2006 INCENTIVE AND
NON-STATUTORY
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.
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.
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.
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
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