EXHIBIT 4.5
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "AGREEMENT"), dated as
of November 30, 1999, is entered into between Interleukin Genetics, Inc., a
Texas corporation (the "COMPANY") and Xxxxxx Xxxxxx ("OPTIONEE").
RECITALS
A. The Company desires to have Optionee become Chairman of the Board of
Directors of the Company, encourage the stock ownership of Optionee and increase
Optionee's proprietary interest in the Company.
B. The Company desires to grant to Optionee the option to purchase up to
351,394 shares of the Common Stock (as defined below) of the Company.
AGREEMENTS
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to Optionee the option to purchase, during
the period commencing on the date of this Agreement and ending December 31,
2010, at an exercise price equal to $2.875 per share (the "OPTION PRICE"), up
to, but not exceeding the aggregate of 351,394 shares of Common Stock, no par
value (the "COMMON STOCK"), of the Company (such option being hereinafter
referred to as the "OPTION").
2. NON-QUALIFIED STATUS. The Option is intended to be a non-qualified stock
option which does not satisfy the requirements of Section 422A of the Internal
Revenue Code of 1986, as amended (the "CODE"). The Option is granted outside of
and therefore shall not be subject to the terms and provisions of the Company's
1996 Equity Incentive Plan, as amended.
3. VESTING OF OPTION. The Option evidenced hereby may be exercised from time
to time as to the following numbers of shares, on a cumulative basis (as to
options to purchase shares not previously exercised), on each of the following
dates if Optionee serves on the Board of Directors of the Company on such date:
(a) 9,760 shares on December 31, 1999
(b) 9,760 shares on January 31, 2000
(c) 9,760 shares on February 29, 2000
(d) 9,760 shares on March 31, 2000
(e) 9,760 shares on April 30, 2000
(f) 9,760 shares on May 31, 2000
(g) 9,760 shares on June 30, 2000
(h) 9,760 shares on July 31, 2000
(i) 9,760 shares on August 31, 2000
(j) 9,760 shares on September 30, 2000
(k) 9,760 shares on October 31, 2000
(l) 9,760 shares on November 30, 2000
(m) 9,760 shares on December 31, 2000
(n) 9,760 shares on January 31, 2001
(o) 9,760 shares on February 28, 2001
(p) 9,760 shares on March 31, 2001
(q) 9,760 shares on April 30, 2001
(r) 9,760 shares on May 31, 2001
(s) 9,760 shares on June 30, 2001
(t) 9,760 shares on July 31, 2001
(u) 9,760 shares on August 31, 2001
(v) 9,760 shares on September 30, 2001
(w) 9,760 shares on October 31, 2001
(x) 9,760 shares on November 30, 2001
(y) 9,760 shares on December 31, 2001
(z) 9,760 shares on January 31, 2002
(aa) 9,760 shares on February 28, 2002
(bb) 9,760 shares on Xxxxx 00, 0000
(xx) 9,760 shares on April 30, 2002
(dd) 9,760 shares on May 31, 2002
(ee) 9,760 shares on June 30, 2002
(ff) 9,760 shares on July 31, 2002
(gg) 9,760 shares on August 31, 2002
(hh) 9,760 shares on September 30, 2002
(ii) 9,760 shares on October 31, 2002
(jj) 9,794 shares on November 30, 2002
4. ACCELERATION OF VESTING. Notwithstanding the foregoing, in the event
Optionee is (i) not nominated by the Board of Directors or committee thereof for
election to the Board of Directors at a meeting of the shareholders of the
Company called for that purpose and, as a result thereof, is not elected and
shall no longer serve on the Board of Directors of the Company, or (ii) removed
from the Board of Directors without cause, then the Option shall become
exercisable in full.
5. EXERCISE OF OPTION. The Option shall be deemed exercised when Optionee (a)
shall indicate the decision to do so in writing delivered to the Company and (b)
shall at the same time tender to the Company payment in full of the Option Price
for the shares for which the Option is exercised. The Option may be exercised
for any lesser number of shares than the full amount for which it could be
exercised. Such a partial exercise of the Option shall not affect the right to
exercise the Option from time to time in accordance with the provisions
contained herein for the remaining shares subject to the Option. Upon compliance
with the foregoing, the Company shall cause certificates for the shares so
purchased to be delivered to Optionee, his legal
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representative or such other person who is entitled to exercise the Option (in
accordance with the provisions of paragraph 6) at its principal business office.
In no event may the Option be exercised after December 31, 2010.
6. NON-TRANSFERABILITY OF OPTIONS. The Option granted to Optionee shall not
be transferable by Optionee except by will or under the laws of descent and
distribution, and shall be exercisable, during his lifetime, only by him. Any
assignment or transfer of the Option except by will or under the laws of descent
and distribution, whether voluntarily or involuntarily, by operation of law or
otherwise, shall not vest in the assignee or transferee any interest or rights
whatsoever, but immediately upon such assignment or transfer the Option shall
terminate and become of no further effect.
7. EARLY FORFEITURE OF OPTION. The Option shall terminate on the date 30 days
after the date Optionee ceases to be a member of the Board of Directors of the
Company (and shall not be exercisable thereafter), unless Optionee shall (a) die
while a member of the Board of Directors of the Company, (b) be permanently or
totally disabled within the meaning of Section 22(e)(3) of the Code while a
member of the Board of Directors of the Company, (c) resign or retire as
Chairman of the Board of Directors with the written consent of the Company, or
(d) cease to be a member of the Board of Directors of the Company as a result of
the circumstances set forth in Section 4 hereof. In the event either (a), (b),
(c) or (d) shall occur, Optionee, or his legatees under his will or his personal
representatives, as the case may be, may exercise the previously unexercised
portion of the Option for a period of 365 days after such death, disability,
resignation or retirement, to the extent Optionee could have exercised it
immediately prior to such death, disability, resignation or retirement, as the
case may be.
8. In the event the Option granted under this Agreement shall be exercised by
the legal representative of the deceased Optionee, or by a person who acquired
the Option granted hereunder by bequest or inheritance or by reason of the death
of the deceased Optionee, written notice of such exercise shall be accompanied
by certified copy of letters testamentary or equivalent proof of the right of
such legal representative or other person to exercise such option.
9. ADJUSTMENT OF SHARES. Notwithstanding any other provision contained
herein, in the event of any change in the outstanding Common Stock by reason of
a stock dividend, stock split, reorganization, recapitalization, merger,
split-up or other change in capital structure, an adjustment may be made by the
Company, in its sole and absolute discretion, to prevent dilution or enlargement
of Optionee's rights hereunder, and the determination of the Company as to these
matters shall be conclusive.
10. ISSUANCE OF STOCK CERTIFICATES; LEGENDS AND PAYMENT OF EXPENSES. Upon any
exercise of Option which may be granted hereunder and the payment of the
exercise price, a certificate or certificates representing the shares as to
which the Option has been exercised shall be issued by the Company in the name
of Optionee and shall be delivered to or upon the order of Optionee.
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11. The Company may, in its discretion, endorse an appropriate legend upon the
certificate or certificates representing any shares issued or transferred
pursuant to the exercise of any Option granted hereunder and may issue "stop
transfer" instructions to its transfer agent in respect of such shares to (a)
prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT") or
(b) implement the provisions of any agreement between the Company and Optionee
with respect to such shares.
12. The Company shall pay all issue or transfer taxes with respect to the
issuance or transfer of shares, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by Optionee unless such Registration Statement has been filed by the
Company for its own corporate purposes (and the Company so states) in which
event the recipient of the shares shall bear only such fees and expenses as are
attributable solely to the inclusion of such shares in the Registration
Statement. All the shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
13. NO RIGHTS AS SHAREHOLDER. Optionee shall not have rights as a shareholder
with respect to shares covered by the Option until the date of issuance of a
stock certificate for such shares; and, except as otherwise provided in
paragraph 8 hereof, no adjustment for dividends or otherwise shall be made if
the record date therefor is prior to the date of issuance of such certificate.
14. REQUIREMENTS OF LAW. The Company shall not be required to sell or issue
any shares under the Option if the issuance of such shares shall constitute or
result in a violation by Optionee or the Company of any provision of any law,
statute or regulation of any governmental authority. Specifically, in connection
with any applicable statute or regulation relating to the registration of
securities, upon exercise of the Option, the Company shall not be required to
issue such shares unless the Company has received evidence satisfactory to it to
the effect that Optionee will not transfer such shares except in accordance with
applicable law, including the receipt of an opinion of counsel satisfactory to
the Company to the effect that any proposed transfer complies with applicable
law. The Company may, but shall in no event be obligated to, register any shares
covered hereby pursuant to applicable securities laws of any country or
political subdivision thereof. In the event the shares issuable on exercise of
the Option are not so registered, the Company may imprint on the certificate
evidencing such shares any legend counsel for the Company considers necessary or
advisable to comply with applicable law. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of the Option
or the issuance of shares pursuant to the Option to comply with any law or
regulation of any governmental authority.
15. NOTICES. Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed or delivered to the party for whom it
is intended at such address as may from time to time be designated by such party
in a notice mailed or delivered to the other
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party as provided herein, provided that, unless and until some other address be
so designated, all notices or communications by Optionee to the Company shall be
mailed or delivered to the Company at:
Interleukin Genetics, Inc.
000 X.X. Xxxx 000, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
and all notices or communications by the Company to Optionee be given to
Optionee personally or may be mailed to him at:
Xx. Xxxxxx Xxxxxx
000 Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxxxxxxxx 00000
EXECUTED to be effective as of the date first written above.
COMPANY: INTERLEUKIN GENETICS, INC.
By:____________________________________________
U. Xxxxxxx Xxxxx, Chief Financial Officer
OPTIONEE: ____________________________________________
XXXXXX XXXXXX
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