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CALYPTE BIOMEDICAL CORPORATION
1995 DIRECTOR OPTION PLAN
AMENDED AS OF JUNE 13, 2000
1. Purposes of the Plan.
The purposes of this Director Option Plan are to attract and retain the
best available personnel for service as Outside Directors (as defined herein) of
the Company, to provide additional incentive to the Outside Directors of the
Company to serve as Directors, and to encourage their continued service on the
Board.
All options granted hereunder shall be "non-statutory stock options."
2. Definitions.
As used herein, the following definitions shall apply:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" means the Common Stock of the Company.
(d) "Company" means Calypte Biomedical Corporation, a
Delaware corporation.
(e) "Continuous Status as a Director" means the absence
of any interruption or termination of service as a Director.
(f) "Director" means a member of the Board.
(g) "Employee" means any person, including officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a Director's fee by the Company shall not be sufficient in and of
itself to constitute "employment" by the Company. Any person who is not employed
by the Company but who is engaged by the Company to render services as a
consultant is not considered an Employee under this Plan.
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(i) "Fair Market Value" means, as of any date, the value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system, including without
limitation the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") System, the
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Fair Market Value of a Share of Common Stock shall be the closing sales price
for such stock (or the closing bid, if no sales were reported) as quoted on such
system or exchange (or the exchange with the greatest volume of trading in
Common Stock) on the date of grant, as reported in The Wall Street Journal or
such other source as the Board deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ
System (but not on the National Market System thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the bid and
asked prices for the Common Stock on the last market trading day prior to the
day of determination, as reported in The Wall Street Journal or such other
source as the Board deems reliable, or;
(iii) In the absence of an established market for
the Common Stock, the Fair Market Value thereof shall be determined in good
faith by the Board.
(j) "Immediate Family Members" means the spouse, children
or grandchildren of the Optionee.
(k) "Option" means a stock option granted pursuant to the
Plan.
(l) "Optioned Stock" means the Common Stock subject to an
Option.
(m) "Optionee" means an Outside Director who receives an
Option.
(n) "Outside Director" means a Director who is not an
Employee.
(o) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(p) "Plan" means this Director Option Plan.
(q) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 10 of the Plan.
(r) "Subsidiary" means a "subsidiary corporation",
whether now or hereafter existing, as defined in Section 424(f) of the Internal
Revenue Code of 1986.
(s) "Term of Office" means the period of time commencing
with the date of any annual meeting of the Company's stockholders at which
Directors are elected and the date of the next subsequent stockholders' meeting
at which Directors are elected.
3. Stock Subject to the Plan.
Subject to the provisions of Section 10 of the Plan, the maximum
aggregate number of Shares which may be optioned and sold under the Plan is
850,000 Shares (the "Pool") of Common Stock. The Shares may be authorized but
unissued, or reacquired Common Stock.
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If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan.
4. Administration of and Grants of Options under the Plan.
(a) Procedure for Grants. The provisions set forth in
this Section 4(a) shall not be amended more than once every six months, other
than to comport with changes in the Code, the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder. All grants of Options
to Outside Directors under this Plan shall be discretionary provided such grants
are made strictly in accordance with the following provisions:
(i) The Board shall have discretionary authority
to determine the number of shares of Common Stock to be granted to Outside
Directors on the date on which each person first becomes a Director.
(ii) The Board shall have discretionary authority
to determine the number of Options to be granted to each re-elected Director.
(b) Option Grants. Each Option granted hereunder will
include the following terms:
(i) The term of the Option will be ten (10)
years.
(ii) The Option will be exercisable at any time
during the term of the Option to the extent that the Option has become vested,
regardless of whether the Optionee has terminated service as a member of the
Board, provided however that if an Optionee is removed from the Board, the
Option will terminate if it is not exercised within 90 days of the date of such
removal, but in no event later than the expiration of the ten (10) year term of
the Option.
(iii) The exercise price per Share will be 100% of
the fair market value per Share on the date of grant of the Option.
(iv) During the period that an Optionee serves as
a Director, the Option will vest monthly at a rate of 8.33% per month over the
twelve (12) month period commencing with the date of election of the Optionee as
Director. The Option will vest at such rate on the first day of each month
subsequent to such election, provided that such Option will become vested and
fully exercisable on the date of the next annual meeting of stockholders if such
meeting occurs less than twelve months after the date of the grant.
(v) In the event that any Option granted under
the Plan would cause the number of Shares subject to outstanding Options plus
the number of Shares previously purchased under Options to exceed the Pool, then
the remaining Shares available for Option grant shall be granted under Options
to the Outside Directors on a pro rata basis. No further grants shall be made
until such time, if any, as additional Shares become available for grant under
the Plan through action of the Board to increase the number of Shares which may
be issued
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under the Plan; provided, further that such Options shall not be exercisable
until such time, if any, as the increased approved by the Board is approved by
the shareholders.
5. Eligibility.
Options may be granted only to Outside Directors; provided, however,
that if an Outside Director is nominated to the Company's Board pursuant to an
agreement between the Company and another person or entity, options granted
under the Plan may be granted to such other person(s) or entity or an affiliate
of same. All Options shall be granted in accordance with the terms set forth in
Section 4 hereof. An Outside Director who has been granted an Option may, if he
is otherwise eligible, be granted an additional Option or Options in accordance
with such provisions.
The Plan shall not confer upon any Optionee any right with respect to
continuation of service as a Director or nomination to serve as a Director, nor
shall it interfere in any way with any rights which the Director or the Company
may have to terminate his or her directorship at any time.
6. Term of Plan.
The Plan shall become effective upon the earlier to occur of its
adoption by the Board or its approval by the shareholders of the Company as
described in Section 16 of the Plan. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 11 of the Plan.
7. Form of Consideration.
The consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall consist of (i) cash, (ii)
check, (iii) delivery of a properly executed exercise notice together with such
other documentation as the Company and the broker, if applicable, shall require
to effect an exercise of the Option and delivery to the Company of the sale or
loan proceeds required to pay the exercise price, or (iv) any combination of the
foregoing methods of payment.
8. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times as are set forth in
Section 4 hereof, provided, however, that no Options shall be exercisable until
shareholder approval of the Plan in accordance with Section 16 hereof has been
obtained. An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may consist of any consideration and method
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of payment allowable under Section 7 of the Plan. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
such Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. A share certificate for the number of Shares so acquired
shall be issued to the Optionee as soon as practicable after exercise of the
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued, except as
provided in Section 10 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Rule 16b-3. Options granted to Outside Directors must
comply with the applicable provisions of Rule 16b-3 promulgated under the
Exchange Act or any successor thereto and shall contain such additional
conditions or restrictions as may be required thereunder to qualify for the
maximum exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
(c) Termination of Continuous Status as a Director. In
the event an Optionee's Continuous Status as a Director terminates, the
Optionee's vesting in his or her Options granted under this Plan will cease as
of the date of such termination.
(d) Death of Optionee. In the event of an Optionee's
death, the Optionee's estate or a person who acquired the right to exercise the
Option by bequest or inheritance may exercise the Option to the extent that the
Optionee was entitled to exercise it at the date of death (but in no event later
than the expiration of its ten (10) year term). To the extent that the Optionee
was not entitled to exercise an Option at the date of death, and to the extent
that the Optionee's estate or a person who acquired the right to exercise such
Option does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
9. Assignment or Transfer.
(a) All or any portion of any Option may be transferred
by an Optionee to (i) the Immediate Family Members of the Optionee, (ii) a
partnership in which such Immediate Family Members are the only partners, or
(iii) a trust or trusts for the exclusive benefit of such Immediate Family
Members, provided that (x) there may be no consideration for such transfer, (y)
the agreement pursuant to which such Options are transferred must be in a form
consistent with the Plan, and must expressly provide for transferability in a
manner consistent with this Section 9, and (z) subsequent transfers of
transferred Options shall be prohibited except those by will or the laws of
descent and distribution. Following transfer, any such Options shall continue to
be subject to the same terms and conditions as were applicable immediately prior
to transfer. The effect of termination of the Optionee's service on the Board of
Directors shall continue to be applied with respect to the original Optionee,
following which the Options shall be exercisable by the transferee only to the
extent, and for the periods specified in the Plan on the occurrence of
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such termination. Neither the Company nor the administrator of the Plan shall
have any obligation to provide the transferee with notice of termination of an
Optionee.
(b) Options shall be transferable only in accordance with
Section 9(a) or by will or the laws of descent and distribution.
10. Adjustments Upon Changes in Capitalization, Dissolution,
Merger, Asset Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of Shares covered by each
outstanding Option and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued Shares effected without receipt of
consideration by the Company; provided, however, that conversion of an
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration". Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Shares
subject to an Option.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, to the extent that an Option
has not been previously exercised, it will terminate immediately prior to the
consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option shall be substituted by the successor corporation or a Parent
or Subsidiary of the successor corporation. In the event that the successor
corporation does not agree to assume the Option or to substitute an equivalent
option, each outstanding Option shall become fully vested and exercisable,
including as to Shares as to which it would not otherwise be exercisable, unless
the Board, in its discretion, determines otherwise. If an Optionee whose
outstanding options have been assumed or substituted pursuant to a merger or
asset sale is removed from the Board without cause within six months of such
merger or asset sale, such removed director's outstanding options shall
immediately become fully vested and exercisable. If an Option becomes fully
vested and exercisable in the event of a merger or sale of assets, the Board
shall notify the Optionee that the Option shall be fully exercisable for a
period of thirty (30) days from the date of such notice, and the Option will
terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following the merger or
sale of assets, the option or right confers the right to purchase, for each
Share of Optioned Stock subject to the Option immediately prior to the merger or
sale of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or
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sale of assets by holders of Common Stock for each Share held on the effective
date of the transaction (and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the outstanding
Shares).
11. Amendment and Termination of the Plan.
(a) Amendment and Termination. Except as set forth in Section
4, the Board may at any time amend, alter, suspend, or discontinue the Plan, but
no amendment, alteration, suspension, or discontinuation shall be made which
would impair the rights of any Optionee under any grant theretofore made,
without his or her consent. In addition, to the extent necessary and desirable
to comply with Rule 16b-3 under the Exchange Act (or any other applicable law or
regulation), the Company shall obtain shareholder approval of any Plan amendment
in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such
amendment or termination of the Plan shall not affect Options already granted
and such Options shall remain in full force and effect as if this Plan had not
been amended or terminated.
12. Time of Granting Options.
The date of grant of an Option shall, for all purposes, be the date
determined in accordance with Section 4 hereof. Notice of the determination
shall be given to each Outside Director to whom an Option is so granted within a
reasonable time after the date of such grant.
13. Conditions Upon Issuance of Shares.
Shares shall not be issued pursuant to the exercise of an Option unless
the exercise of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, state securities laws, and the
requirements of any stock exchange upon which the Shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
14. Reservation of Shares.
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The Company, during the term of this Plan, will at all times reserve
and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
15. Option Agreement.
Options shall be evidenced by written option agreements in such form as
the Board shall approve.
16. Shareholder Approval.
Continuance of the Plan shall be subject to approval by the
shareholders of the Company at or prior to the first annual meeting of
shareholders held subsequent to the granting of an Option hereunder. Such
shareholder approval shall be obtained in the degree and manner required under
applicable state and federal law.
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