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Exhibit 4.2
TUTOGEN MEDICAL,
INC.
2006 INCENTIVE AND
NON-STATUTORY STOCK OPTION PLAN
SECTION 1.
PURPOSE
This Incentive and
Non-Statutory Stock Option Plan (the “ Plan ”)
is intended as a performance incentive for officers and employees
of Tutogen Medical, Inc., a Florida corporation (the “
Company ”) or its Subsidiaries (as hereinafter
defined) and for certain other individuals providing services to or
acting as directors of the Company or its Subsidiaries, to enable
the persons to whom options are granted (an “ Optionee
” or “ Optionees ”) to acquire or increase
a proprietary interest in the success of the Company. The Company
intends that this purpose will be effected by the granting of
incentive stock options (“ Incentive Options ”)
as defined in Section 422A(b) of the Internal Revenue Code of
1986 (the “ Code ”) and other stock options
(“ Non-statutory Options ”) under the
Plan.
SECTION 2. OPTIONS TO BE
GRANTED AND ADMINISTRATION
2.1 OPTIONS TO THE GRANTED.
Options granted under the Plan may be either Incentive Options or
Non-statutory Options.
2.2 ADMINISTRATION BY THE
BOARD. This Plan shall be administered by the Board of Directors of
the Company (the “ Board ”). The Board shall
have full and final authority to operate, manage and administer the
Plan on behalf of the Company. This authority includes, but is not
limited to: (i) the power to grant options conditionally or
unconditionally; (ii) the power to prescribe the form or forms
of the instruments evidencing options granted under this Plan;
(iii) the power to interpret the Plan; (iv) the power to
provide regulations for the operation of the incentive features of
the Plan, and otherwise to prescribe regulations for
interpretation, management and administration of the Plan;
(v) the power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with the
Plan, as the Board may establish; (vi) the power to delegate
to other persons the responsibility for performing ministerial acts
in furtherance of the Plan’s purpose; and (vii) the
power to engage the services of persons or organizations in
furtherance of the Plan’s purpose, including but not limited
to, banks, insurance companies, brokerage firms and
consultants.
In addition, as to each
option, the Board shall have full and final authority in its
discretion: (i) to determine the number of shares subject to
each option; (ii) to determine the time or times at which
options will be granted; (iii) to determine the time or times
when each option shall become exercisable and the duration of the
exercise period, which shall not exceed the limitations specified
in Section 5.1.1; and (iv) to determine the option price
for the shares subject to each option, which price shall be subject
to the applicable requirements, if any, of Section 5.1.4
hereof.
2.3 APPOINTMENT AND
PROCEEDINGS OF COMMITTEE. The Board may appoint a Stock Option
Committee (the “ Committee ”), which shall
consist of at least three members of the Board. The Board may from
time to time appoint members of the Committee in substitution for
or in addition to members previously appointed, and may fill
vacancies, however caused, in the Committee. The Committee shall
select one of its members as its chairman and
shall hold its meetings at such times
and places as it shall deem advisable. A majority of its members
shall constitute a quorum, and all actions of the Committee shall
be taken by a majority of its members. Any action may be taken by a
written instrument signed by all of the members, and any action so
taken shall be as fully effective as if it had been taken by a vote
of a majority of the members at a meeting duly called and
held.
2.4 POWERS OF COMMITTEE.
Subject to the provisions of this Plan and the approval of the
Board, the Committee shall have the power to make recommendations
to the Board as to whom options should be granted, the number of
shares to be covered by each option, the time or times of option
grants, and the terms and conditions of each option. In addition,
the Committee shall have authority to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the
Plan, and to exercise the administrative and ministerial powers of
the Board with regard to aspects of the Plan other than the
granting of options. The interpretation and construction by the
Committee of any provisions of the Plan or of any option granted
hereunder and the exercise of any power delegated to it hereunder
shall be final, unless otherwise determined by the Board. No member
of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any
option granted hereunder.
SECTION 3.
STOCK
3.1 SHARES SUBJECT TO PLANS.
The stock subject to the options granted under the Plan shall be
shares of the Company’s authorized but unissued common stock,
par value $.01 per share (“ Common Stock ”). The
total number of shares that may be issued pursuant to options
granted under the Plan shall not exceed an aggregate of 1,000,000
shares of Common Stock.
3.2 LAPSED OR UNEXERCISED
OPTIONS. Whenever any outstanding option under the Plan expires, is
cancelled or is otherwise terminated (other than by exercise), the
shares of Common Stock allocable to the unexercised portion of such
option shall be restored to the Plan and be available for the grant
of other options under the Plan.
SECTION 4.
ELIGIBILITY
4.1 ELIGIBLE OPTIONEES.
Incentive options may be granted only to officers and other
employees of the Company or its Subsidiaries, including members of
the Board who are also employees of the Company or a Subsidiary.
Non-statutory options may be granted to officers or other employees
of the Company or its Subsidiaries and to certain other
individuals, including non-employee directors, providing services
to the Company or its Subsidiaries.
4.2 LIMITATIONS ON 10%
STOCKHOLDERS. No Incentive Option shall be granted to an individual
who, at the time the Incentive Option is granted, owns (including
ownership attributed pursuant to Section 425(d) of the Code)
more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any parent or Subsidiary
of the Company (a “ greater-than 10% stockholder
”), unless such Incentive Option provides that (i) the
purchase price per share shall not be less than one hundred ten
percent (110%) of the fair market value of the Common Stock at
the time such Incentive Option is granted, and (ii) that such
Incentive Option shall not be exercisable to any extent after the
expiration of five years from the date it is granted.
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4.3 LIMITATION ON EXERCISABLE
OPTIONS. The aggregate fair market value (determined at the time
the Incentive Option is granted) of the Common Stock with respect
to which Incentive Options are exercisable for the first time by
any person during any calendar year under the Plan and under any
other option plan of the Company (or a parent or subsidiary as
defined in Section 425 of the Code) shall not exceed $100,000.
Any option granted in excess of the foregoing limitation shall be
specifically designated as being a Non-statutory Option.
SECTION 5. TERMS OF THE
OPTION AGREEMENTS
5.1 MANDATORY TERMS. Each
option agreement shall contain such provisions as the Board or the
Committee shall from time to time deem appropriate, and shall
include provisions relating to the method of exercise, payment of
exercise price, adjustments on changes in the Company’s
capitalization and the effect of a merger, consolidation,
liquidation, sale or other disposition of or involving the Company.
Option agreements need not be identical, but each option agreement
by appropriate language shall include the substance of all of the
following provisions:
5.1.1 EXPIRATION.
Notwithstanding any other provision of the Plan or of any option
agreement, each option shall expire on the date specified in the
option agreement, which date shall not be later than the tenth
anniversary of the date on which the option was granted (fifth
anniversary in the case of a greater-than 10%
stockholder).
5.1.2 EXERCISE. Each option
shall be deemed exercised when (i) the Company has received
written notice of such exercise in accordance with the terms of the
option, (ii) full payment of the aggregate option price of the
shares of Common Stock as to which the option is exercised has been
made, and (iii) arrangements that are satisfactory to the
Board or the Committee in its sole discretion have been made for
the optionee’s payment to the Company of the amount that is
necessary for the Company or Subsidiary employing the optionee to
withhold in accordance with applicable Federal or state tax
withholding requirements. Unless further limited by the Board or
the Committee in any option, the option price of any shares of
Common Stock purchased shall be paid in cash, by certified or
official bank check, by money order, with shares of Common Stock or
by a combination of the above; provided further, however, that the
Board or the Committee in its sole discretion may accept a personal
check in full or partial payment of any shares of Common Stock. If
the exercise price is paid in whole or in part with shares, the
value of the shares surrendered shall be their fair market value on
the date the option is exercised as determined in accordance with
Section 5.1.4 hereof. No optionee shall be deemed to be a
holder of any shares of Common Stock subject to an option unless
and until a stock certificate or certificates
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