exhibit10-35.htm


    EXHIBIT
10.35

     

    WAFERGEN
BIO-SYSTEMS, INC.

    2008
EQUITY INCENTIVE PLAN

    


    NONQUALIFIED
STOCK OPTION AGREEMENT

    


    


                          This
NONQUALIFIED STOCK OPTION AGREEMENT (the “Option Agreement”), dated as of the
__th day of  _______________  (the “Grant Date”), is between
Wafergen Bio-systems, Inc., a Nevada corporation (the “Company”),
and                           (the
“Optionee”), a key employee of the Company or of a Subsidiary of the Company (a
“Related Corporation”), pursuant to the Wafergen Bio-systems, Inc. 200X Equity
Incentive Plan (the “Plan”).

    


                          WHEREAS,
the Company desires to give the Optionee the opportunity to purchase shares of
common stock of the Company, par value $0.001 (“Common Shares”) in accordance
with the provisions of the Plan, a copy of which is attached
hereto;

    


                          NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto, intending to be
legally bound hereby, agree as follows:

    


                          1.           Grant of
Option.  The Company hereby grants to the Optionee the right
and option (the “Option”) to purchase all or any part of an aggregate
of Common Shares.  The Option is in all respects limited and
conditioned as hereinafter provided, and is subject in all respects to the terms
and conditions of the Plan now in effect and as it may be amended from time to
time (but only to the extent that such amendments apply to outstanding
options).  Such terms and conditions are incorporated herein by
reference, made a part hereof, and shall control in the event of any conflict
with any other terms of this Option Agreement.  The Option granted
hereunder is intended to be a nonqualified stock option (“NQSO”) and not an incentive
stock option (“ISO”) as such term is defined in section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”).

    


                          2.           Exercise
Price.  The exercise price of the Common Shares covered by this
Option shall be $      per share.  It is
the determination of the committee administering the Plan (the “Committee”) that
on the Grant Date the exercise price was not less than the greater of (i) 100%
of the “Fair Market Value” (as defined in the Plan) of a Common Share, or (ii)
the par value of a Common Share.

    


                          3.           Term.  Unless
earlier terminated pursuant to any provision of the Plan or of this Option
Agreement, this Option shall expire on ________________ (the “Expiration Date”),
which date is not more than 10 years from the Grant Date.  This Option
shall not be exercisable on or after the Expiration Date.

    


    


    


    
      
        
          
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    4.           Exercise of
Option.  The Option shall vest with respect to the first 25% of
the shares when the Optionee completes 12 months of continuous Services after
the Vesting Start Date, and with respect to an additional 1/48th of the
Shares when the Optionee completes each full month of continuous Service
thereafter such that 100% of the shares will be fully vested on the 4th
anniversary of the grant date.

    


    The
Committee may accelerate any exercise date of the Option, in its discretion, if
it deem such acceleration to be desirable. Once the Option become exercisable,
it will remain exercisable until it is exercised or until it
terminates.

    


                          5.           Method of Exercising
Option.  Subject to the terms and conditions of this Option
Agreement and the Plan, the Option may be exercised by written notice to the
Company at its principal office, which is presently located at
Bayside Technology Center, 46531 Fremont Blvd., Fremont, California,
94538.  The form of such notice is attached hereto and shall state the
election to exercise the Option and the number of whole shares with respect to
which it is being exercised; shall be signed by the person or persons so
exercising the Option; and shall be accompanied by payment of the full exercise
price of such shares.  Only full shares will be issued.

    


                          The
exercise price shall be paid to the Company –

    


                          (a)           in
cash, or by certified check, bank draft, or postal or express money
order;

    


                          (b)           through
the delivery of Common Shares;

    


                          (c)           by
delivering a properly executed notice of exercise of the Option to the Company
and a broker, with irrevocable instructions to the broker promptly to deliver to
the Company the amount necessary to pay the exercise price of the
Option;

    


                          (d)           in
Common Shares newly acquired by the Optionee upon the exercise of the Option;
or

    


                          (e)           in
any combination of (a), (b), (c), or (d) above.

    


    In the
event the exercise price is paid, in whole or in part, with Common Shares, the
portion of the exercise price so paid shall be equal to the Fair Market Value of
the Common Shares surrendered on the date of exercise.

    


                          Upon
receipt of notice of exercise and payment, the Company shall deliver a
certificate or certificates representing the Common Shares with respect to which
the Option is so exercised. The Optionee shall obtain the rights of a
shareholder upon receipt of a certificate(s) representing such Common
Shares.

    


    
      
        
          
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                          Such
certificate(s) shall be registered in the name of the person so exercising the
Option (or, if the Option is exercised by the Optionee and if the Optionee so
requests in the notice exercising the Option, shall be registered in the name of
the Optionee and the Optionee’s spouse, jointly, with right of survivorship) and
shall be delivered as provided above to, or upon the written order of, the
person exercising the Option.  In the event the Option is
exercised by any person or persons after the death or disability (as determined
in accordance with section 22(e)(3) of the Code) of the Optionee, the notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise the Option.  All Common Shares that are purchased upon
exercise of the Option as provided herein shall be fully paid and
non-assessable.

    


                          Upon
exercise of the Option, Optionee shall be responsible for all employment and
income taxes then or thereafter due (whether Federal, State or local), and if
the Optionee does not remit to the Company sufficient cash (or, with the consent
of the Committee, Common Shares to satisfy all applicable withholding
requirements, the Company shall be entitled to satisfy any withholding
requirements for any such tax by disposing of Common Shares at exercise,
withholding cash from Optionee’s salary or other compensation or such other
means as the Committee considers appropriate to the fullest extent permitted by
applicable law.  Nothing in the preceding sentence shall impair or
limit the Company’s rights with respect to satisfying withholding obligations
under Section 10 of the Plan.

    


                          6.           Transferability of
Option.  This Option is not assignable or transferable, in
whole or in part, by the Optionee other than by will or by the laws of descent
and distribution.  During the lifetime of the Optionee, the Option
shall be exercisable only by the Optionee or, in the event of his or her
disability, by his or her guardian or legal representative.

    


                          7.           Termination of Service by
Optionee.  If the Optionee’s service with the Company and all
Related Corporations is terminated by the Optionee for any reason other than
death or disability prior to the Expiration Date, this Option may be exercised,
to the extent of the number of Common Shares with respect to which the Optionee
could have exercised it on the date of such termination of service by the
Optionee at any time prior to the earlier of (i) the Expiration Date or
(ii) 30 days after the date of such termination of service.  Any part
of the Option that was not exercisable immediately before the Optionee’s
termination of service shall terminate at that time.

    


                          8.           Death or Disability.  If
the Optionee dies or becomes Disabled during his or her service and, prior to
the Expiration Date, the Optionee’s service is terminated as a consequence of
such death or Disability, then this Option may be exercised, to the extent of
the number of Common Shares with respect to which the Optionee could have
exercised it on the date of such termination of service by the Optionee or by
the optionee’s legal representative, at any time prior to the earlier of (i) the
Expiration Date or (ii) one year after such termination of
service.  Any part of the Option that was not exercisable immediately
before the Optionee’s termination of service shall terminate at that
time.

    


    


    


    


    
      
        
          
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    9.           Termination of Service by
Company without Cause or by Optionee with Good Reason.  If the
Optionee’s service with the Company and all Related Corporations is terminated
by the Company for any reason other than Cause (or is terminated by the Optionee
for Good Reason) prior to the Expiration Date, this Option may be exercised, to
the extent of the number of Common Shares with respect to which the Optionee
could have exercised it on the date of such termination of employment by the
Optionee at any time prior to the earlier of (i) the Expiration Date, or (ii)
one year after such termination of service.  Any part of the Option
that was not exercisable immediately before the Optionee’s termination of
employment shall terminate at that time.

    


                          10.           [Reserved].

    


                          11.           Termination for
Cause.  If the Optionee’s service with the Company and all
Related Corporations is terminated by the Company for Cause prior to the
Expiration Date, any unexercised portion of this Option shall immediately
terminate at that time.

    


                          12.           Securities
Matters.  (a)  If, at any time, counsel to the
Company shall determine that the listing, registration or qualification of the
Common Shares subject to the Option upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental or
regulatory body, or that the disclosure of non-public information or the
satisfaction of any other condition is necessary as a condition of, or in
connection with, the issuance or purchase of Common Shares hereunder, such
Option may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval, or satisfaction of such
condition shall have been effected or obtained on conditions acceptable to the
Board of Directors.  The Company shall be under no obligation to apply
for or to obtain such listing, registration or qualification, or to satisfy such
condition.  The Committee shall inform the Optionee in writing of any
decision to defer or prohibit the exercise of an Option.  During the
period that the effectiveness of the exercise of an Option has been deferred or
prohibited, the Optionee may, by written notice, withdraw the Optionee’s
decision to exercise and obtain a refund of any amount paid with respect
thereto.

    


                          (b)           The
Company may require: (i) the Optionee (or any other person exercising the Option
in the case of the Optionee’s death or Disability) as a condition of exercising
the Option, to give written assurances, in substance and form satisfactory to
the Company, to the effect that such person is acquiring the Common Shares
subject to the Option for his or her own account for investment and not with any
present intention of selling or otherwise distributing the same, and to make
such other representations or covenants; and (ii) that any certificates for
Common Shares delivered in connection with the exercise of the Option bear such
legends, in each case as the Company deems necessary or appropriate, in order to
comply with federal and applicable state securities laws, to comply with
covenants or representations made by the Company in connection with any public
offering of its Common Shares or otherwise.  The Optionee
specifically understands and agrees that the Common Shares, if and when issued
upon exercise of the Option, may be “restricted securities,” as that term is
defined in Rule 144 under the Securities Act of 1933 and, accordingly, the
Optionee may be required to hold the shares indefinitely unless they are
registered under such Securities Act of 1933, as amended, or an exemption from
such registration is available.

    


    
      
        
          
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                          (c)           The
Optionee shall have no rights as a shareholder with respect to any Common Shares
covered by the Option (including, without limitation, any rights to receive
dividends or non-cash distributions with respect to such shares) until the date
of issue of a stock certificate to the Optionee for such Common
Shares.  No adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is
issued.

    


                          13.           Governing
Law.  This Option Agreement shall be governed by the applicable
Code provisions to the maximum extent possible.  Otherwise, the laws
of the State of Delaware (without reference to the principles of conflict of
laws) shall govern the operation of, and the rights of the Optionee under, the
Plan and Options granted thereunder.

    


                          IN
WITNESS WHEREOF, the Company has caused this Nonqualified Stock Option Agreement
to be duly executed by its duly authorized officer, and the Optionee has
hereunto set his or her hand and seal, all as of the ____ day of __________,
200X.

    


    


                                                                    WAFERGEN
BIO-SYSTEMS, INC.

    


    


                                                                    _______________________________

                                                                    By:

    


    


    


    


                                                                    _______________________________

    
      	 	
              Optionee:

            


    

    


     

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