ENCORIUM GROUP, INC. 2002 EQUITY INCENTIVE PLAN AMENDED AND RESTATED NON- QUALIFIED STOCK OPTION AWARD AGREEMENT
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EXHIBIT 10.1 |
ENCORIUM GROUP, INC. 2002 EQUITY INCENTIVE PLAN
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
WHEREAS, on September 8, 2008 (the “Date of Grant”) the Encorium Group, Inc. (the “Company”) granted to Dr. Xxxxx Xxxxxxxx (the “Optionee”) an option to purchase a total of 250,000 shares of Common Stock of the Company with an exercise price of $1.70 per share (the “Original Option”), which was the Fair Market Value on the Date of Grant;
WHEREAS the Original Option is evidenced by that certain Non-Qualified Stock Option Award Agreement dated September 8, 2008;
WHEREAS, the Original Option was granted to the Optionee in order to provide a performance incentive and to more closely align the interests of the Optionee with those of the Company’s stockholders in maximizing stockholder value;
WHEREAS, as a result of the decline in the Company's stock price immediately after the date of grant of the Original Option, the Compensation Committee believes that such Original Option is not achieving the purposes for which it was intended and that it is in the best interest of the Company and its stockholders to reprice the Original Option in order to properly incentivize the Optionee;
WHEREAS to assure the Company that it will have the continued dedication of the Optionee and the availability of his advice and counsel notwithstanding the possibility, threat, or occurrence of a Change in Control (as hereinafter defined) of the Company the Board of Directors believes that it is in the best interest of the Company and its stockholders to provide for an acceleration of the Original Option upon a Change of Control.
WHEREAS, on November 4, 2008 (the “Repricing Date”), the Compensation Committee of the board of directors of the Company acted to reprice the Original Option to have an exercise price equal to the closing price of the Company's common stock on November 4, 2008, which was $ .36 per share and to provide that the Original Option shall vest immediately upon a “Change of Control” of the Company; and
WHEREAS, in order to effect the amendments set forth above, the Company hereby amends and restates the Original Option Agreement to read as follows:
The Company hereby grants to the Optionee an option to purchase a total of 250,000 shares of Common Stock of the Company (the “Option”), at the price and on the terms set forth herein, and in all respects subject to the terms, definitions and provisions of the Encorium Group, Inc.(formerly, Covalent Group, Inc.) 2002 Equity Incentive Plan (the “Plan”) applicable to non-qualified stock options, which terms and provisions are hereby incorporated by reference herein.
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Unless otherwise provided for herein or unless the context herein otherwise requires, the terms defined in the Plan shall have the same meanings when used herein.
| 1. | Nature of the Option. This Option is not intended to be an incentive | |||
| stock option. | ||||
| 2. | Term of Option. This Option may not be exercised later than the date | |||
that is ten (10) years after the Date of Grant, subject to earlier termination, as provided in the Plan or Section 6 hereof.
3. Option Exercise Price. The cost to the Optionee to purchase, pursuant to this Award Agreement, one Share is $ .36, which is the Fair Market Value on the Repricing Date.
4. Exercise of Option. This Option shall be exercisable during its term only in accordance with the terms and provisions of the Plan and this Award Agreement as follows:
| (a) | Right to Exercise. |
| (i) | The Option shall become exercisable with respect to 83,333 Shares if the |
Optionee remains continuously employed by the Company through the first (1st) anniversary of the Date of Grant.
(ii) The Option shall become exercisable with respect to 83,333 Shares if the Optionee remains continuously employed by the Company through the second (2nd) anniversary of the Date of Grant.
(iii) The Option shall become exercisable with respect to 83,334 Shares if the Optionee remains continuously employed by the Company through the third (3rd) anniversary of the Date of Grant.
(b) Accelerated Vesting. The Option shall become exercisable immediately upon a Change of Control of the Company. “Change in Control” of the Company under this Agreement shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied:
(i) When a “person”, as defined in Sections 3(a)(9) and 13(d)(3) of the Exchange Act, becomes the beneficial owner, directly or indirectly, of securities of the Company representing (A) more than twenty percent (20%) of the combined voting power of the Company’s then outstanding securities, unless such person is subject to contractual restrictions that would preclude him from voting such shares in a manner to influence or control the management of the Company’s business, provided that in the event such contractual restrictions are removed, a Change of Control will be deemed to have occurred on the effective date of such removal, or (B) one hundred percent (100%) of the combined voting power of the Company’s then outstanding securities regardless of any contractual restrictions. For purposes of this provision, “person” shall not include the Company, any subsidiary of the Company, any employee benefit plan or employee stock plan of the Company, or any person holding the Company’s Common Stock by for or pursuant to the terms of such a plan; and “voting power”
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shall mean the power under ordinary circumstances (and not merely upon the happening of a contingency) to vote in the election of directors.
(ii) When, as a result of a vote of stockholders for which proxies are solicited by or on behalf of any person other than the Company in accordance with the SEC rules issued under Section 14 of the Exchange Act, or which is exempt from the SEC proxy rules by reason of Rule 14a-2 under the Exchange Act, or as a result of an action by written consent of stockholders without a meeting, the “incumbent directors” cease to constitute at least a majority of the authorized number of members of the Board. For purposes of this provision, “incumbent directors” shall mean the persons who were members of the Board on the date hereof (including Executive’s nominees), and the persons who were elected or nominated as their successors or pursuant to increases in the size of the Board by a vote of at least an absolute majority (and not just the majority of a quorum) of the Board members who were then Board members (or successors or additional members so elected or nominated).
(iii) When the stockholders of the Company approve a merger, consolidation, or reorganization, whether or not the Company is the surviving entity in such transaction, other than a merger, consolidation, or reorganization that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least seventy percent (70%) of the combined voting power of the voting securities, held in relatively the same proportion, of the Company (or such surviving entity) outstanding immediately after the merger, consolidation, or reorganization.
(iv) When the stockholders of the Company approve (A) the sale or other disposition of all or substantially all of the assets the company or (B) a complete liquidation or dissolution of the Company.
(v) When the Board adopts a resolution to the effect that any person has acquired effective control of the business and affairs of the Company.
(c) Method of Exercise. The Optionee may exercise this Option by providing written notice stating the election to exercise this Option. Such written notice must be signed by the Optionee and must be delivered in person or by certified mail to the Chief Financial Officer of the Company or such other person as may be designated by the Company. The written notice must be accompanied by payment of the option exercise price in the manner described in Section 4(d), by an executed exercise form provided by the administrator and by any other agreements required by the Board or its Committee and/or the terms of the Plan, which other agreements may restrict the sale or other transfer of the Shares and may include certain additional representations and agreements as to the Optionee’s investment intent with respect to the Shares. This Option will be deemed to be exercised only upon the receipt by the Company of such written notice, payment of the option exercise price, and duly executed copies of the exercise form and any other agreements required by the Board or its Committee, the terms of the Plan and/or this Award Agreement. The Optionee will have no right to vote or receive dividends and will have no other rights as a stockholder with respect to such Shares notwithstanding the exercise of this Option, until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate(s)
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evidencing Shares that are being issued upon exercise of this Option. The certificate(s) for the Shares will be registered in the name of the Optionee and will contain any legend as may be required under the Plan, this Award Agreement, and/or applicable law.
(d) Method of Payment. The method of payment of the option exercise price will be determined by the Board or its Committee and may consist entirely of cash, certified check, or such other consideration or method of payment as may be authorized under the Plan.
(e) Partial Exercise. This Option may be exercised in whole or in part; provided, however, that any exercise may apply only with respect to a whole number of Shares.
(f) Restrictions on Exercise. This Option may not be exercised if the issuance of these Shares upon such exercise would constitute a violation of any applicable federal or state securities laws or other laws or regulations. In addition, as a further condition to the exercise of this Option, the Company may require the Optionee to make any representation or warranty to the Company as may be required by or advisable under any applicable law or regulation.
5. Investment Representations. Unless the Shares have been registered under the
Securities Act of 1933, in connection with the acquisition of this Option, the Optionee represents and warrants to the Company as follows:
(a) The Optionee is acquiring this Option, and upon exercise of this Option, the Optionee will be acquiring the Shares for investment for his or her own account, not as a nominee or agent, and not with a view to or for resale in connection with any distribution thereof.
(b) The Optionee has a preexisting business or personal relationship with the Company or one of its directors, officers or controlling persons and by reason of his or her business or financial experience, has, and could be reasonably assumed to have, the capacity to protect his interests in connection with the acquisition of this Option and the Shares.
| 6. | Termination of Relationship with the Company. |
| (a) Generally. If the Optionee’s employment by the Company is terminated | |
voluntarily for any reason other than death, Disability or termination for Cause, the Option (to the extent exercisable at the time of such termination) may be exercised at any time within three (3) months after the date of such termination. To the extent that the Option is not exercisable at the time of such termination, or to the extent the Option is not exercised within the time specified herein, the Option shall terminate.
(b) Disability. If the Optionee’s employment by the Company terminates due to Disability, the Option (to the extent exercisable at the time of such termination) may be exercised by the Optionee or his legal guardian or representative at any time within twelve (12) months after such termination. To the extent that the Option is not exercisable on the date of termination, or to the extent the Option is not exercised within the time specified herein, the Option shall terminate.
(c) Death. If the Optionee’s employment by the Company terminates due to his death, the Option (to the extent exercisable at the time of such death) will remain exercisable for twelve (12) months after the date of death by the Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance. To the extent that the Option is not exercisable on the date of death, or to the extent the Option is not exercised within the time specified herein, the Option shall terminate.
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(d) Termination for Cause. If the Optionee’s employment is terminated for Cause, the Option will then terminate immediately and automatically, and the Optionee shall have no further rights therein.
Notwithstanding any other provision of this Section 6, the Option shall not be exercisable after the expiration of the term set forth in Section 2 hereof.
7. Non-Transferability of Option. This Option may not be sold, pledged, assigned, hypothecated, gifted, transferred or disposed of in any manner either voluntarily or involuntarily by operation of law, other than by will or by the laws of descent or distribution. During the Optionee’s lifetime, this Option is exercisable only by the Optionee (or by such Optionee’s legal guardian or representative as provided in Section 6). Subject to the foregoing and the terms of the Plan, the terms of this Option will be binding upon the executors, administrators and heirs of the Optionee, meaning for purposes of this Award Agreement, both testamentary heirs and heirs by intestacy.
8. No Continuation of Employment or Engagement. Neither the Plan nor this
Option shall confer upon any Optionee any right to continue in the service of the Company or any of its Subsidiaries or limit, in any respect, the right of the Company to discharge the Optionee at any time, with or without cause and with or without notice.
9. Market Stand-Off. The Optionee agrees that, in connection with any public offering by the Company of its equity securities pursuant to a registration statement filed under the Securities Act, not to sell, make any short sale of, loan, hypothecate, pledge, grant any option for the purchase of or otherwise dispose of any Shares without the prior written consent of the Company or its underwriters, for such period of time from the effective date of such registration as may be requested by the Company or such underwriters.
10. Withholding. The Company reserves the right to withhold, in accordance with any applicable laws, from any consideration payable or property transferable to Optionee any taxes required to be withheld by federal, state or local law as a result of the grant or exercise of this Option or the sale or other disposition of the Shares. If the amount of any consideration payable to the Optionee is insufficient to pay such taxes or if no consideration is payable to the Optionee, upon the request of the Company, the Optionee (or such other person entitled to exercise this Option pursuant to Section 6 hereof) will pay to the Company an amount sufficient for the Company to satisfy any federal, state or local tax withholding requirements applicable to the grant or exercise of this Option or the sale or other disposition of the Shares issued upon the exercise of this Option.
11. The Plan. The Optionee has received a copy of the Plan (a copy of which is attached hereto), has read the Plan and is familiar with its terms, and hereby accepts the Option subject to all of the terms and provisions of the Plan, as amended from time to time. Pursuant to the Plan, the Board or its Committee is authorized to interpret the Plan and to adopt rules and regulations not inconsistent with the Plan as it deems appropriate. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board or its Committee upon any questions arising under the Plan.
12. Governing Law. This Award Agreement will be construed in accordance with the laws of the State of Delaware, without regard to the application of the principles of conflicts of laws.
13. Amendment. Subject to the provisions of the Plan, this Award Agreement may only be amended by a writing signed by each of the parties hereto.
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14. Entire Agreement. This Award Agreement, together with the Plan and the other exhibits attached thereto or hereto, represents the entire agreement between the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to the award of Options to Optionee by the Company. This Award Agreement may not be changed or modified, except by an agreement in writing signed by each of the parties hereto.
IN WITNESS WHEREOF, this Award Agreement has been executed by the parties on the 4th day of November, 2008.
| ENCORIUM GROUP, INC. | ||||
| By: | /s/ Xxx Xxxxxxxxx | |||
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| Name: | Xxx Xxxxxxxxx | |||
| Title: | Chairman of the Board and President | of | ||
| European and Asian Operations | ||||
| OPTIONEE | ||||
| ___/s/ Xxxxx Ginsberg________ | ||||
| Signature | ||||
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON EXERCISE OF THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE NOT BEEN ACQUIRED WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF, BY GIFT OR OTHERWISE, OR IN ANY WAY ENCUMBERED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR A SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO COVALENT GROUP, INC. THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND UNDER APPLICABLE STATE SECURITIES LAWS.
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