Exhibit 10.45
ISONICS
CORPORATION
Amended and
Restated
2005 STOCK OPTION
PLAN
A.
1.
Purposes of and Benefits Under the Plan . This 2005
Stock Option Plan (the “Plan”) is intended to encourage
stock ownership by employees, officers, consultants and advisors of
Isonics Corporation and its controlled, affiliated and subsidiary
entities (collectively, the “Corporation”), so that
they may acquire or increase their proprietary interest in the
Corporation. The Plan is intended to facilitate the
Corporation’s efforts to: (i) induce qualified persons
to become employees, officers, consultants and advisors of the
Corporation; (ii) compensate employees, officers, consultants and
advisors for services to the Corporation; and (iii) encourage such
persons to remain in the employ of or associated with the
Corporation and to put forth maximum efforts for the success of the
Corporation. Options granted by the Committee pursuant to
Section 6 of this Plan are “incentive stock options”
(“Incentive Stock Options”) within the meaning of
Section 422 of the Internal Revenue Code, and options granted by
the Committee pursuant to Section 7 of this Plan are
“non-qualified stock options” (“Non-qualified
Stock Options”).
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
Corporation.
(b)
“Bonus” shall mean the grant of shares of Common
Stock.
(c)
“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.
(d)
“Common Stock” shall mean the Corporation’s no
par value common stock.
(e)
“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.
(f)
“Fair Market Value” per share as of a particular date
shall mean the last sale price of the Corporation’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 Corporation’s Common Stock, the average of the closing
bid and asked prices of the Corporation’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.
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(g)
“Options” shall mean either Incentive Stock Options or
Non-qualified Stock Options.
(h)
“Recipient” means any person granted an Option or
awarded a Bonus hereunder.
(i)
“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, including the
authority: to grant Options and Bonuses; to determine the
vesting schedule and other restrictions, if any, relating to
Options and Bonuses; to determine the purchase price of the shares
of Common Stock covered by each Option (the “Option
Price”); to determine the persons to whom, and the time or
times at which, Options and Bonuses shall be granted; to determine
the number of shares to be covered by each Option or Bonus; to
determine Fair Market Value per share; to interpret the Plan; to
prescribe, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of the Option
agreements (which need not be identical) entered into in connection
with Options granted under the Plan; and to make all other
determinations deemed necessary or advisable for 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 and Bonuses granted under the Plan shall be evidenced by
duly adopted resolutions of the Committee 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 and Bonuses 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 Corporation. Neither the Committee, the
Board nor the Corporation 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 or Bonus granted hereunder.
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4.
Eligibility .
(a)
Subject to certain limitations hereinafter set forth, Options and
Bonuses may be granted to employees, officers, consultants and
advisors of the Corporation. In determining the persons to
whom Options or Bonuses shall be granted and the number of shares
to be covered by each Option or Bonus, the Committee shall take
into account the duties of the respective persons, their present
and potential contributions to the success of the Corporation, and
such other factors as the Committee shall deem relevant to
accomplish the purposes of the Plan.
(b)
A Recipient shall be eligible to receive more than one grant of an
Option or Bonus during the term of the Plan, on the terms and
subject to the restrictions herein set forth.
5.
Stock Reserved .
(a)
The stock subject to Options or Bonuses 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 Corporation. The aggregate
number of shares of Common Stock as to which Options and Bonuses
may be granted from time to time under the Plan shall not exceed
2,875,000 (following the reverse stock split accomplished in
February 2007) and subject to further adjustment as provided in
Section 8(i) hereof.
(b)
If any Option outstanding under the Plan for any reason expires or
is terminated without having been exercised in full, or if any
Bonus granted is forfeited because of vesting or other restrictions
imposed at the time of grant, the shares of Common Stock allocable
to the unexercised portion of such Option or the forfeited portion
of the Bonus shall become available for subsequent grants of
Options and Bonuses under the Plan.
6.
Incentive Stock Options .
(a)
Options granted pursuant to this Section 6 are intended to
constitute Incentive Stock Options and shall be subject to the
following special terms and conditions, in addition to the general
terms and conditions specified in Section 8 hereof. Only
employees of the Corporation shall be entitled to receive Incentive
Stock Options.
(b)
The aggregate Fair Market Value (determined as of the date the
Incentive Stock Option is granted) of the shares of Common Stock
with respect to which Incentive Stock Options granted under this
and any other plan of the Corporation are exercisable for the first
time by a Recipient during any calendar year may not exceed the
amount set forth in Section 422(d) of the Internal Revenue
Code.
(c)
Incentive Stock Options granted under this Plan are intended to
satisfy all requirements for incentive stock options under Section
422 of the Internal Revenue Code and the Treasury Regulations
promulgated thereunder and, notwithstanding any other provision of
this Plan, the Plan and all Incentive Stock Options granted under
it shall be so construed, and all
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contrary provisions
shall be so limited in scope and effect and, to the extent they
cannot be so limited, they shall be void.
7.
Non-qualified Stock Options . Options granted pursuant
to this Section 7 are intended to constitute Non-qualified Stock
Options and shall be subject only to the general terms and
conditions specified in Section 8 hereof.
8.
Terms and Conditions of Options . Each Option granted
pursuant to the Plan shall be evidenced by a written Option
Agreement between the Corporation and the Recipient, which
agreement shall be substantially in the form of Exhibit A
hereto as modified from time to time by the Committee in its
discretion, and which shall comply with and be subject to the
following terms and conditions:
(a)
Number of Shares . Each Option agreement shall state
the number of shares of Common Stock covered by the Option.
(b)
Type of Option . Each Option Agreement shall
specifically identify the portion, if any, of the Option which
constitutes an Incentive Stock Option and the portion, if any,
which constitutes a Non-qualified Stock Option.
(c)
Option Price . Subject to adjustment as provided in
Section 8 (i) hereof, each Option Agreement shall state the Option
Price, which shall be determined by the Committee subject only to
the following restrictions:
(1)
Each Option Agreement shall state the Option Price, which shall be
not less than 100% of the Fair Market Value per share on the date
of grant of the Option.
(2)
Any Incentive Stock Option granted under the Plan to a person
owning more than ten percent of the total combined voting power of
the Common Stock shall be at a price of no less than 110% of the
Fair Market Value per share on the date of grant of the Incentive
Stock Option.
(3)
The date on which the Committee adopts a resolution expressly
granting an Option shall be considered the day on which such option
is granted, unless a future date is specified in the
resolution.
(d)
Term of Option . Each Option Agreement shall state the
period during and times at which the Option shall be
exercisable, in accordance with the following
limitations:
(1)
The date on which the Committee adopts a resolution expressly
granting an Option shall be considered the day on which such Option
is granted, unless a future date is specified in the resolution,
although any such grant shall not be effective until the Recipient
has executed an Option Agreement with respect to such Option.
(2)
The exercise period of any Option shall not exceed ten years from
the date of grant of the Option.
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(3)
Incentive Stock Options granted to a person owning more than ten
percent of the total combined voting power of the Common Stock of
the Corporation shall be for no more than five years.
(4)
The Committee shall have the authority to accelerate or extend the
exercisability of any outstanding Option at such time and under
such circumstances as it, in its sole discretion, deems
appropriate. In any event, no exercise period may be so
extended to increase the term of the Option beyond ten years from
the date of the grant.
(5)
The exercise period shall be subject to earlier termination as
provided in Sections 8(f) and 8(g) 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.
(e)
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 Corporation 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
Corporation’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 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 Corporation at the time of
exercise as a compensatory cash payment.
(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 10 hereof.
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(f)
Termination of Relationship With Corporation .
(1)
Unless otherwise provided in the Option Agreement by and between
the Corporation and the Recipient, if the Recipient ceases to be an
employee, officer, director or consultant of the Corporation (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 an employee, officer, director or consultant of the
Corporation; provided, however, that notwithstanding any
other provision in this paragraph (8)(f)(1), if the
Recipient’s relationship with the Corporation is terminated
for cause, then the Recipient’s Options shall terminate upon
the date of termination of employment or termination of the
Recipient’s other relationship with the Corporation.
(2)
Nothing in the Plan or in any Option or Bonus granted hereunder
shall confer upon an individual any right to continue in the employ
of or continue any other relationship with the Corporation or
interfere in any way with the right of the Corporation to terminate
such employment or other relationship between the individual and
the Corporation.
(g)
Death, Disability or Retirement of Recipient . Unless
otherwise provided in the Option Agreement by and between the
Corporation and the Recipient:
(1) if a
Recipient shall die: (A) while an employee, officer, director or
consultant of the Corporation; or (B) within ninety days after the
termination of such Recipient as an employee, officer, director or
consultant, other than termination for cause; or
(2) if the
Recipient’s relationship with the Corporation shall terminate
by reason of Disability or retirement;
then 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; provided, however, that in the case of
Incentive Stock Options such one-year period shall be limited to
three months in the case of retirement.
(h)
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 his 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.
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(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 Corporation may require an opinion of counsel, satisfactory to
the Corporation, 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
that such transfer has been registered under federal and all
applicable state securities laws. (B) The Corporation 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 Corporation
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
Corporation has a legal liability to satisfy such tax.
(C) The Corporation 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
