Exhibit 10.2
2009 STOCK OPTION
PLAN
OF
IRIS BIOTECHNOLOGIES
INC.
1.
PURPOSES OF THE
PLAN
The purposes of the 2009 Stock
Option Plan (the “ Plan ”) of Iris
BioTechnologies Inc., a California corporation (the “
Company ”), are to:
(a)
Encourage
selected employees, directors and consultants to improve operations
and increase profits of the Company;
(b)
Encourage
selected employees, directors and consultants to accept or continue
employment or association with the Company or its Affiliates;
and
(c)
Increase the
interest of selected employees, directors and consultants in the
Company’s welfare through participation in the growth in
value of the common stock of the Company (the “
Common Stock
”).
Options granted under this Plan
(“ Options ”) may be “incentive
stock options” (“ ISOs ”) intended
to satisfy the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the “ Code
”), or “nonqualified options” (“
NQOs ”).
2.
ELIGIBLE PERSONS
Every person who at the date of
grant of an Option is an employee of the Company or of any
Affiliate (as defined below) of the Company is eligible to receive
NQOs or ISOs under this Plan. Every person who at the date of
grant is a consultant to, or nonemployee director of, the Company
or any Affiliate (as defined below) of the Company is eligible to
receive NQOs under this Plan. The term “
Affiliate ” as used in the Plan means a parent
or subsidiary corporation as defined in the applicable provisions
(currently Sections 424(e) and (f), respectively) of the
Code. The term “ employee ”
includes an officer or director who is an employee of the
Company. The term “ consultant ”
includes persons employed by, or otherwise affiliated with, a
consultant.
3.
STOCK SUBJECT TO THIS
PLAN
Subject to the provisions of
Section 6.1.1 of the Plan, the total number of shares of stock
which may be issued under options granted pursuant to this Plan and
the total number of shares provided for issuance under this Plan
shall be 2,184,108 shares of Common Stock and shall at no time
exceed the applicable percentage as calculated in accordance with
Section 260.140.45 of Chapter 3 of Title 10 of the California
Code of Regulations. The shares covered by the portion of any
grant under the Plan, which expires unexercised shall become
available again for grants under the Plan.
4.
ADMINISTRATION
4.1
General . This Plan shall be
administered by the Board of Directors of the Company (the
“ Board
”) or,
either in its entirety or only insofar as required pursuant to
Section 4(b) hereof, by a committee (the “
Committee ”) of at least two
Board members to which administration of the Plan, or of part of
the Plan, is delegated (in either case, the “
Administrator
”).
4.2
Public Company
.
From and after such time as
the Company registers a class of equity securities under
Section 12 of the Securities Exchange Act of 1934, as amended
(the “ Exchange
Act ”), it is intended
that this Plan shall be administered in accordance with the
disinterested administration requirements of Rule 16b-3
promulgated by the Securities and Exchange Commission
(“ Rule 16b-3 ”), or any successor
rule thereto.
4.3
Authority of
Administrator . Subject to the other
provisions of this Plan, the Administrator shall have the
authority, in its discretion: (i) to grant Options;
(ii) to determine the fair market value of the Common Stock
subject to Options; (iii) to determine the exercise price of
Options granted; (iv) to determine the persons (each an
“ Optionee ”) to whom, and the
time or times at which, Options shall be granted, and the number of
shares subject to each Option; (v) to interpret this Plan;
(vi) to prescribe, amend, and rescind rules and
regulations relating to this Plan; (vii) to determine the
terms and provisions of each Option granted (which need not be
identical), including but not limited to, the time or times at
which Options shall be exercisable; (viii) with the consent of
the Optionee, to modify or amend any Option; (ix) to defer
(with the consent of the Optionee) the exercise date of any Option;
(x) to authorize any person to execute on behalf of the
Company any instrument evidencing the grant of an Option; and (xi)
to make all other determinations deemed necessary or advisable for
the administration of this Plan. The Administrator may
delegate nondiscretionary administrative duties to such employees
of the Company as it deems proper.
4.4
Interpretation by
Administrator . All questions of
interpretation, implementation, and application of this Plan shall
be determined by the Administrator. Such determinations shall
be final and binding on all persons.
4.5
Rule 16b-3
.
With respect to persons
subject to Section 16 of the Exchange Act, if any,
transactions under this Plan are intended to comply with the
applicable conditions of Rule 16b-3, or any successor
rule thereto. To the extent any provision of this Plan
or action by the Administrator fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed
advisable by the Administrator. Notwithstanding the above, it shall
be the responsibility of such persons, not of the Company or the
Administrator, to comply with the requirements of Section 16
of the Exchange Act; and neither the Company nor the Administrator
shall be liable if this Plan or any transaction under this Plan
fails to comply with the applicable conditions of Rule 16b-3
or any successor rule thereto, or if any such person incurs
any liability under Section 16 of the Exchange
Act.
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5.
GRANTING OF OPTIONS; OPTION
AGREEMENT
5.1
Termination of Plan
. No
options shall be granted under this Plan after ten years from the
date of adoption of this Plan by the Board.
5.2
Stock Option Agreement
.
Each Option shall be
evidenced by a written stock option agreement (the “
Option Agreement
”), in
form satisfactory to the Company, executed by the Company and the
person to whom such Option is granted; provided, however, that the
failure by the Company, the Optionee, or both, to execute the
Option Agreement shall not invalidate the granting of an Option,
although the exercise of each option shall be subject to
Section 6.1.3.
5.3
Type of Option
. The
Option Agreement shall specify whether each Option it evidences is
an NQO or an ISO.
5.4
Early Approval of
Grants . Subject to Section 6.3.3
with respect to ISOs, the Administrator may approve the grant of
Options under this Plan to persons who are expected to become
employees, directors or consultants of the Company, but are not
employees, directors or consultants at the date of
approval.
6.
TERMS AND CONDITIONS OF
OPTIONS
Each Option granted under this Plan
shall be subject to the terms and conditions set forth in
Section 6.1. NQOs shall be also subject to the terms and
conditions set forth in Section 6.2, but not those set forth
in Section 6.3. ISOs shall also be subject to the terms
and conditions set forth in Section 6.3, but not those set
forth in Section 6.2.
6.1
Terms and Conditions to Which All
Options Are Subject . Options granted under
this Plan shall be subject to the following terms and
conditions:
6.1.1
Changes in Capital
Structure . Subject to
Section 6.1.2, if the stock of the Company is changed by
reason of a stock split, reverse stock split, stock dividend, or
recapitalization, combination or reclassification, appropriate
adjustments shall be made by the Board in (a) the number and
class of shares of stock subject to this Plan and each Option
outstanding under this Plan, and (b) the exercise price of
each outstanding Option; provided, however, that the Company shall
not be required to issue fractional shares as a result of any such
adjustments. Each such adjustment shall be subject to
approval by the Board in its absolute discretion.
6.1.2
Corporate Transactions
.
(a)
Dissolution or
Liquidation . In the event of the
proposed dissolution or liquidation of the Company, the
Administrator shall notify each Optionee at least 30 days prior to
such proposed action. To the extent not previously exercised,
all Options will terminate immediately prior to the consummation of
such proposed action.
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(b)
Merger or Asset Sale
. In the
event of a merger of the Company with or into another corporation,
or the sale of substantially all of the assets of the
Company:
(i)
Options . Each Option
shall be assumed or an equivalent option substituted by the
successor corporation (including as a “successor” any
purchaser of substantially all of the assets of the Company) or a
parent or subsidiary of the successor corporation. In the
event that the successor corporation refuses to assume or
substitute for the Option, the Optionee shall have the right to
exercise the Option as to all of the shares of Common Stock covered
by the Option, including Shares as to which it would not otherwise
be exercisable. If an Option is exercisable in lieu of
assumption or substitution in the event of a merger or sale of
assets, the Administrator shall notify the Optionee that the Option
shall be fully exercisable for a period of 15 days from the date of
such notice, and the Option shall terminate upon the expiration of
such period. For the purposes of this paragraph, the Option
shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for
each share of Common Stock subject to the Option immediately prior
to the merger or sale of assets, the consideration (whether stock,
cash, or other securities or property) received in the merger or
sale of assets by holders of Common Stock for each share held on
the effective date of the transaction (and if holders were offered
a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares); provided,
however, that if such consideration received in the merger or sale
of assets was not solely common stock of the successor corporation
or its parent entity, the Administrator may, with the consent of
the successor corporation, provide for the consideration to be
received upon the exercise of the Option, for each Share of Common
Stock subject to the Option, to be solely common stock of the
successor corporation or its parent entity equal in fair market
value to the per share consideration received by holders of Common
Stock in the merger or sale of assets.
6.1.3
Time of Option
Exercise . Subject to
Section 5 and Section 6.3.4, Options granted under this
Plan shall be exercisable (a) immediately as of the effective
date of the Option Agreement granting the Option, or (b) in
accordance with a schedule related to the date of the grant of the
Option, the date of first employment, or such other date as may be
set by the Administrator (in any case, the “
Vesting Base Date
”) and
specified in the Option Agreement relating to such Option;
provided, however, that with respect to Options granted to
employees who are not officers, directors or consultants, the right
to exercise an Option must vest at the rate of at least 20% per
year over five years from the date the Option was granted.
Options granted to officers, directors or consultants may become
fully exercisable, subject to reasonable conditions such as
continued employment, at any time or during any period established
by the Board of the Administrator in accordance with this
Plan. In any case, no Option shall be exercisable until a
written Option Agreement in form satisfactory to the Company is
executed by the Company and the Optionee.
6.1.4
Option Grant Date
. Except in
the case of advance approvals described in Section 5.4, the
date of grant of an Option under this Plan shall be the date as of
which the Administrator approves the grant.
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6.1.5
Nonassignability of Option
Rights . Except as otherwise
determined by the Administrator and expressly set forth in the
Option Agreement, no Option granted under this Plan shall be
assignable or otherwise transferable by the Optionee except by will
or by the laws of descent and distribution. During the life
of the Optionee, except as otherwise determined by the
Administrator and expressly set forth in the Option Agreement, an
Option shall be exercisable only by the Optionee.
6.1.6
Payment . Except as provided
below, payment in full, in cash, shall be made for all stock
purchased at the time written notice of exercise of an Option is
given to the Company, and proceeds of any payment shall constitute
general funds of the Company. At the time an Option is
granted or exercised, the Administrator, in the exercise of its
absolute discretion after considering any tax or accounting
consequences, may authorize any one or more of the following
additional methods of payment:
(a)
Acceptance of the
Optionee’s full recourse promissory note for all or part of
the Option price, payable on such terms and bearing such
intere
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