Exhibit 10.44
ISONICS
CORPORATION
2007 NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN
1.
Purposes of and Benefits Under the Plan . This 2007
Non-Employee Directors Stock Option Plan (the “Plan”)
is intended to provide a means by which each director of Isonics
Corporation (the “Company”) who is not otherwise an
employee of the Company (“Non-Employee Director”) will
be given an opportunity to purchase Company stock and to encourage
their continued service on the Board, and this Plan replaces the
1998 Directors’ Plan commencing immediately upon approval by
the shareholders for directors elected or appointed at or after the
meeting at which this Plan is approved by the shareholders.
2.
Definitions . As used in this Plan, the following
words and phrases shall have the meanings indicated:
(a)
“Board” shall mean the Board of Directors of the
Company.
(b)
“Committee” shall mean any committee appointed by the
Board to administer this Plan, if one has been appointed. If
no Committee has been appointed, the term “Committee”
shall mean the Board.
(c)
“Common Stock” shall mean the Company’s no par
value common stock.
(d)
“Disability” shall mean a Recipient’s inability
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than 12 months.
If the Recipient has a disability insurance policy, the term
“Disability” shall be as defined therein.
(e)
“Fair Market Value” per share as of a particular date
shall mean the last sale price of the Company’s Common Stock
as reported on a national securities exchange or by NASDAQ, or if
the quotation for the last sale reported is not available for the
Company’s Common Stock, the average of the closing bid and
asked prices of the Company’s Common Stock as so reported or,
if such quotations are unavailable, the value determined by the
Committee in accordance with its discretion in making a bona fide,
good faith determination of fair market value. Fair Market
Value shall be determined without regard to any restriction other
than a restriction which, by its terms, never will lapse.
(f)
“Option” shall mean a non-qualified stock option
granted under this Plan.
(g)
“Recipient” means any person granted an Option
hereunder.
(h)
“Internal Revenue Code” shall mean the United States
Internal Revenue Code of 1986, as amended from time to time.
3.
Administration .
(a)
The Plan shall be administered by the Committee. The
Committee shall have the authority in its discretion, subject to
and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the powers and authorities
either specifically conferred under the Plan or necessary or
advisable in the administration of the Plan. The Committee
may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the
Committee or any person to whom it has delegated duties as
aforesaid may employ one or more persons to render advice with
respect to any responsibility the Committee or such person may have
under the Plan.
(b)
Options granted under the Plan shall be evidenced by duly adopted
resolutions of the Committee and included in the minutes of the
meeting at which they are adopted or in a unanimous written
consent.
(c)
The Committee shall endeavor to administer the Plan and grant
Options hereunder in a manner that is compatible with the
obligations of persons subject to Section 16 of the U.S. Securities
Exchange Act of 1934 (the “1934 Act”), although
compliance with Section 16 is the obligation of the Recipient, not
the Company. Neither the Committee, the Board nor the Company
can assume any legal responsibility for a Recipient’s
compliance with his obligations under Section 16 of the 1934
Act.
(d)
No member of the Committee or the Board shall be liable for any
action taken or determination made in good faith with respect to
the Plan or any Option granted hereunder.
4.
Eligibility .
(a)
Options shall only be granted to Non-Employee Directors of the
Company.
(b)
The Plan shall not confer upon any Recipient any right with respect
to continuation of service as a Non-Employee Director or nomination
to serve as a Non-Employee Director, nor shall it interfere in any
way with any rights which the Non-Employee Director or the Company
may have to terminate his or her directorship at any time.
5.
Stock Reserved .
(a)
The stock subject to Options hereunder shall be shares of Common
Stock. Such shares, in whole or in part, may be authorized but
unissued shares or shares that shall have been or that may be
reacquired by the Company. The aggregate number of shares of
Common Stock as to which Options may be granted from time to time
under the Plan shall not exceed 1,500,000 shares subject to
adjustment as provided in Section 7(h) hereof.
(b)
If any Option outstanding under the Plan for any reason expires or
is terminated without having been exercised in full, the shares of
Common Stock allocable to the unexercised portion of such Option
shall become available for subsequent grants of Options under the
Plan.
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6.
Non-Discretionary Grants
(a)
Each Non-Employee Director shall automatically be granted an option
to purchase 50,000 shares of Company Common Stock on the date on
which the person first becomes a Non-Employee Director whether
through an election by the Company’s shareholders or by
appointment by the Board to fill a vacancy.
(b)
Thereafter, each Non-Employee Director shall automatically be
granted an Option to purchase 50,000 shares of Common Stock at each
annual shareholder’s meeting at which such person is
re-elected to serve as a Non-Employee Director.
(c)
Each Non-Employee Director who serves as chair of the compensation
committee or the audit committee of the Board of Directors shall
automatically be granted an option to purchase 10,000 shares of
Company Common Stock on the date on which the person becomes chair
of such committee and expresses his or her intention to serve in
that capacity for at least one year following such appointment.
(d)
Each Non-Employee Director who serves as chair of the Board of
Directors shall automatically be granted an option to purchase
50,000 shares of Company Common Stock on the date on which the
person becomes chair of the Board of Directors and expresses his or
her intention to serve in that capacity for at least one year
following such appointment.
(e)
Each Option shall become fully vested immediately upon grant.
7.
Terms and Conditions of Options . Each Option granted
pursuant to the Plan shall be evidenced by a written Option
agreement between the Company and the Recipient, which agreement
shall, unless otherwise determined by the Committee, be
substantially in the form of Exhibit A hereto as modified
from time to time by the Committee in its discretion, and which
shall, unless otherwise determined by the Committee, comply with
and be subject to the following terms and conditions:
(a)
Option Price . Subject to adjustment as provided in
Section 7(h) hereof, each Option agreement shall state the Option
Price, which shall be 100% of the Fair Market Value per share on
the effective date of grant of the Option.
(b)
Term of Option . Each Option Agreement shall state the
period during and times at which the Option shall be
exercisable for five years from the date of grant of the
Option. The exercise period shall be subject to earlier
termination as provided in Sections 7(d) and 7(e) hereof, and,
furthermore, shall be terminated upon surrender of the Option by
the holder thereof if such surrender has been authorized in advance
by the Committee.
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(c)
Method of Exercise and Medium and Time of Payment .
(1)
An Option may be exercised as to any or all whole shares of Common
Stock as to which it then is exercisable; provided, however
, that no Option may be exercised as to less than 100 shares (or
such number of shares as to which the Option is then exercisable if
such number of shares is less than 100).
(2)
Each exercise of an Option granted hereunder, whether in whole or
in part, shall be effected by written notice to the Secretary of
the Company designating the number of shares as to which the Option
is being exercised, and shall be accompanied by payment in full of
the Option Price for the number of shares so designated, together
with any written statements required by, or deemed by the
Company’s counsel to be advisable pursuant to, any applicable
securities laws.
(3)
The Option Price shall be paid in cash, or in shares of Common
Stock having a Fair Market Value, as of the effective date of such
exercise equal to such Option Price, or in property or in a
combination of cash, shares and property and, subject to approval
of the Committee, may be effected in whole or in part with funds
received from the Company at the time of exercise as a compensatory
cash payment for services previously rendered.
(4)
The Committee shall have the sole and absolute discretion to
determine whether or not property other than cash or Common Stock
may be used to purchase the shares of Common Stock hereunder and,
if so, to determine the value of the property received.
(5)
The Recipient shall make provision for the withholding of taxes as
required by Section 8 hereof.
(d)
Termination of Relationship With Company . Unless
otherwise provided in the Option agreement by and between the
Company and the Recipient, if the Recipient ceases to be a
Non-Employee Director of the Company (other than by reason of
death, Disability or retirement), all Options theretofore granted
to such Recipient but not theretofore exercised shall terminate
three months following the date the Recipient ceased to be a
Non-Employee Director of the Company.
(e)
Death, Disability or Retirement of Recipient . Unless
otherwise provided in the Option agreement by and between the
Company and the Recipient:
(1) if a
Recipient shall die: (A) while a Non-Employee Director of the
Company; or (B) within three months after the termination of such
Recipient as a Non-Employee Director; or
(2) if the
Recipient’s relationship with the Company shall terminate by
reason of Disability or retirement;
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then (in both cases)
all Options theretofore granted to such Recipient (whether or not
otherwise exercisable) unless earlier terminated in accordance with
their terms, may be exercised at any time within one year after the
date of death, Disability or retirement of the Recipient by the
Recipient or by the Recipient’s estate or by a person who
acquired the right to exercise such Options by bequest or
inheritance.
(f)
Transferability Restriction .
(1)
Options granted under the Plan shall not be transferable other than
by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Internal
Revenue Code or Title I of the Employee Retirement Income Security
Act of 1974, or the rules thereunder. Options may be
exercised during the lifetime of the Recipient only by the
Recipient and thereafter only by Recipient’s legal
representative.
(2)
Any attempted sale, pledge, assignment, hypothecation or other
transfer of an Option contrary to the provisions hereof and/or the
levy of any execution, attachment or similar process upon an
Option, shall be null and void and without force or effect and
shall result in a termination of the Option.
(3)
(A) As a condition to the transfer of any shares of Common
Stock issued upon exercise of an Option granted under this Plan,
the Company may require (x) an opinion of counsel, reasonably
satisfactory to the Company, to the effect that such transfer will
not be in violation of the U.S. Securities Act of 1933, as amended
(the “1933 Act”) or any other applicable securities
laws or (y) that transfer of such shares has been registered under
federal and all applicable state securities laws. (B) The
Company shall be authorized to refrain from delivering or
transferring shares of Common Stock issued under this Plan until
the Committee determines that such delivery or transfer will not
violate applicable securities laws and the Recipient has tendered
to the Company any federal, state or local tax owed by the
Recipient as a result of exercising the Option or disposing of any
Common Stock when the Company has a legal liability to satisfy such
tax. (C) The Company shall not be liable for damages
due to delay in the delivery or issuance of any stock certificate
for any reason whatsoever, including, but not limited to, a delay
caused by listing requirements of any securities exchange or any
registration requirements under the 1933 Act, the 1934 Act, or
under any other state, federal or provincial law, rule or
regulation, except where such delay is due to the Company’s
failure to act in good faith. (D) The Company is under
no obligation to take any action or incur any expense in order to
register or qualify the delivery or transfer of shares of Common
Stock under applicable securities laws or to perfect any exemption
from such registration or qualification. (E) The Company will
not be liable to any Recipient for failure to deliver or transfer
shares of Common Stock if such failure is based upon the provisions
of this Paragraph 7(i)(3).
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(h)
Effect of Certain Changes
(1)
If there is any change in the number of shares of outstanding
Common Stock through the declaration of stock dividends, or through
a recapitalization resulting in stock splits or combinations or
exchanges of such shares, the number of shares of Common Stock
available for Options and the number of s
