EXHIBIT 10.4
GENTA INCORPORATED
NON-EMPLOYEE DIRECTORS'
1998 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of May 28th, 1998,
between GENTA INCORPORATED, a Delaware corporation (the "Company"), and the
other party signatory hereto (the "Optionee"). Capitalized terms used here
without definition shall have the meanings ascribed thereto in the Plan (as
defined below).
The Company's Non-Employee Directors' 1998 Stock Option Plan (the
"Plan") contemplates the grant of the stock option set forth in this Agreement.
The Plan is being submitted for approval by the Company's stockholders.
In consideration of the foregoing and of the mutual undertakings set
forth in this Agreement, the Company and the Optionee agree as follows:
SECTION 1. Grant of Option.
Subject to receipt of stockholder approval of the Plan, the Company
hereby grants to the Optionee the stock option (the "Option") referred to in
Section 5(c) of the Plan. It is intended that the Option shall not qualify as an
"incentive stock option" as defined in Section 422 of the Internal Revenue Code
of 1986, as amended.
SECTION 2. Exercisability.
Subject to the further terms of this Agreement, the Option shall become
exercisable in 16 substantially equal installments on the last day of each
calendar quarter after October 1, 1997 provided that adjustments to the number
of options as provided in
Section 5(c) of the Plan shall be pro-rated as to vesting over the remaining
quarterly periods after the adjustment. Unless earlier terminated pursuant to
the provisions of the Plan, the unexercised portion of the Option shall expire
and cease to be exercisable at 12:01 a.m. on the tenth anniversary of the date
of this Agreement.
SECTION 3. Method of Exercise.
The Option or any part thereof may be exercised only by the giving of
written notice to the Company on such form and in such manner as the Board of
Directors shall prescribe. Such written notice must be accompanied by payment of
the full purchase price for the number of shares being purchased. Such payment
may be made by one or a combination of the following methods: (a) by a certified
or official bank check (or the equivalent thereof acceptable to the Company);
(b) by delivery of shares of Common Stock acquired at least six months prior to
the option exercise date and having a Fair Market Value on the exercise date
equal to part or all of the purchase price; or (c) at the discretion of the
Board of Directors and to the extent permitted by law, by such other method as
the Board of Directors may authorize, including as contemplated by Section 7 of
the Plan. The date of the exercise of the Option shall be the date on which
written notice of exercise is delivered to the Company, during normal business
hours, at its address as provided in Section 9 of this Agreement, or if mailed,
the date on which it is postmarked, provided such notice is actually received.
SECTION 4. Termination of Employment; Death.
4.1 Upon termination of the Optionee's status as a director of the
Company for any reason (including death), the Option shall terminate and expire
except as provided in
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Section 4.2 or 4.3 of this Agreement.
4.2 If the Optionee's status as a director of the Company terminates for
any reason other than death, the Option shall be exercisable but only to the
extent it was exercisable at the time of such termination and only until the
earlier of the expiration date of the Option, determined pursuant to Section 2
of this Agreement, or the expiration of six months (or one year in the case of
termination by reason of disability) following the date of termination.
4.3 If the Optionee dies while a director of the Company or following
the termination of the Optionee's status as a director of the Company, but
during the period in which the Option is exercisable pursuant to Section 4.2 of
this Agreement, the Option shall be exercisable but only to the extent it was
exercisable at the time of death and only until the earlier of the expiration
date of the Option, determined pursuant to Section 2 of this Agreement, or the
first anniversary of the date of the Optionee's death.
SECTION 5. Plan Provisions to Prevail.
This Agreement is subject to all of the terms and provisions of the
Plan. Without limiting the generality of the foregoing, by entering into this
Agreement the Optionee agrees that no member of the Board of Directors shall be
liable for any action or determination made in good faith with respect to the
Plan or any award thereunder or this Agreement. In the event that there is any
inconsistency between the provisions of this Agreement and of the Plan, the
provisions of the Plan shall govern.
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SECTION 6. Nontransferability.
The Option shall not be assignable or transferable, voluntarily or
involuntarily, by operation of law, or otherwise, and any such assignment or
transfer which may be attempted shall be null and void and of no effect;
provided, however, that this Section 6 shall not prevent transfers 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.
SECTION 7. No Rights as a Shareholder
The Optionee shall have no rights as a shareholder of the Company with
respect to the shares subject to the Option until the issuance to the Optionee
of a stock certificate for such shares. Except as otherwise provided in Section
9 of the Plan, no adjustment shall be made for dividends, distributions or other
rights (whether ordinary or extraordinary, and whether in cash, securities or
other property) for which the record date is prior to the date such stock
certificate is issued.
SECTION 8. Right of Discharge Preserved.
Nothing in this Agreement shall confer upon the Optionee the right to
continue in the service of the Company as a director or affect any existing
right to terminate such service.
SECTION 9. Notices.
All notices required or permitted hereunder shall be given in writing by
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personal delivery; by confirmed facsimile transmission (with a copy dispatched
by express delivery or registered or certified mail); or by express delivery via
express mail or any reputable express courier service. Notice shall be addressed
(a) to Genta Incorporated, x/x Xxxxxxx X. Xxxxxx, 0000 Xxxxxxx Xxxxxxx Xx., Xxx
Xxxxx, Xxxxxxxxxx 00000; and (b) to the Optionee at the address set forth on the
signature page hereto; or (c) as to either party, at such other address as may
be designated by notice in the manner set forth herein. Notices which are
delivered personally, by confirmed facsimile transmission, or by courier as
aforesaid, shall be effective on the date of delivery.
SECTION 10. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and assigns of the Company and, to the extent
consistent with Section 4 of this Agreement and with the Plan, the heirs and
personal representatives of the Optionee.
SECTION 11. Entire Contract; Waiver; Amendment.
This Agreement constitutes the entire contract between the parties
hereto and supersedes all prior oral and written agreements between the parties
with regard to the subject matter hereof. No waiver of any breach or condition
of this Agreement shall be deemed to be a waiver of any other or subsequent
breach or condition, whether of like or different nature. This Agreement may be
amended as provided in Section 10 of the Plan.
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SECTION 12. Severability.
If any provision of this Agreement (including any provision of the Plan
that is incorporated herein by reference) shall hereafter be held to be invalid,
unenforceable or illegal in whole or in part, in any jurisdiction under any
circumstances for any reason, (a) such provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal while preserving the intent of the parties as expressed in, and the
benefits to the parties provided by, this Agreement and the Plan or (b) if such
provision cannot be so reformed, such provision shall be severed from this
Agreement and an equitable adjustment shall be made to this Agreement
(including, without limitation, addition of necessary further provisions to this
Agreement) so as to give effect to the intent as so expressed and the benefits
so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement or the Plan.
SECTION 13. Governing Law.
This Agreement shall be interpreted, construed and administered in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws, as they apply to contracts made, delivered and
performed in the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the date and year first written above.
GENTA INCORPORATED
By: ___________________________
Name: Xxxxxxx X. Xxxxxx, Ph.D.
Title: President
OPTIONEE
______________________________
______________________________
Address
______________________________
______________________________
______________________________
Social Security Number
