1999 DIRECTORS AND CONSULTANTS
STOCK OPTION PLAN
1.
Purpose . The purpose of this Plan is to advance the
interests of BIOHEART, INC., a Florida corporation (the
“Company”), and its Subsidiaries by providing an
additional incentive to attract and retain qualified and competent
persons who provide management services and upon whose efforts and
judgment the success of the Company and its Subsidiaries is largely
dependent, through the encouragement of stock ownership in the
Company by such persons.
2.
Definitions . As used herein, the following terms shall have
the meaning indicated:
(a)
“Board” shall mean the Board of Directors of the
Company.
(b)
“Code” shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(c)
“Committee” shall mean the committee appointed by the
Board pursuant to Section 13(a) hereof; or, if such committee is
not appointed, the Board.
(d)
“Common Stock” shall mean the Company’s Common
Stock, par value $.01 per share.
(e)
“Company” shall mean BIOHEART, INC., a Florida
corporation.
(f)
“Director” shall mean a member of the Board.
(g)
“Effective Date” shall mean December 1,
1999.
(h)
“Fair Market Value” of a Share on any date of reference
shall mean the fair market value of a Share of the Company’s
Common Stock on that date, as determined by the Committee in a fair
and uniform manner. After the Publicly-Traded Date, the Fair Market
Value shall mean the “Closing Price” (as defined below)
of the Common Stock on the business day immediately preceding the
date of reference, unless the Committee in its sole discretion
shall determine otherwise in a fair and uniform manner. For the
purpose of determining Fair Market Value, the “Closing
Price” of the Common Stock on any business day shall be
(i) if the Common Stock is listed or admitted for trading on
any United States national securities exchange, or if actual
transactions are otherwise reported on a consolidated transaction
reporting system, the last reported sale price of Common Stock on
such exchange or reporting system, as reported in any newspaper of
general circulation, (ii) if the Common Stock is quoted on the
National Association of Securities
Dealers
Automated Quotations System (“NASDAQ”), or any similar
system of automated dissemination of quotations of securities
prices in common use, the last reported sale price of Common Stock
on such system or, if sales prices are not reported, the mean
between the closing high bid and low asked quotations for such day
of Common Stock on such system, as reported in any newspaper of
general circulation or (iii) if neither clause (i) or
(ii) is applicable, the mean between the high bid and low
asked quotations for the Common Stock as reported by the National
Quotation Bureau, Incorporated if at least two securities dealers
have inserted both bid and asked quotations for Common Stock on at
least five of the ten preceding days.
(i)
“Internal Revenue Code” shall mean the Internal Revenue
Code of 1986, as amended from time to time.
(j)
“Officer” shall mean the Company’s Chairman of
the Board, President, Chief Executive Officer, principal financial
officer, principal accounting officer, any vice president of the
Company in charge of a principal business unit, division or
function (such as sales, administration or finance), any other
officer who performs a policy-making function, or any other person
who performs similar policy-making functions for the Company.
Officers of Subsidiaries shall be deemed Officers of the Company if
they perform such policy-making functions for the Company. As used
in this paragraph, the phrase “policy-making function”
does not include policy-making functions that are not significant.
If pursuant to Item 401(b) of Regulation S-K (17 C.F.R. §
229.401(b)) the Company identifies a person as an “executive
officer,” the person so identified shall be deemed an
“Officer” even though such person may not otherwise be
an “Officer” pursuant to the foregoing provisions of
this paragraph.
(k)
“Option” (when capitalized) shall mean any option
granted under this Plan.
(l)
“Option Agreement” means the agreement between the
Company and the Optionee for the grant of an option.
(m)
“Optionee” shall mean a person to whom a stock option
is granted under this Plan or any person who succeeds to the rights
of such person under this Plan by reason of the death of such
person.
(n)
“Outside Director” shall mean a member of the Board who
qualifies as an “outside director” under Section 162(m)
of the Internal Revenue Code and the regulations thereunder and as
a “Non-Employee Director” under Rule 16b-3
promulgated under the Securities Exchange Act.
(o)
“Plan” shall mean this Stock Option Plan for the
Company.
(p)
“Publicly-Traded Date,” when applied to the Shares,
shall mean the date on which the Common Stock of the Company, or
the stock of any successor company into which the Shares are
substituted or exchanged, is registered pursuant to Section 12(b)
or 12(g) of the Securities Exchange Act.
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(q)
“Securities Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended.
(r)
“Share” shall mean a share of Common Stock.
(s)
“Subsidiary” shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the
Company if, at the time of the granting of the Option, each of the
corporations other than the last corporation in the unbroken chain
owns stock possessing 50 percent or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
3. Shares
Available for Option Grants . The Committee or the Board may
grant to Optionees from time to time Options to purchase an
aggregate of up to Two Million (2,000,000) Shares from the
Company’s authorized and unissued Shares, less the number of
Shares with respect to issued and outstanding Options granted under
the Company’s 1999 Officers and Employees Stock Option Plan
(the “Employee Plan”). If any Option granted under the
Plan and/or the Employee Plan shall terminate, expire, or be
canceled or surrendered as to any Shares, new Options may
thereafter be granted covering such Shares.
4.
Conditions for Grant of Options .
(a) Each
Option shall be evidenced by an option agreement that may contain
any term deemed necessary or desirable by the Committee or the
Board, provided such terms are not inconsistent with this Plan or
any applicable law. Optionees shall be (i) Directors who are
not employees of the Company or of any Subsidiary, and
(ii) those persons selected by the Committee or the Board who
provide consulting or other services as independent contractors to
the Company. Any person who files with the Committee, in a form
satisfactory to the Committee, a written waiver of eligibility to
receive any Option under this Plan shall not be eligible to receive
any Option under this Plan for the duration of such
waiver.
(b) In
granting Options, the Committee or the Board shall take into
consideration the contribution the person has made to the success
of the Company or its Subsidiaries and such other factors as the
Committee shall determine. The Committee or the Board shall also
have the authority to consult with and receive recommendations from
officers and other personnel of the Company and its Subsidiaries
with regard to these matters. The Committee or the Board may from
time to time in granting Options under the Plan prescribe such
other terms and conditions concerning such Options as it deems
appropriate, including, without limitation, (i) prescribing
the date or dates on which the Option becomes exercisable,
(ii) providing that the Option rights accrue or become
exercisable in installments over a period of years, or upon the
attainment of stated goals or both, or (iii) relating an Option to
the continued service of the Optionee for a specified period of
time, provided that such terms and conditions are not more
favorable to an Optionee than those expressly permitted
herein.
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(c) Neither
the Plan nor any Option granted under the Plan shall confer upon
any person any right to service or continuance of service with the
Company or its Subsidiaries.
(d) Notwithstanding
any other provision of this Plan, and in addition to any other
requirements of this Plan, the aggregate number of Options granted
to any one Optionee may not exceed Six Hundred Thousand (600,000),
subject to adjustment as provided in Section 10
hereof.
5. Option
Price . The option price per Share of any Option shall be any
price determined by the Committee but shall not be less than the
par value per Share.
6. Exercise of
Options . An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance
with the terms of the Option, and (ii) full payment of the
aggregate option price of the Shares as to which the Option is
exercised has been made. The consideration to be paid for the
Shares to be issued upon exercise of an Option, as well as the
method of payment of the exercise price, shall be determined by the
Committee or the Board and may, in the discretion of the Committee
or the Board, consist of: (1) cash, (2) certified or
official bank check, (3) money order, (4) Shares that
have been held by the Optionee for at least six (6) months (or
such other Shares as the Company determines will not cause the
Company to recognize for a financial accounting purposes a change
for compensation expense), (5) the withholding of Shares
issuable upon exercise of the Option, (6) pursuant to a
“cashless exercise” procedure, by delivery of a
properly executed exercise notice together with such other
documentation, and subject to such guidelines, as the Board or the
Committee shall require to effect an exercise of the Option and
delivery to the Company by a licensed broker acceptable to the
Company of proceeds from the sale of Shares or a margin loan
sufficient to pay the exercise price and any applicable income or
employment taxes, or (7) in such other consideration as the
Committee or the Board deems appropriate, or by a combination of
the above. The Committee or the Board in its sole discretion may
accept a personal check in full or partial payment of any Shares.
If the exercise price is paid in whole or in part with Shares, or
through the withholding of Shares issuable upon exercise of the
Option, the value of the Shares surrendered or withheld shall be
their Fair Market Value on the date the Option is exercised. The
Company in its sole discretion may, on an individual basis or
pursuant to a general program established in connection with this
Plan, lend money to an Optionee, guarantee a loan to an Optionee,
or otherwise assist an Optionee to obtain the cash necessary to
exercise all or a portion of an Option granted hereunder or to pay
any tax liability of the Optionee attributable to such exercise. If
the exercise price is paid in whole or part with Optionee’s
promissory note, such note shall (i) provide for full recourse
to the maker, (ii) be collateralized by the pledge of the
Shares that the Optionee purchases upon exercise of such
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