Ex-4.1 Thomas Fitzgerald Warrant



 






Exhibit 4.1




SINOFRESH HEALTHCARE, INC.




NON-QUALIFIED STOCK OPTION AGREEMENT

FOR

THOMAS FITZGERALD




Agreement




     1. Grant of Option. SinoFresh Healthcare, Inc., a Florida corporation (the “Company”) hereby issues this
option agreement to evidence an option (the “Option”) committed to Thomas Fitzgerald (“Optionee”) by the Company
as of May 31, 2005 (which date shall be deemed the “Date of Grant”) and which Option is assumed by the Company.
This is an Option to purchase up to 10,000 shares of the Company’s Common Stock, no par value (the “Stock”), at
an exercise price per share equal to One Dollar ($1.00) (the “Option Price”). This Option shall be subject to
the terms and conditions set forth herein. This Option is a nonqualified stock option, and not an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).



     2.  Exercise Schedule. This Option is exercisable immediately.



     3. Method of Exercise. This Option shall be exercisable in whole or in part by written notice which shall
state the election to exercise this Option, the number of shares of Stock in respect of which this Option is
being exercised, and such other representations and agreements as to the holder’s investment intent with respect
to such shares of Stock as may be required by the Company. Such written notice shall be signed by the Optionee
and shall be delivered in person or by certified mail to the President of the Company. The written notice shall
be accompanied by payment of the exercise price. This Option shall be deemed to be exercised after (a) receipt
by the Company of such written notice accompanied by the exercise price, and (b) arrangements that are
satisfactory to the Board of Directors in its sole discretion have been made for Optionee’s payment to the
Company of the amount that is necessary to be withheld in accordance with applicable Federal or state withholding
requirements. No shares of Stock will be issued pursuant to this Option unless and until such issuance and such
exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock
exchange upon which the Stock then may be traded.



     4. Method of Payment. Payment of the exercise price shall be by any of the following, or a combination
thereof, at the election of the Optionee: (a) cash; (b) check; (c) with shares that have been held by the
Optionee for at least 6 months (or such other shares as the Company determines will not cause the Company to
recognize for financial accounting purposes a charge for compensation expense); (d) subject to there being an
effective Form S-8 registration statement (or other applicable registration) in place for this Option, 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 Company shall require to effect an exercise of this Option
and delivery to the Company by a licensed broker acceptable to the Company of proceeds from the sale of Stock or
a margin loan sufficient to pay the Option Price and any



 









 




applicable income or employment taxes; or (d) such other consideration or in such other manner as may be determined by the Board of Directors in its absolute discretion.




     This Option may also be exercised by a cashless exercise procedure pursuant to a formula (“Formula
Cashless Exercise”), or a combination of cash and Formula Cashless Exercise. In the event of a Formula Cashless
Exercise, the Optionee shall surrender this Option to the Company with a written notice of the Optionee’s
intention to effect a cashless exercise, including a calculation of the number of shares of common stock to be
issued upon such exercise in accordance with the terms hereof; and, in lieu of paying the Option Price in cash,
the Optionee shall surrender this Option for that number of shares of common stock determined by multiplying the
number of shares of common stock to which it would otherwise be entitled by a fraction, the numerator of which
shall be the difference between (i) the average Market Price per share of the common stock for the five (5)
Trading Days immediately prior to the date of delivery of the cashless exercise notice to the Company (the
“Cashless Exercise Market Price”) and (ii) the Option Price, and the denominator of which shall be the Cashless
Exercise Market Price. As used herein, “Market Price” means, as of any Trading Day, (i) the closing sale price
for the shares of common stock on the NASD OTC Bulletin Board (“OTCBB”) as reported by Bloomberg, or (ii) if the
OTCBB is not the principal trading market for the shares of Common Stock, the closing sale price on the principal
trading market for the common stock as reported by Bloomberg, or (iii) if market value cannot be calculated as of
such date on any of the foregoing basis, the Market Price shall be the fair market value as reasonably determined
in good faith by the Company’s Board of Directors. As used herein, a “Trading Day” shall mean any day on which
the common Stock is traded for any period on the OTCBB, or on the principal securities exchange or other
securities market on which the common stock is then being traded.”



     5. Termination of Option.



          (a) This Option shall terminate and become null and void on the fifth (5th) anniversary of
the Date of Grant.




          (b) To the extent not previously exercised, (i) this Option shall terminate immediately in
the event of (1) the liquidation or dissolution of the Company, or (2) any reorganization, merger, consolidation
or other form of corporate transaction in which the Company does not survive, or the Company’s outstanding shares
are converted into or exchanged for securities issued by another entity, or an affiliate of such successor or
acquiring entity, unless the successor or acquiring entity, or a parent or subsidiary of such successor or
acquiring entity, assumes this Option or substitutes an equivalent option or right pursuant to Section 6 below,
and (ii) the Board of Directors in its sole discretion may by written notice (“cancellation notice”) cancel,
effective upon the consummation of a corporate transaction described in Section 5(b)(A) below in which the
Company does survive, this Option (or portion thereof) that remains unexercised on such date. The Board of
Directors shall give written notice of any proposed transaction referred to in this Section 5(b) a reasonable
period of time prior to the closing date for such transaction (which notice may be given either before or after
approval of such transaction), in order that the Optionee may have a reasonable period of time prior to the
closing date of such transaction within which to exercise this Option if and to the extent that it then is
exercisable. The Optionee may condition his exercise of this Option upon the consummation of a transaction
referred to in this Section 5(b).





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          (A) As used in Section 5(b) above, a corporate transaction in which the Company
does survive shall mean the approval by the shareholders of the Company of a reorganization, merger,
consolidation or other form of corporate transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately prior to such reorganization, merger or
consolidation or other transaction do not, immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized, merged or consolidated company’s then
outstanding voting securities, or a liquidation or dissolution of the Company or the sale of all or substantially
all of the assets of the Company (unless such reorganization, merger, consolidation or other corporate
transaction, liquidation, dissolution or sale (any such event being referred to as a “Corporate Transaction”) is
subsequently abandoned).




          (c) Notwithstanding anything to the contrary contained in this Agreement, the merger of
the Company with and into SinoFresh Acquisition Corp., a Florida corporation, shall not constitute a corporate
transaction subject to this Section 5.




     6. Stock Dividend or Reorganization.



          (a) If (i) the Company shall at any time be involved in a transaction described in Section
424(a) of the Code (or any successor provision) or any “corporate transaction” described in the regulations
thereunder; (ii) the Company shall declare a dividend payable in, or shall subdivide or combine, its Common Stock
or (iii) any other event with substantially the same effect shall occur, the Board of Directors shall, subject to
applicable law, with respect to this Option, proportionately adjust the number of shares of Common Stock subject
to this Option and/or the exercise price per share so as to preserve the rights of the Optionee substantially
proportionate to the rights of the Optionee prior to such event.




          (b) In the event that the presently authorized capital stock of the Company is changed
into the same number of shares with a different par value, or without par value, the stock resulting from any
such change shall be deemed to be Common Stock within the meaning of this Option, and this Option shall apply to
the same number of shares of such new stock as it applied to old shares immediately prior to such change.




          (c) If the Company shall at any time declare an extraordinary dividend with respect to the
Common Stock, whether payable in cash or other property, the Board of Directors may, subject to applicable law,
in the exercise of its sole discretion and with respect to this Option, proportionately adjust the number of
shares of Common Stock subject to this Option and/or adjust the exercise price per share so as to preserve the
rights of the Optionee substantially proportionate to the rights of the Optionee prior to such event.




          (d) The foregoing adjustments in the shares subject to this Option shall be made by the
Board of Directors, or by the applicable terms of any assumption or substitution document.




          (e) The grant of this Option shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to
merge, consolidate or dissolve, to liquidate or to sell or transfer all or any





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part of its business or assets.




     7. Transferability. Unless otherwise determined by the Board of Directors, this Option is not transferable
otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the
Optionee this Option shall be exercisable only by the Optionee or the Optionee’s guardian or legal
representative. In addition, this Option shall not be assigned, negotiated, pledged or hypothecated in any way
(whether by operation of law or otherwise), and this Option shall not be subject to execution, attachment or
similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate this Option, or in the
event of any levy upon this Option by reason of any execution, attachment or similar process contrary to the
provisions hereof, this Option shall immediately become null and void. The terms of this Option shall be binding
upon the executors, administrators, heirs, successors and assigns of the Optionee.



     8. No Rights of Stockholders. Neither the Optionee nor any personal representative (or beneficiary) shall
be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any shares of
Stock purchasable or issuable upon the exercise of this Option, in whole or in part, prior to the date of
exercise of this Option.



     9. No Right to Employment. Neither this Option nor this Agreement shall confer upon the Optionee any right
to employment or service with the Company.



     10.  Law Governing. This Agreement shall be governed in accordance with and governed by the internal laws of
the State of Florida.



     11. Notices. Any notice under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered personally or when deposited in the United States mail, registered, postage prepaid, and
addressed, in the case of the Company, to the Company’s President at 516 Paul Morris Drive, Englewood, Florida
34223, or if the Company should move its principal office, to such principal office, and, in the case of the
Optionee, to the Optionee’s last permanent address as shown on the Company’s records, subject to the right of
either party to designate some other address at any time hereafter in a notice satisfying the requirements of
this Section.



     12. Tax Consequences. Set forth below is a brief summary as of the date of this Option of some of the
federal tax consequences of exercise of this Option and disposition of the Stock. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THIS OPTION OR DISPOSING OF THE SHARES OF STOCK.



          (a) 
Exercise of Option. There may be a regular federal income tax liability upon the
exercise of this Option. The Optionee will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the fair market value of the Stock on the date of
exercise over the Option Price. If Optionee is an employee, the Company will be required to withhold from
Optionee’s compensation or collect from Optionee







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and pay to the applicable taxing authorities an amount equal to
a percentage of this compensation income at the time of exercise.




          (b) Disposition of Stock. If the Stock is held for at least one year, any gain
realized on disposition of the Stock will be treated as long-term capital gain for federal income tax purposes.




     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.



	 	 	 	 	 
	 	 	COMPANY:
	 
	 	 	 	 
	 	 	SinoFresh Healthcare, Inc., a Florida corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Name: Charles Fust
	 	 	Title: Chairman and CEO






     Optionee has reviewed this Option in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Option, and fully understands all provisions of this Option.



	 	 	 
	 

	 	OPTIONEE:
	 
	 	 
	 

	 	 
	 

	 	Name: [Thomas Fitzgerald]






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