SANGUI BIOTECH INTERNATIONAL,
INC.
AMENDED AND
RESTATED
LONG-TERM INCENTIVE
PLAN
Sangui Biotech International,
Inc., a Colorado corporation (the “Company”), hereby
adopts this Amended and Restated Long-Term Incentive Plan (the
“Plan”).
1.
Purposes of the Plan . The Board has adopted this
Plan with the intent, and directs that it be administered as
necessary, to attract and retain the best available personnel for
positions of substantial responsibility; provide additional
incentive to Employees, Directors and Consultants; and promote the
success of the Company’s business. Options granted under the
Plan may be Incentive Stock Options or Nonstatutory Stock Options,
as determined by the Administrator at the time of
grant. Stock Purchase Rights and Restricted Stock Units
may also be granted under the Plan.
2.
Definitions . As used herein, the following
definitions shall apply:
(a) “
Administrator ” means the Board or any of its
Committees as shall be administering the Plan in accordance with
Section 4 of the Plan.
(b) “
Applicable Laws ” means the requirements relating to
the administration of stock option plans under the corporate laws
of the State of Colorado, federal and state securities laws, the
Code, the regulations and policies of any stock exchange or
quotation system on which the Common Stock is listed or quoted, and
the Applicable Laws of any foreign country or jurisdiction where
Options, Stock Purchase Rights, or Restricted Stock Units are or
will be granted under the Plan.
(c) “
Board ” means the Board of Directors of the
Company.
(d) “
Code ” means the Internal Revenue Code of 1986, as
amended.
(e) “
Committee ” means a committee of Directors appointed
by the Board in accordance with Section 4 of the Plan.
(f) “
Common Stock ” means the common stock of the
Company.
(g) “
Company ” means Sangui Biotech International, Inc., a
Colorado corporation.
(h) “
Consultant ” means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services
to such entity, including, at the discretion of the Administrator,
an entity that is not a natural person.
(i) “
Director ” means a member of the Board.
(j) “
Disability ” means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(k) “
Employee ” means any person, including Officers and
Directors, employed by the Company or any Parent or Subsidiary of
the Company. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by
the Company(or the Parent or Subsidiary that employees the
Employee) or (ii) transfers between locations of the Company
or between the Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Stock Options, no
such leave may exceed 90 days, unless reemployment upon expiration
of such leave is guaranteed by statute or contract. If
reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, then three months following the 91st
day of such leave, any Incentive Stock Option held by the Optionee
shall cease to be treated as an Incentive Stock Option and shall be
treated for tax purposes as a Nonstatutory Stock
Option. Neither service as a Director nor payment of a
Director’s fee by the Company shall be sufficient to
constitute “employment” by the Company.
(l) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
(m) “
Fair Market Value ” means, as of any date, the value
of Common Stock determined as follows:
(i) if
the Common Stock is listed on any established stock exchange or a
national market system, including the Nasdaq National Market or the
Nasdaq SmallCap Market of the Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange
or system on the day of determination, as reported by Nasdaq,
The Wall Street Journal , or such other source as the
Administrator deems reliable;
(ii) if
the Common Stock is regularly quoted in an inter-dealer quotation
medium, but selling prices are not reported, the Fair Market Value
of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the day of
determination, as reported by such inter-dealer quotation medium,
The Wall Street Journal , or such other source as the
Administrator deems reliable; or
(iii) in
the absence of an established market for the Common Stock, the Fair
Market Value shall be determined in good faith by the
Administrator.
(n) “
Incentive Stock Option ” means an Option intended to
qualify as an incentive stock option within the meaning of Section
422 of the Code and the regulations promulgated
thereunder.
(o) “
Inside Director ” means a Director who is an
Employee.
(p) “
Nonstatutory Stock Option ” means an Option not
intended to qualify as an Incentive Stock Option.
(q) “
Notice of Grant ” means a written or electronic notice
evidencing certain terms and conditions of an individual Option,
Stock Purchase Right, or Restricted Stock Unit
grant. The Notice of Grant is part of, and subject to
the terms of, the Option Agreement or the Restricted Stock Units
Agreement as applicable.
(r) “
Officer ” means a person who is an executive officer
of the Company within the meaning of Section 16 of the Exchange Act
and the rules and regulations promulgated thereunder.
(s) “
Option ” means a stock option granted pursuant to the
Plan.
(t) “
Option Agreement ” means an agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject
to the terms and conditions of the Plan.
(u) “
Option Exchange Program ” means a program whereby
outstanding Options are surrendered in exchange for Options with a
lower exercise price.
(v) “
Optioned Stock ” means the Common Stock subject to an
Option or Stock Purchase Right.
(w) “
Optionee ” means the holder of an outstanding Option
or Stock Purchase Right granted under the Plan.
(x) “
Outside Director ” means a Director who meets the
definition of both a “Non-Employee Director” (as
defined in Rule 16b-3 of the Exchange Act) and “Outside
Director” (as defined in Section 162(m) of the
Code).
(y) “
Parent ” means a “parent corporation,”
whether now or hereafter existing, as defined in Section 424(e) of
the Code.
(z) “
Participant ” means a Service Provider to whom the
Company has granted a Restricted Stock Unit pursuant to Section 17
of the Plan.
(aa) “
Plan ” means this Amended and Restated Long-Term
Incentive Plan, as the same may be amended and restated from time
to time.
(bb) “
Restricted Stock ” means Shares of Common Stock
acquired pursuant to a grant of Stock Purchase Rights under Section
11 of the Plan.
(cc) “
Restricted Stock Purchase Agreement ” means a written
agreement between the Company and the Optionee evidencing the terms
and restrictions applying to stock purchased under a Stock Purchase
Right. The Restricted Stock Purchase Agreement is
subject to the terms and conditions of the Plan and the Notice of
Grant.
(dd) “
Restricted Stock Unit ” means a bookkeeping entry
representing a right granted to a Participant pursuant to Section
12 of the Plan to receive a share of Common Stock on a date
determined in accordance with Section 12 of the Plan and the
Participant’s Restricted Stock Units Agreement.
(ee) “
Restricted Stock Units Agreement ” means a written
agreement between the Company and a Participant who is granted
Restricted Stock Units under the Plan that contains the terms,
conditions and restrictions pertaining to the grant of the
Restricted Stock Units.
(ff) “
Rule 16b-3 ” means Rule 16b-3 of the Exchange Act or
any successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to the Plan.
(gg) “
Section 16(b) ” means Section 16(b) of the Exchange
Act.
(hh) “
Service Provider ” means an Employee, Director or
Consultant.
(ii) “
Share ” means a share of Common Stock, as adjusted in
accordance with Section 16 of the Plan.
(jj) “
Stock Purchase Right ” means the right to purchase
Common Stock pursuant to Section 11 of the Plan, as evidenced by a
Notice of Grant.
(kk) “
Subsidiary ” means a “subsidiary
corporation,” whether now or hereafter existing, as defined
in Section 424(f) of the Code.
3.
Stock Subject to the Plan . Subject to the
provisions of Section 16 of the Plan, the maximum aggregate number
of Shares on which Options may be granted and which may be sold on
the exercise of such Options and under Restricted Stock Purchase
Agreements under the Plan is 10,000,000 Shares. The
Shares may be authorized, but unissued, or reacquired Common
Stock. If an Option or Stock Purchase Right expires or
becomes unexercisable without having been exercised in full or is
surrendered pursuant to an Option Exchange Program, or if
Restricted Stock Units are forfeited, the unpurchased or unissued
Shares that were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated);
provided , however , that Shares that have actually
been issued under the Plan, whether upon exercise of an Option or
Right, or upon the vesting of Restricted Stock Units, shall not be
returned to the Plan and shall not become available for future
distribution under the Plan, except that if Shares of Restricted
Stock are repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under
the Plan.
4.
Administration of the Plan .
(a) Procedure.
(i) The
Board may designate different Committees to administer the Plan
with respect to different groups of Service Providers.
(ii) To
the extent that the Administrator determines it to be desirable to
qualify Options granted hereunder as “performance-based
compensation” within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more
“Outside Directors” within the meaning of Section
162(m) of the Code.
(iii) To
the extent desirable to qualify transactions hereunder as exempt
under Rule 16b-3, the transactions contemplated hereunder shall be
structured to satisfy the requirements for exemption under Rule
16b-3.
(iv) Other
than as provided above, the Plan shall be administered by the Board
or a Committee, which Committee shall be constituted to satisfy
Applicable Laws.
(b) Powers
of the Administrator. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the Administrator
shall have the authority, in its discretion:
(i) to
determine the Fair Market Value pursuant to Section 2(m)(iii) of
the Plan;
(ii) to
select the Service Providers to whom Options, Stock Purchase
Rights, and Restricted Stock Units may be granted
hereunder;
(iii) to
determine the number of Stock Purchase Rights and Shares of Common
Stock to be covered by each Option or Stock Purchase Right granted
hereunder;
(iv) to
approve forms of agreement for use under the Plan;
(v) to
determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Option, Stock Purchase Right, or Restricted
Stock Unit granted hereunder. Such terms and conditions
include the exercise price, the time or times when Options or Stock
Purchase Rights may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any
Restricted Stock Unit, Option, or Stock Purchase Right or the
Shares of Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall
determine;
(vi) to
cancel any Option or Stock Purchase Right if the Fair Market Value
of the Common Stock covered by such Option or Stock Purchase Right
shall have declined since the date the Option or Stock Purchase
Right was granted and may issue replacement Options or Stock
Purchase Rights with an exercise price equal to the then-current
Fair Market Value;
(vii) to
institute an Option Exchange Program;
(viii) to
construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(ix) to
establish, amend and rescind rules and regulations relating to the
Plan, including rules and regulations relating to subplans
established for the purpose of satisfying applicable foreign
laws;
(x) to
modify or amend each Option, Stock Purchase Right, or Restricted
Stock Unit (subject to Section 18(c) of the Plan), including the
discretionary authority to extend the post-termination
exercisability period of Options longer than is otherwise provided
for in the Plan;
(xi) to
authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option, Stock
Purchase Right, or Restricted Stock Unit previously granted by the
Administrator;
(xii) to
correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or in any Option or Restricted Stock
Units Agreement, in a manner and to the extent it shall deem
necessary, all of which determinations and interpretations made by
the Administrator shall be conclusive and binding on all Optionees
and Participants, any other holders of Options or Restricted Stock
Units, and their legal representatives and
beneficiaries;
(xiii) except
to the extent prohibited by or impermissible in order to obtain
treatment desired by the Administrator under Applicable Law or
rule, to allocate or delegate all or any portion of its powers and
responsibilities to any one or more of its members or to any
person(s) selected by it, subject to revocation or modification by
the Administrator of such allocation or delegation; and
(xiv) to
make all other determinations deemed necessary or advisable for
administering the Plan.
(c) Effect
of Administrator’s Decision. The
Administrator’s decisions, determinations, and
interpretations shall be final and binding on all Optionees and
Participants and any other holders of Options, Stock Purchase
Rights, or Restricted Stock Units.
5.
Eligibility . Nonstatutory Stock Options, Stock
Purchase Rights, and Restricted Stock Units may be granted to
Service Providers. Incentive Stock Options may be
granted only to Employees.
6.
Limitations .
(a) Designation. Each
Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock
Option. However, notwithstanding such designation, to
the extent that the aggregate Fair Market Value of the Shares with
respect to which Incentive Stock Options are exercisable for the
first time by the Optionee during any calendar year (under all
Plans of the Company and any Parent or Subsidiary) exceeds
$100,000, such Options shall be treated as Nonstatutory Stock
Options. For purposes of this Section 6(a), Incentive
Stock Options shall be taken into account in the order in which
they were granted. The Fair Market Value of the Shares
shall be determined as of the time the Option with respect to such
Shares is granted.
(b) No
Right of Continuing Service or Employment. Neither the
Plan nor any Option, Stock Purchase Right, or Restricted Stock Unit
shall confer upon an Optionee or Participant any right with respect
to continuing the Optionee’s or Participant’s
relationship as a Service Provider with the Company, nor shall they
interfere in any way with the existing right of the Optionee,
Participant, or the Company to terminate such
relationship.
7.
Term of Plan . Subject to Section 22 of the Plan,
the Plan shall become effective upon its adoption by the
Board. It shall continue in effect for a term of 10
years unless terminated earlier under Section 18 of the
Plan.
8.
Term of Option . The term of each Option shall be
stated in the Option Agreement. In the case of an
Incentive Stock Option, the term shall be 10 years from the date of
grant or such shorter term as may be provided in the Option
Agreement. Moreover, in the case of an Incentive Stock
Option granted to an Optionee who, at the time the Incentive Stock
Option is granted, owns stock representing more than 10% of the
total combined voting power of all classes of stock of the Company
or any Parent or Subsidiary, the term of the Incentive Stock Option
shall be five years from the date of grant or such shorter term as
may be provided in the Option Agreement.
9.
Option Exercise Price and Consideration .
(a) Exercise
Price. The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be determined by the
Administrator and specified in the Option Agreement, subject to the
following:
(i) In
the case of an Incentive Stock Option:
(1) granted
to an Employee who, at the time the Incentive Stock Option is
granted, owns stock representing more than 10% of the voting power
of all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant.
(2) granted
to any Employee other than an Employee described in subSection
9(a)(i)(1) immediately above, the per Share exercise price shall be
no less than 100% of the Fair Market Value per Share on the date of
grant.
(ii) In
the case of a Nonstatutory Stock Option, the per Share exercise
price shall be determined by the Administrator. In the
case of a Nonstatutory Stock Option intended to qualify as
“performance-based compensation” within the meaning of
Section 162(m) of the Code, the per Share exercise price shall be
no less than 100% of the Fair Market Value per Share on the date of
grant.
(iii) In
the event of a merger or other corporate transaction, a new Option
may be substituted for an outstanding Option, or such outstanding
Option may be assumed.
(b) Waiting
Period and Exercise Dates. At the time an Option is
granted, the Administrator shall fix the period within which the
Option may be exercised and shall determine any conditions that
must be satisfied before the Option may be exercised.
(c) Form
of Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option,
including the method of payment. Such consideration may
consist entirely of:
(iii) other
Shares, provided Shares acquired from the Company have been
owned by the Optionee for more than six months on the date of
surrender and have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares as to which
said Option shall be exercised;
(iv) consideration
received by the Company under a cashless exercise program
implemented by the Company in connection with the Plan;
(v) a
reduction in the amount of any Company liability to the Optionee,
including any liability attributable to the Optionee’s
participation in any Company-sponsored deferred compensation
program or arrangement;
(vi) any
combination of the foregoing methods of payment; or
(vii) such
other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws.
In the case of
an Incentive Stock Option, the Administrator shall determine the
acceptable form of consideration at the time of grant as set forth
in the Option Agreement. Notwithstanding the form of
consideration determined by the Administrator at the time of grant,
the Administrator shall have the authority, in its sole and
absolute discretion, to accept other forms of consideration as the
method of payment.
10.
Exercise of Option .
(a) Procedure
for Exercise; Rights as a Stockholder. Any Option
granted hereunder shall be exercisable according to the terms of
the Plan and at such times and under such conditions as determined
by the Administrator and set forth in the Option
Agreement. Unless the Administrator provides otherwise,
vesting of Options granted hereunder shall be tolled during any
unpaid leave of absence. An Option may not be exercised
for a fraction of a Share. An Option shall be deemed
exercised when the Company receives: (i) written or electronic
notice of exercise (in accordance with the Option Agreement) from
the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration
and method of payment authorized by the Administrator and permitted
by the Option Agreement and the Plan. Shares issued upon
exercise of an Option shall be issued in the name of the Optionee
or, if requested by the Optionee, in the name of the Optionee and
his or her spouse or in the name of a family trust of which the
Optionee is a trustee. Until the Shares are issued (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or
cause to be issued) such Shares promptly after the Option is
exercised; provided that if the Company shall be advised by
counsel that certain requirements under the federal, state or
foreign securities laws must be met before Shares may be issued
under this Plan, the Company shall notify all persons who have been
issued Options, and the Company shall have no liability for failure
to issue Shares under any exercise of Options because of delay
while such requirements are being met or the inability of the
Company to comply with such requirements. No adjustment
will be made for a dividend or other right for which the record
date is prior to the date the Shares are issued, except as provided
in Section 16 of the Plan. Exercising an Option in any
manner shall decrease the number of Shares thereafter available,
both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.
(b) Termination
of Relationship as a Service Provider. If an Optionee
ceases to be a Service Provider, other than upon the
Optionee’s death or Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the
Option Agreement to the extent that the Option is vested on the
date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable for three
months following the Optionee’s termination. If,
on the date of termination, the Optionee is not vested as to his or
her entire Option, the Shares covered by the unvested portion of
the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option
within the time specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall revert to
the Plan.
(c) Disability
of Optionee. If an Optionee ceases to be a Service
Provider as a result of the Optionee’s Disability, the
Optionee may exercise his or her Option within such period of time
as is specified in the Option Agreement to the extent the Option is
vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable for 12 months
following the Optionee’s termination. If, on the
date of termination, the Optionee is not vested as to his or her
entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan.
