EXHIBIT
10.1


 


MEDICALCV, INC.


 


NON-QUALIFIED STOCK OPTION AGREEMENT


PURSUANT TO 2001 EQUITY INCENTIVE PLAN


 


	
  No. of shares subject to option:                  

  	
   

  	
   

  	
  Option
  No.:             

  
	
  Date of grant:                                              

  	
   

  	
   

  	
   

  



 


THIS OPTION
AGREEMENT is entered into by and between MedicalCV, Inc., a Minnesota
corporation (the “Company”), and                              
(the “Optionee”) pursuant to the Company’s 2001 Equity Incentive Plan, as
amended to date (the “Plan”). Unless otherwise defined herein, certain
capitalized terms shall have the meaning set forth in the Plan.


 


W I T N E S S E T
H:


 


1.             Nature of the Option.  This
Option is not intended to qualify as an Incentive Stock Option within the
meaning of Section 422 of the United States Internal Revenue Code of 1986, as
amended.


 


2.             Grant of Option.  Pursuant
to the provisions of the Plan, the Company grants to the Optionee, subject to
the terms and conditions of the Plan and to the terms and conditions herein set
forth, the right and option to purchase from the Company all or a part of an
aggregate of 232,500 (two hundred thirty-two thousand, five hundred) shares of
Stock (the “Shares”) at the purchase price of $0.84 per share, such Option to
be exercised as hereinafter provided.


 


3.             Terms and Conditions.  It
is understood and agreed that the Option evidenced hereby is subject to the
following terms and conditions:


 


(a)           Expiration Date.  This
Option shall expire ten years after the date of grant specified above.
Notwithstanding the foregoing, if the Optionee’s employment or relationship
with the Company or Related Company is terminated by reason of death,
Disability or Retirement, this Option shall expire on the one-year anniversary
of the termination date. If the Optionee’s employment or relationship with the
Company or Related Company is terminated by reasons for other than death,
Disability or Retirement, this Option shall, subject to Section 4 of the Plan,
expire on the three-month anniversary of the termination date. Except as
otherwise provided by the Board, an Optionee shall be considered to have a
“Disability” if the Optionee is unable, by reason of a medically determinable
physical or mental impairment, to substantially perform the principal duties of
employment with the Company, which condition, in the opinion of a physician
selected by the Board, is expected to have a duration of not less than 120
days.


 


(b)           Exercise of Option.  Subject
to the Plan and the other terms of this Agreement regarding the exercisability
of this Option, this Option shall be exercisable cumulatively, to the extent it
is vested, as set forth in Exhibit A. Any exercise shall be accompanied by a
written notice to the Company specifying the number of shares of Stock as to
which the Option is being exercised. Notation of any partial exercise shall be
made by the Company on Schedule I hereto. This Option may not be exercised for
a fraction of a Share, and must be exercised for no fewer than one hundred
(100) shares of Stock, or such lesser number of shares as may be vested.


 

















 


(c)           Payment of Purchase Price Upon
Exercise.  At the time of any exercise, the Exercise Price of the
Shares as to which this Option is exercised shall be paid in cash to the
Company, unless, in accordance with the provisions of Section 4.2(c) of the
Plan, the Board shall permit or require payment of the purchase price in
another manner set forth in the Plan.


 


(d)           Nontransferability.  This
Option shall not be transferable other than by will or by the laws of descent
and distribution. During the lifetime of the Optionee, this Option shall be
exercisable only by the Optionee or by the Optionee’s guardian or legal
representative. No transfer of this Option by the Optionee by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company is furnished with written notice thereof and a copy of the will
and/or such other evidence as the Board may determine necessary to establish
the validity of the transfer.


 


(e)           Acceleration of Option Upon Change
in Control.  In the event of a Change in Control, as defined in
Section 1.3 of the Plan, the provisions of Section 3(b) and Exhibit A hereof
pertaining to vesting shall cease to apply and this Option shall become
immediately vested and fully exercisable with respect to all Shares; provided,
however, that the provisions of this Subsection 3(e) shall not apply unless the
Optionee has been employed by the Company for a period equal to or exceeding
one calendar year. No acceleration of vesting shall occur under this Subsection
3(e) in the event a surviving corporation or its parent assumes this Option or
in the event the surviving corporation or its parent substitutes an option
agreement with substantially the same terms as provided in this Agreement.
Nothing in this Subsection 3(e) shall limit the Committee’s authority to cancel
this Option in accordance with Section 9 of the Plan.


 


(f)            Subject to Lock Up.  Optionee
understands that the Company at a future date may file a registration or
offering statement (the “Registration Statement”) with the Securities and
Exchange Commission to facilitate an underwritten public offering of its
securities. The Optionee agrees, for the benefit of the Company, that should
such an underwritten public offering be made and should the managing
underwriter of such offering require, the undersigned will not, without the
prior written consent of the Company and such underwriter, during the Lock Up
Period as defined herein: sell, transfer or otherwise dispose of, or agree to
sell, transfer or otherwise dispose of this Option or any of the Shares
acquired upon exercise of this Option during the Lock Up Period; or sell or
grant, or agree to sell or grant, options, rights or warrants with respect to
any of the Shares acquired upon exercise of this Option. The foregoing does not
prohibit gifts to donees or transfers by will or the laws of descent to heirs
or beneficiaries provided that such donees, heirs and beneficiaries shall be
bound by the restrictions set forth herein. The term “Lock Up Period” shall
mean the lesser of (x) 180 days or (y) the period during which Company officers
and directors are restricted by the managing underwriter from effecting any
sales or transfers of the Shares. The Lock Up Period shall commence on the
effective date of the Registration Statement.


 


(g)           Not An Employment Contract.  The
Option will not confer on the Optionee any right with respect to continuance of
employment or other service with the Company or any Subsidiary, nor will it
interfere in any way with any right the Company or any Subsidiary would
otherwise have to terminate or modify the terms of such Optionee’s employment
or other service at any time.


 


(h)           No Rights as Shareholder.  The
Optionee shall have no rights as a shareholder of the Company with respect to
any Shares prior to the date of issuance to the Optionee of a certificate for
such Shares.


 


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(i)            Compliance with Law and
Regulations.  This Option and the obligation of the Company to
sell and deliver Shares hereunder shall be subject to all applicable laws,
rules and regulations (including, but not limited to, federal securities laws)
and to such approvals by any government or regulatory agency as may be
required. This Option shall not be exercisable, and the Company shall not be
required to issue or deliver any certificates for Shares of Stock prior to the
completion of any registration or qualification of such Shares under any
federal or state law, or any rule or regulation of any government body which
the Company shall, in its sole discretion, determine to be necessary or
advisable. Moreover, this Option may not be exercised if its exercise or the
receipt of Shares of Stock pursuant thereto would be contrary to applicable
law.


 


(j)            Withholding.  All
deliveries and distributions under this Agreement are subject to withholding of
all applicable taxes. At the election of the Optionee, and subject to such
rules and limitations as may be established by the Committee from time to time,
such withholding obligations may be satisfied through the surrender of shares
of Stock which the Optionee already owns, or to which the Optionee is otherwise
entitled under the Plan.


 


4.             Termination of Employment.  Upon
the termination of the employment of Optionee prior to the expiration of the
Option, the following provisions shall apply:


 


(a)           Upon the Involuntary Termination of
Optionee’s employment or the voluntary termination or resignation of Optionee’s
employment, the Optionee may exercise the Option to the extent the Optionee was
vested in and entitled to exercise the Option at the date of such employment
termination for a period of three (3) months after the date of such employment
termination, or until the term of the Option has expired, whichever date is
earlier. To the extent the Optionee was not entitled to exercise this Option at
the date of such employment termination, or if Optionee does not exercise this
Option within the time specified herein, this Option shall terminate.


 


(b)           If the employment of an Optionee is
terminated by the Company for cause, then the Board or the Committee shall have
the right to cancel the Option.


 


5.             Death, Disability or Retirement
of Optionee.  Upon the death, Disability or Retirement, as
defined herein, of Optionee prior to the expiration of the Option, the
following provisions shall apply:


 


(a)           If the Optionee is at the time of his
Disability employed by the Company or a Subsidiary and has been in continuous
employment (as determined by the Committee in its sole discretion) since the
Date of Grant of the Option, then the Option may be exercised by the Optionee
for one (1) year following the date of such Disability or until the expiration
date of the Option, whichever date is earlier, but only to the extent the
Optionee was vested in and entitled to exercise the Option at the time of his
Disability. For purposes of this Section 5, the term “Disability” shall mean
that the Optionee is unable, by reason of a medically determinable physical or
mental impairment, to substantially perform the principal duties of employment
with the Company, which condition, in the opinion of a physician selected by
the Board, is expected to have a duration of not less than 120 days, unless the
Optionee is employed by the Company, a Parent, a Subsidiary or an Affiliate,
pursuant to an employment agreement which contains a definition of
“Disability,” in which case such definition shall control. The Committee, in
its sole discretion, shall determine whether an Optionee has a Disability and
the date of such Disability.


 


(b)           If the Optionee is at the time of his
death employed by the Company or a Subsidiary and has been in continuous
employment (as determined by the Committee in its sole discretion) since the
Date of Grant of the Option, then the Option may be exercised by the Optionee’s
estate or by a person who acquired the right to exercise the Option by will or
the laws of descent and distribution, for one (1) year following the date of
the Optionee’s death or until the expiration date of the Option, whichever date
is earlier, but only to the extent the Optionee was vested in and entitled to
exercise the Option at the time of death.


 


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(c)           If the Optionee is at the time of his
Retirement employed by the Company or a Subsidiary and has been in continuous
employment (as determined by the Committee in its sole discretion) since the
Date of Grant of the Option, then the Option may be exercised by the Optionee
for one (1) year following the date of the Optionee’s Retirement or until the
expiration date of the Option, whichever date is earlier, but only to the
extent the Optionee was vested in and entitled to exercise the Option at the
time of Retirement. For purposes of this Section 5, Retirement of the Optionee
shall mean, with the approval of the Committee, the occurrence of the
Optionee’s Date of Termination on or after the date the Optionee attains age
55.


 


(d)           If the Optionee dies within three (3)
months after Termination of Optionee’s employment with the Company or a
Subsidiary the Option may be exercised for nine (9) months following the date
of Optionee’s death or the expiration date of the Option, whichever date is
earlier, by the Optionee’s estate or by a person who acquires the right to
exercise the Option by will or the laws of descent or distribution, but only to
the extent the Optionee was vested in and entitled to exercise the Option at
the time of Termination.


 


6.             Termination of Relationship for
Misconduct; Clawback.  If the Board or the Committee reasonably
believes that the Optionee has committed an act of misconduct, it may suspend
the Optionee’s right to exercise this option pending a determination by the
Board or the Committee. If the Board or the Committee determines that the Optionee
has committed an act of misconduct or has breached a duty to the Company,
neither the Optionee nor the Optionee’s estate shall be entitled to exercise
the Option. For purposes of this Section 6, an act of misconduct shall include
embezzlement, fraud, dishonesty, nonpayment of an obligation owed to the
Company, breach of fiduciary duty or deliberate disregard of the Company’s
rules resulting in loss, damage or injury to the Company, or if the Optionee
makes an unauthorized disclosure of any Company trade secret or confidential
information, engages in any conduct constituting unfair competition with
respect to the Company, or induces any party to breach a contract with the
Company. In making such determination, the Board or the Committee shall act
fairly and shall give the Optionee an opportunity to appear and present
evidence on the Optionee’s behalf at a hearing before the Board or the
Committee. For purposes of this Section 6, an act of misconduct or breach of
fiduciary duty to the Company shall be an event giving the Company the right to
terminate Optionee’s employment pursuant to Section 1 of Optionee’s Employment
Agreement within the Company dated                                     ,
which Agreement is incorporated herein by reference. In addition, misconduct
shall include willful violations of federal or state securities laws. In making
such determination, the Board or the Committee shall act fairly and shall give
the Optionee an opportunity to appear and present evidence on the Optionee’s
behalf at a hearing before the Board or the Committee. In addition, if the
Company, based upon an opinion of legal counsel or a judicial determination,
determines that Section 304 of the Sarbanes-Oxley Act of 2002 is applicable to
Optionee hereunder, to the extent that the Company is required to prepare an
accounting restatement due to the material noncompliance of the Company, as a
result of misconduct, with any financial reporting requirement under the
securities laws, Optionee shall reimburse the Company for any compensation
received by Optionee from the Company during the 12-month period following the
first public issuance or filing with the Securities and Exchange Commission
(whichever first occurs) of the financial document embodying such financial
reporting requirement and any profits received from the sale of the Company’s
common stock or common stock equivalents, acquired pursuant to this Agreement.


 


7.             Optionee Bound by Plan.  The
Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be
bound by all the terms and provisions thereof. In the event of any question or
inconsistency between this Agreement and the Plan, the terms and conditions of
the Plan shall govern.


 


8.             Heirs and Successors.  This
Agreement shall be binding upon, and inure to the benefit of, the Company and
its successors and assigns, and upon any person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
Company’s assets and business. If any rights exercisable by the Optionee or
benefits deliverable to the Optionee under this Agreement have not been
exercised or delivered, respectively, at the time of the Optionee’s death, such
rights shall be exercisable by


 


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the Designated
Beneficiary, and such benefits shall be delivered to the Designated
Beneficiary, in accordance with the provisions of this agreement and the Plan.
The “Designated Beneficiary” shall be the beneficiary or beneficiaries
designated by the Optionee in a writing filed with the Committee in such form
and at such time as the Committee shall require. If a deceased Optionee fails
to designate a beneficiary, or if the Designated Beneficiary does not survive
the Optionee, any rights that would have been exercisable by the Optionee and
any benefits distributable to the Optionee shall be exercised by or distributed
to the legal representative of the estate of the Optionee. If a deceased
Optionee designates a beneficiary and the Designated Beneficiary survives the
Optionee but dies before the Designated Beneficiary’s exercise of all rights
under this Agreement or before the complete distribution of benefits to the
Designated Beneficiary under this Agreement, then any rights that would have
been exercisable by the Designated Beneficiary shall be exercised by the legal
representative of the estate of the Designated Beneficiary, and any benefits
distributable to the Designated Beneficiary shall be distributed to the legal
representative of the estate of the Designated Beneficiary.


 


9.             Plan Governs.  Notwithstanding
anything in this Agreement to the contrary, the terms of this Agreement shall
be subject to the terms of the Plan, a copy of which may be obtained by the
Optionee from the office of the Secretary of the Company; and this Agreement is
subject to all interpretations, amendments, rules and regulations promulgated
by the Committee from time to time pursuant to the Plan.


 


10.           Notices.  Any notice
hereunder to the Company shall be addressed to it at its principal executive
offices, located at 9725 South Robert Trail, Inver Grove Heights, Minnesota
55077, Attention: Chief Executive Officer; and any notice hereunder to the
Optionee shall be addressed to the Optionee at the address last appearing in
the employment records of the Company; subject to the right of either party to
designate at any time hereunder in writing some other address.


 


11.           Counterparts.  This
Agreement may be executed in two counterparts each of which shall constitute
one and the same instrument.


 


12.           Governing Law.  This
Agreement shall be governed by and construed in accordance with the laws of the
State of Minnesota, except to the extent preempted by federal law, without
regard to the principles of comity or the conflicts of law provisions of any
other jurisdiction.


 


IN WITNESS
WHEREOF, MedicalCV, Inc. has caused this Agreement to be executed by its Chief
Executive Officer and the Optionee has executed this Agreement, both as of the
day and year first above written.


 


 


	
   

  	
  MEDICALCV, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By Marc P. Flores

  
	
   

  	
  Its President and Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OPTIONEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Name]

  
	
   

  	
  [Address]

  
				



 


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EXHIBIT A


 


OPTION AND VESTING DATA


 


Name of Optionee:


 


Total Number of Shares
Subject to Option:


 


Date of Grant:


 


OPTION VESTING SCHEDULE


 




	
   

  	
   

  	
  NO. OF SHARES

  
	
  DATE

  	
   

  	
  VESTED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  






 


The above
vesting schedule assumes an ongoing relationship with the Company. Your rights
to exercise the unvested portion of your option will cease upon termination of
relationship with the Company, subject to Change in Control provisions set
forth in Section 9 of the Plan. Reference is made to the Plan and to relevant
sections of the Agreement between you and the Company for your rights to
exercise the vested portion of your option in the event of termination of your
relationship with the Company during lifetime or upon death. The above vesting
schedule is in all respects subject to the terms of those documents.


 


	
  OPTIONEE

  	
  MEDICALCV, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Name]

  	
  By Marc P. Flores 

  	
   

  
	
  [Address]

  	
  Its President and Chief
  Executive Officer

  	
   

  
				



 

















 


SCHEDULE I -
NOTATIONS AS TO PARTIAL EXERCISE


 


	
  Date of

  Exercise

  	
   

  	
  Number of

  Purchased

  Shares

  	
   

  	
  Balance of

  Shares on

  Option

  	
   

  	
  Authorized

  Signature

  	
   

  	
  Notation

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


6