STOCK OPTION AMENDMENT AGREEMENT
This
Agreement is made and entered into effective the 27th day of April, 2007 between
SyntheMed, Inc. (the "Company") and the undersigned holder of options to
purchase shares of the Company's common stock (the "Optionee").
WHEREAS,
the Company previously granted to Optionee an option to purchase 25,148 shares
of the Company's common stock at an exercise price of $0.14 per share, with
an
expiration date of May 31, 2007 (the "Option").
WHEREAS,
the Company has entered into a formal Stock Option Agreement evidencing the
Option (the "Option Agreement").
WHEREAS,
the Company and the Optionee desire to
amend
the Option to add a cashless exercise feature, in consideration for which the
Optionee has agreed that, upon exercise, the underlying shares will be subject
to forfeiture under certain circumstances and not transferable for a period
of
one year.
NOW
THEREFORE, the parties hereby agree as follows:
1.
Cashless
Exercise.
The
Option Agreement is hereby amended to permit the Optionee to satisfy its
obligation to pay the exercise price through a “cashless exercise.” Upon notice
to the Company by the Optionee that the Optionee exercises the Option on a
“cashless” basis, the Company shall issue to the Optionee, in full satisfaction
of such exercise, the number of shares of common stock determined as
follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of shares to be issued to the Optionee.
Y
= the
number of shares with respect to which the Option is being
exercised.
A
= the
common stock closing price on the date immediately prior to the date of
exercise.
B
= the
Option exercise price.
2.
Transferability.
Until
the first anniversary of the date of exercise, any and all shares issued upon
exercise of the Option shall not be transferable without the prior consent
of
the Compensation Committee of the Board of Directors, whether by sale,
assignment, exchange, pledge or by operation of law except (i) pursuant to
a
qualified domestic relations order as defined for purposes of Employee
Retirement Income Security Act of 1974, as amended, or (ii) by gift: to a member
of the "Family" (as defined below) of the Optionee, to or for the benefit of
one
or more organizations qualifying under Code sec. 501(c)(3) and 170(c)(2)(a
"Charitable Organization") or to a trust for the exclusive benefit of the
Optionee, one or more members of the Optionee's Family, one or more Charitable
Organizations, or any combination of the foregoing, provided that any such
transferee shall enter into a written agreement to be bound by the terms of
this
Agreement. For this purpose, "Family" shall mean the ancestors, spouse,
siblings, spouses of siblings, lineal descendants and spouses of lineal
descendants of the Optionee.
The
Company shall not be required to transfer on its books any of the shares issued
upon exercise of the Option that shall have been sold or transferred in
violation of the provisions set forth in this Agreement, or to
treat
any
transferee to whom such shares have been so sold or transferred as a stockholder
of the Company.
3.
Forfeiture.
Until
the first anniversary of the date of exercise, any and all shares issued upon
exercise of the Option shall be forfeited to the Company upon any termination
of
Optionee’s employment with the Company by the Optionee without “Good Reason” or
by the Company for “Cause”, as those terms are defined in the Optionee’s
employment agreement with the Company.
4.
Stock
Certificates.
Any
stock certificates issued for shares upon exercise of the Option shall contain
the following legend:
The
securities represented by this certificate are subject to restrictions on
forfeiture and transferability for a period of one year from original issuance,
pursuant to the terms of a Stock Option Amendment Agreement entered into by
the
Company with the registered owner of this certificate or the registered owner’s
predecessor in interest. Copies of said agreement may be obtained upon written
request to the Secretary of the Company by the registered owner hereof. These
securities may be cancelled and retired by the Company in the circumstances
set
forth in the Stock Option Amendment Agreement, in which case this Certificate
shall be null and void.
The
Company will cause the foregoing legend to be removed upon request by the
Optionee given at any time on or after the first anniversary of the exercise
of
the Option, but only if the Optionee is otherwise in compliance with the
Optionee’s obligations hereunder and has satisfied or made arrangements
acceptable to the Company to satisfy the Optionee’s withholding tax obligations
in respect of the shares.
5.
Rights
as a Stockholder.
Except
as otherwise provided herein, the registered owner of any certificate issued
in
respect of shares issued upon exercise of the Option shall until forfeiture
be
entitled to all rights of a stockholder of the Company, including the right
to
vote such shares and to receive dividends and/or other distributions, if any,
declared on such shares.
Upon any
forfeiture of such shares pursuant to the provisions of this Agreement, the
Company shall be entitled to treat the forfeited as not outstanding, and the
registered owner of any certificate representing such shares shall have no
rights as a stockholder of the Company.
6.
Entire
Agreement.
This
Agreement, together with the Option Agreement (to the extent not expressly
amended hereby), represents the entire agreement of the parties with respect
to
the Option and supersedes any and all previous contracts, arrangements or
understandings between the parties with respect to the Option. This Agreement
may be amended at any time only by means of a writing signed by the Optionee
and
an authorized officer of the Company.
7.
Continuation
of Option Agreement.
Except
for the changes effected hereby, no other terms or provisions of the Option
Agreement have been modified as a result of this Agreement, and those terms
and
provisions shall continue in full force and effect.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the day and year
indicated above.
By:
/s/
Xxxxxxx X. Xxxxxxxx, MD
Title:
Chairman of the Board
OPTIONEE
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
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