER; FORBEARANCE: Except as expressly
provided otherwise herein, neither this Stock Option
Certificate nor arty of the terms, provisions, obligations
or rights contained herein may be amended, modified,
supplemented, augmented, rescinded, discharged or terminated
(other than by performance), except as provided in the Plan
or by a written instrument or instruments signed by all of
the parties to this Stock Option Certificate. No waiver of
any breach of any term, provision or agreement contained
herein, or of the performance of any act or obligation under
this Stock Option Certificate, or of any extension of time
for performance; of any such act or obligation, or of any
right granted under this Stock Option Certificate, shall be
effective and binding unless such waiver shall be in a
written instrument or instruments signed by each party
claimed to have given or consented to such waiver and each
party affected by such waiver. Except to the extent that the
party or parties claimed to have given or consented to a
waiver may have otherwise agreed in writing, no such waiver
shall be deemed a waiver or relinquishment of arty other
term, provision, agreement, act, obligation or right granted
under this Stock Option Certificate, or any preceding or
subsequent breach thereof. No forbearance by a party to seek
a remedy for any noncompliance or breach by another party
hereto shall be deemed to be a waiver by such forbearing
party of its rights' and remedies with respect to such
noncompliance or breach, unless such waiver shall be in a
written instrument or instruments signed by the forbearing
party.
(IV) REMEDIES CUMULATIVE: The remedies of each party under this
Stock Option Certificate are cumulative and shall not
exclude any other remedies to which such party may be
lawfully entitled, at law or in equity.
(V) SEVERABILITY: If any term or provision of this Stock Option
Certificate or the application thereof to any person or
circumstance shall, to any extent, be determined to be
invalid, illegal or unenforceable under present or future
laws, that, and in that event: (1) the performance of the;
offending term or provision (but only to the extent its
application is invalid, illegal or
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unenforceable) shall be excused as if it had never been
incorporated into this Stock Option Certificate, and, in
lieu of such excused provision, there shall be added a
provision as similar in terms and amount to such excused
provision as may be possible and be legal, valid and
enforceable; and (2) the remaining part of thus Stock Option
Certificate (including the application of the offending term
or provision to persons or circumstances other than those as
to which it is held invalid, illegal or unenforceable) shall
riot be affected thereby, and shall continue in full force
and effect to the fullest extent provided by law.
(VI) PARTIES IN INTEREST: Notwithstanding anything else; to the
contrary herein, nothing in this Stock Option Certificate;
shall confer any rights or remedies under or by reason of
this Stock Option Certificate on any persons other than the
parties hereto and their respective successors and assigns,
if any, as may be permitted under the Plan or hereunder, nor
shall anything in this Stock Option Certificate relieve or
discharge the obligation or liability of any third person to
any party to this Stock Option Certificate, nor shall any
provision give any third person any right of subrogation or
action over or against any party to this Stock Option
Certificate.
(VII) NO RELIANCE UPON PRIOR REPRESENTATION: Each party
acknowledges that: (i) no other party has made any oral
representation or promise which would induce them prior to
executing this Stock Option Certificate to change their
position to their detriment, to partially perform, or to
part with value in reliance upon such representation or
promise; and (ii) such party has not so changed its
position, performed or parted with value prior to the time
of the execution of this Stock Option Certificate, or such
party has taken such action at its own risk.
(VIII) HEADINGS; REFERENCES; INCORPORATION; "PERSON"; GENDER;
STATUTORY REFERENCES: The headings used in this Stock Option
Certificate are for convenience and reference purposes only,
and shall not be used in construing, or interpreting the
scope or intent of this Stock Option Certificate or any
provision hereof. References to this Stock Option
Certificate shall include all amendments or renewals
thereof. All cross-references in this Stock Option
Certificate, unless specifically directed to another
agreement or document, shall be construed only to refer to
provisions within this Stock Option Certificate, and shall
not be construed to be referenced to the overall transaction
or to any other agreement or document. Any Exhibit
referenced in this Stock Option Certificate shall be
construed to be incorporated in this Stock Option
Certificate by such reference. As used in this Stock Option
Certificate, the term "person" is defined in its broadest
sense as any individual, entity or fiduciary who has legal
standing to enter into this Stock Option Certificate such
as, by way
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of example and not limitation, individual or natural persons
and trusts. As used in this Stock Option Certificate, each
gender shall be deemed to include the other gender,
including neutral genders appropriate for entities, if
applicable, and the singular shall be doomed to include the
plural, and vice versa, as the context requires. Any
reference to statutes or laws will include all amendments,
modifications, or replacements of the specific sections and
provisions concerned.
(D) ENFORCEMENT
(I) APPLICABLE LAW: This Stock Option Certificate and the rights
and remedies of each party arising out of or relating to
this Stock Option Certificate (including, without
limitation, equitable remedies) shall (with the exception of
the Securities Act and the Blue Sky Laws) be solely governed
by, interpreted under, and construed and enforced in
accordance with the laws (without regard to the conflicts of
law principles) of the State of Arizona, as if this Stock
Option Certificate were made, and as if its obligations are
to be performed, wholly within the State of Arizona.
(II) CONSENT TO JURISDICTION; SERVICE OF PROCESS: Any "action or
proceeding" (as such term is defined below) arising out of
or relating to this Stock Option Certificate shall be filed
in and heard and litigated solely before the state courts of
Arizona located within the County of Maricopa, Each party
generally and unconditionally accepts the exclusive
jurisdiction of such courts and venue therein; consents to
the service of process in any such action or proceeding by
certified or registered mailing of the summons and complaint
in accordance with the notice provisions of this Stock
Option Certificate; and waives any defense or right to
object to venue in said courts based upon the doctrine of
"forum non conveniens." The term "action or proceeding" is
defined as any and all claims, suits, actions, hearings,
arbitrations or other similar proceedings, including appeals
and petitions therefrom, whether formal or informal,
governmental or non-governmental, or civil or criminal.
(III) WAIVER OF RIGHT TO JURY TRIAL: Each partly hereby waives
such party's respective right to a jury trial of any claim
or cause of action based upon or arising out of this Stock
Option Certificate. Each party acknowledges that this waiver
is a material inducement to each other party hereto to enter
into the transaction contemplated hereby; that each other
party has already relied upon this waiver in entering into
this Stock Option Certificate; and that each other party
will continue to rely on this waiver in their future
dealings. Each party warrants and represents that such party
has reviewed this waiver with such party's legal counsel,
and that such party has knowingly and voluntarily, waived
its jury trial rights following consultation with such legal
counsel.
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(E) SUCCESSORS AND ASSIGNS: All of the representations, warranties,
covenants, conditions and provisions of this Stock Option
Certificate shall be binding upon and shall inure to the benefit
of each party and such party's respective successors and
permitted assigns, spouses, heirs, executors, administrators, and
personal and legal representatives.
(F) NOTICES: Except as otherwise specifically provided in this Stock
Option Certificate, all notices, demands, requests, consents,
approvals or other communications (collectively and severally
called "notices") required or permitted to be given hereunder
shall be given in accordance with the notice provisions in the
Plan.
(G) COUNTERPARTS: This Stock Option Certificate may be =cited in
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument,
binding on all parties hereto. Any signature page of this Stock
Option Certificate may be detached from any counterpart of this
Stock Option Certificate and reattached to any other counterpart
of this Stock Option Certificate identical in form hereto by
having attached to it one or more additional signature pages.
WHEREFORE, the parties hereto have executed this Stock Option
Certificate in the City of Phoenix, State of Arizona, effective as of
the Option Effective Date first set forth above.
COMPANY:
EMPYREAN DIAGNOSTICS LTD.
a Wyoming corporation
By:
------------------------------
Stephen Hayter, President
RECIPIENT:**
- ----------------------------------------
** By execution hereof, the Recipient acknowledges prior receipt of the Stock
Option Plan.
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Attachment
to
Stock Option Certificate
NOTICE OF EXERCISE OF STOCK OPTION
[To be signed by the Recipient only upon exercise of Option]
TO: Secretary
Empyrean Diagnostics Ltd.
2238 West Lone Cactus Drive
Suite 200
Phoenix, AZ 85027
The undersigned, the holder of Options under that certain Stock Option
Certificate dated effective the _____ day of _______________, 1998 between
Empyrean Diagnostics Ltd., a Wyoming corporation (the "Company") and the
undersigned (the "Recipient"), hereby irrevocably elects, in accordance with the
terms and conditions of that certain Stock Option Plan deemed effective as of
August 27, 1997 as it may be amended from time to time (the "Plan"), under which
the Stock Option Certificate was granted, to exercise the undersigned's Option
under the Plan to purchase __________________________________________
(_________)(1) shares of the common stock, no par value ("Common Stock") of the
Company (collectively and severally, the "Option Shares"), for the aggregate
purchase price of _____________________
_______________________________________________ ($_____________)(2)
(1) Insert number of Option Shares as specified in the Stock
Option Certificate which are vested Option Shares (as defined
by the Plan) which the Recipient's Option to purchase.
(2) Number of Option Shares to be exercised as specified above
multiplied by the Option Price per share (_________ per
share).
The Recipient hereby remakes, reaffirms and reacknowledges all agreements,
representations, warranties and covenants set forth in the; Stock Option
Certificate as of the date of the Recipient's notice, all of which shall survive
the Closing with respect to the shares of Common Stock purchased hereby.
If the Option (i) is a Non-Qualified Option, (ii) was granted to the Recipient
as an Employee, and (iii) the Recipient is art Employee as of the date of his,
her or its exercise of the Option, the Recipient acknowledges that the Company
shall withhold from the compensation of the Recipient such amounts as may be
sufficient to satisfy any federal, state and/or local withholding tax
requirements incident to such exercise and the Recipient shall remit to the
Company any additional amounts which may be required.
The Recipient hereby acknowledges that the following legend (or any variation
thereof determined appropriate by the Company) will be placed on the share
certificate or certificates for the Option Shares to comply with applicable
federal, state or territorial securities laws.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN (1)
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
IN REFERANCE UPON AN EXEMPTION FROM REGISTRATION AFFORDED BY SUCH ACT
INCLUDING, WITHOUT LIMITATION, RULE 701 TO SECTION 3(b) OF THE
SECURITIES ACT OF 1933, OR (2) REGISTERED OR QUALIFIED, AS THE CASE MAY
BE, UNDER THE SECURITIES LAWS OF ANY STATE OR TERRITORY OF THE UNITED
STATES WHICH MAY BE APPLICABLE, IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION OR QUALIFICATION, AS THE CASE MAY BE, AFFORDED BY SUCH
STATE OR TERRITORIAL SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR THE HOLDER'S OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW FOR RESALE OR DISTRIBUTION. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED UNLESS (A) THEY HAVE BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 AS WELL AS UNDER THE SECURITIES
LAWS OF ANY STATE OR TERRITORY OF THE UNITED STATES AS MAY THEN BE
APPLICABLE, OR (B) THE TRANSFER AGENT (OR THE COMPANY IF THEN ACTING AS
ITS TRANSFER AGENT) IS PRESENTED WITH EITHER A WRITTEN OPINION
SATISFACTORY TO COUNSEL FOR THE COMPANY OR A NO-ACTION OR INTERPRETIVE
LETTER FROM THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION AND
ANY APPLICABLE STATE OR TERRITORIAL SECURITIES REGULATORY AGENCY TO THE
EFFECT THAT SUCH REGISTRATION OR QUALIFICATION, AS THE CASE MAY BE,ITS
NOT REQUIRED UNDER THE CIRCUMSTANCES OF SUCH SALE OR TRANSFER.
------------------------------------------
Signature
------------------------------------------
Print Name
------------------------------------------
Address
------------------------------------------
Date
(SIGNATURE MUST CONFORM IN ALL RESPECTS TO NAME OF THE RECIPIENT,
UNLESS THE UNDERSIGNED IS THE RECIPIENT'S SUCCESSOR, IN WHICH CASE THE
UNDERSIGNED MUST SUBMIT APPROPRIATE PROOF OF THE RIGHT OF THE
UNDERSIGNED TO EXERCISE THE OPTION)
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