Exhibit 10.22
AGREEMENT
THIS AGREEMENT is made and entered into by and between MAS Capital Inc.
("MAS") and Xxxxxxx Capital Group II, LLC, ("Xxxxxxx Capital") as of this 29th
day of March, 2002.
W IT X X X X X X X:
WHEREAS, Xxxxx Xxxx is the President and principal stockholder of MAS;
and
WHEREAS, BDSI has proposed a 4.370-for-1 reverse stock split which has
not been effected through the filing of an amendment to its Articles of
Incorporation as of the date hereof; and
WHEREAS, MAS owns 327,600 shares (before the proposed 1-for-4.370
shares reverse stock split) of common stock of BioDelivery Sciences
International, Inc. ("BDSI") as evidenced by Certificate No. 1 ("the MAS
Shares"); and
WHEREAS, MAS has been granted an option to purchase 100,000 shares of
the Company's common stock evidenced by Option Number NQ-00019 (before the
planned 1-for-4.370 reverse stock split) (the "MAS Option"); and
WHEREAS, Xx. Xxxx is desirous of surrendering and canceling the MAS
Option and transferring all right, title and interest to the MAS Shares pursuant
to the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration in hand received,
including the mutual covenants and promises of the parties set forth herein, and
the consideration to be delivered hereunder, the parties mutually agree as
follows:
1. MAS hereby surrenders to BDSI and authorizes BDSI to cancel the MAS
Option. As a result of said surrender and subsequent cancellation, MAS will have
no right or entitlement to acquire any securities of BDSI. The surrender shall
be completed by the delivery of the Surrender attached as Exhibit "A".
2. MAS hereby agrees to sell and assign to Xxxxxxx Capital the MAS
Shares. MAS has no direct or indirect interest in any shares of BDSI other than
the MAS Shares. The assignment shall be completed by the delivery of the
Assignment attached hereto as Exhibit "B" together with the delivery of
Certificate No. 1 to Xxxxxxx Capital.
3. The purchase price for the MAS Shares to Xxxxxxx Capital and to BDSI
shall be $150,696. The purchase price shall be paid by a Promissory Note in the
form of Exhibit "C" issued by Xxxxxxx Capital which shall bear interest at six
percent (6%) per annum. All principal and interest shall be paid in one (1)
installment, one (1) year from the date of said Promissory Note.
4. MAS represents and warrants to Xxxxxxx Capital and to BDSI that: (i)
it has the right and authority to surrender for cancellation the MAS Option
without the consent or approval of any other party; (ii) it has the right to
sell and assign the MAS Shares without the consent or authorization of any other
party; (iii) it is the sole and complete owner of the MAS Shares and the MAS
Option, subject to no prior assignment, sale, pledge or hypothecation prior to
the date hereof; (iv) that following the surrender and cancellation of the MAS
Option and the sale and assignment of the MAS Shares, MAS will own no shares and
have no options or other rights to acquire any shares of BDSI; and (v) following
the closing of this Agreement, MAS will have no right to receive any
consideration in any form or nature from BDSI.
5. This Agreement constitutes the entire understanding of the parties
and shall not be amended or otherwise altered except in writing, executed by the
parties hereto.
6. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
IN WITNESS WHEREOF, the parties set their hand and seal on the day and
year first above written.
MAS Capital Inc. Xxxxxxx Capital Group II, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx X. X'Xxxxxxx
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Xxxxx Xxxx, President Xxxxxxx X. X'Xxxxxxx, Manager
BIODELIVERY SCIENCES INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
CONSULTANT OPTION
Option Agreement Number: NQ-00019
Date of Grant/Award: April 4, 2001
Name of Optionee: Xxxxx Xxxx
Optionee's Social Security Number:
Initial Vesting Date: See Paragraph 5
Initial Exercise Date: See Paragraph 5
Expiration Date: April 3, 2006 (the "Option Term")
1. Dated as of the above-stated Date of Grant/Award (the "Grant Date")
a Stock Option (the "Option") is hereby granted to the above-named Optionee. The
Award of this Option conveys to the Participant the right to purchase from
BioDelivery Sciences International, Inc. (the "Company") up to 100,000 shares of
Stock (the "Option Shares") at an exercise price of $0.70 per share. The Option
awarded hereunder is intended to be a nonqualified stock option subject upon its
exercise to treatment, for tax purposes, under Section 83 of the Internal
Revenue Code, and is specifically not intended to be treated as an Incentive
Stock Option as such term is defined under Section 422 of the Internal Revenue
Code.
2. Except as specifically provided herein, the rights of the Optionee,
or of any other person entitled to exercise the Option, are governed by the
terms and provisions of this Agreement. The Option is granted pursuant to the
terms of this Agreement, which is incorporated herein by reference, and the
Option shall in all respects be interpreted in accordance with this Agreement.
The Company shall interpret and construe this Option Agreement with respect to
any issue arising thereunder or hereunder, and such interpretations and
determinations by the Company shall be conclusive and will bind the parties
hereto and any other person claiming an interest hereunder.
3. To the extent not previously exercised, the Option and all rights
with respect thereto, shall terminate and become null and void when the Option
Term expires.
4. Following the Initial Exercise Date, but subject to such further
limitations provided for herein as may apply, the Option shall become
exercisable as to all or any part of the Option Shares ("Vested Shares") awarded
in accordance with the following Vested Ratio schedule:
NUMBER OF SHARES OF STOCK VESTING DATE
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Fully Vested First to occur of: (1) 24 months from the
date of grant; or (ii) 13 months from
completion of IPO
5. The Option may be exercised with respect to all or any part of the
number of Vested Shares by the giving of written notice ("Notice") of the
Optionee's intent to exercise to
the Company at least five days prior to the date on which exercise is to occur.
The Notice shall specify the exercise date and the number of Option Shares as to
which the Option is to be exercised. Full payment of the Option exercise price
by any of the means of consideration provided for under this Agreement shall be
made on or before the exercise date specified in the Notice. Such full payment
having occurred on or before the exercise date specified in the Notice, or as
soon thereafter as is practicable, the Company shall cause to be delivered to
the Optionee a certificate or certificates for the Option Shares then being
purchased. If the Optionee fails to pay for any of the Option Shares specified
in the Notice, or fails to accept delivery of Option Shares, the Optionee's
right to purchase such Option Shares may be terminated by the Company.
6. During the Optionee's lifetime, the Option granted hereunder shall
be exercisable only by the Optionee or by any guardian or legal representative
of the Optionee, and the Option shall not be transferable except, in the case of
the death of the Optionee, by will or by the laws of descent and distribution,
nor shall the Option be subject to attachment, execution or other similar
process.
7. The Company may unilaterally amend the Option Award at any time if
the Company determines, in its sole discretion that amendment is necessary or
advisable in light of any applicable addition to or change in the Internal
Revenue Code, any regulations issued thereunder, or any federal or state
securities law or other applicable law or regulation.
8. Until the date a Stock certificate is issued to an Optionee, an
Optionee shall have no rights as a stockholder with respect to the shares of
Stock subject to Award under this Non-Qualified Stock Option Agreement, and no
adjustments shall be made for dividends of any kind or nature, distributions, or
other rights for which the record date is prior to the date such Stock
certificate is issued.
9. The Optionee acknowledges having received and read a copy of this
Agreement and agrees to comply with all laws, rules and regulations applicable
to the Award and to the sale or other disposition of the Stock of the Company
received.
10. Any notice to the Company provided for in this Agreement shall be
addressed to it in care of its Secretary at its executive offices located at
Administrative Building 4, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000,
and any notice to the Optionee shall be addressed to the Optionee at the address
currently shown on the payroll records of the Company. Any notice shall be
deemed duly given if and when properly addressed and posted by registered or
certified mail, postage prepaid.
IN WITNESS WHEREOF, BioDelivery Sciences International, Inc. has caused
its duly authorized officers to execute this nonqualified Stock Option
Agreement, and the Optionee has placed his or her signature hereon, effective as
of the Grant Date.
BIODELIVERY SCIENCES INTERNATIONAL, INC.
Attest:
By: /s/ Xxxxxxx X. X'Xxxxxxx
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Xxxxxxx X. X'Xxxxxxx, MD
Title: Chairman
ACCEPTED AND AGREED TO:
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Optionee
CERTIFICATE
XXXXX XXXX
COMES NOW Xxxxx Xxxx and hereby represents and warrants as follows:
1. Xxxxx Xxxx is the President, a Director and controlling stockholder
of MAS Capital Inc.
2. Following the closing of the Agreement between MAS Capital Inc. and
Xxxxxxx Capital Group II, LLC, dated March 29, 2002, neither MAS Capital Inc.
nor Xxxxx Xxxx will either directly or indirectly, own or control any shares of
common stock or options to purchase shares of common stock or any other security
of BDSI.
3. Neither Xxxxx Xxxx nor MAS Capital Inc., either directly or
indirectly, have any right or entitlement to any consideration or compensation
from BDSI.
4. Neither MAS Capital Inc. nor Xxxxx Xxxx, either directly or
indirectly, own, control, or have an interest of any nature, in any of the
shares of BDSI held of record by the stockholders (other than MAS Capital Inc.)
of MAS Acquisition XXIII Corp. at the date of the investment by Xxxxxxx Capital
Group II, LLC.
IN WITNESS WHEREOF, I, Xxxxx Xxxx, have provided this Certificate and
represent that it is true and correct, and may be relied upon by BDSI, and
regulatory agencies with which BDSI is currently engaged, including, but not
limited to NASDAQ, NASD and SEC.
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
COUNTY OF Los Angeles
STATE OF California
Acknowledged and subscribed before me on MARCH 29TH, 2002 by Xxxxx
Xxxx, who is personally known to me or who has produced DRIVERS LICENSE as
identification.
/s/ Xxxxxx Maihe
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Notary Public
[NOTARY SEAL]
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Print, type, or stamp commissioned name and affix official seal
EXHIBIT "B"
ASSIGNMENT
For value received, MAS Capital Inc. hereby sells, assigns and
transfers unto Xxxxxxx Capital Group II, LLC. 327,600 shares of common stock
(before adjustment for the 1-for-4.370 reverse stock split ) of BioDelivery
Sciences International, Inc. represented by Certificate No. 1 and does hereby
irrevocably constitute and appoint Xxxxxxx X. X'Xxxxxxx as my attorney-in-fact
to transfer said shares on the books of BioDelivery Sciences International, Inc.
Dated: 3-29 , 2002
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MAS Capital Inc.
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
STATE OF California
COUNTY OF Los Angeles
Acknowledged and subscribed before me on MARCH 29TH, 2002 by Xxxxx
Xxxx, who is personally known to me or who has produced DRIVERS LICENSE as
identification.
/s/ Xxxxxx Maihe
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Notary Public
[NOTARY SEAL]
---------------------------------------------------------------
Print, type, or stamp commissioned name and affix official seal
EXHIBIT "C"
PROMISSORY NOTE
$150,696 St. Louis, Missouri
March 29, 2002
FOR VALUE RECEIVED, Xxxxxxx Capital Group II, LLC. promises to pay to
the order of MAS Capital Inc., the principal sum of One Hundred Fifty Thousand
Six Hundred Ninety Six Dollars and No Cents ($150,696), together with interest
thereon at the rate of six percent (6%) per annum from the date hereof until
maturity, both principal and interest being payable in lawful money of the
United States, such principal and interest payable in installments as follows:
All principal and interest shall be due and payable one (1) year from
the date hereof.
The Borrower may prepay this Note at any time without penalty.
If any payment of principal or interest is not paid when due, then the
entire unpaid principal and interest on this Note may be declared immediately
due and payable at the option of the Holder of this Note, without notice to the
undersigned.
Should it become necessary to collect this Note through an attorney,
then all parties liable herein agree to pay all costs of collection, including
reasonable attorneys' fees, costs and attorneys' fees of appeal, appraisal fees,
abstract fees and reasonable costs of preserving and protecting the collateral.
The Borrower waives presentment, demand, protest, notice of dishonor and notice
of protest.
This Note shall be governed by and construed and enforced according to
the laws of the State of Missouri and venue with respect to any litigation on
this Note shall be St. Louis, Missouri.
Xxxxxxx Capital Group II, LLC.
/s/ Xxxxxxx X. X'Xxxxxxx
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Xxxxxxx X. X'Xxxxxxx, Manager
March 29, 2002
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