Boston Life Sciences, Inc. Nonstatutory Stock Option Agreement
Exhibit 10.1
Boston Life Sciences, Inc.
Nonstatutory Stock Option Agreement
1. Grant of Option.
This agreement (hereinafter, the “Agreement”) evidences the grant by Boston Life Sciences,
Inc., a Delaware corporation (the “Company”), on April 16, 2007 (the “Grant Date”) to
Xxxxx Xxxx, an employee of the Company (the “Optionee”), of an option (this
“Option”) to purchase, in whole or in part, on the terms provided herein, a total of
300,000 shares (the “Shares”) of common stock, $0.01 par value per share, of the Company
(“Common Stock”) at $2.94 per Share. Unless earlier terminated, this Option shall expire
at 5:00 p.m., Eastern time, on April 15, 2017 (the “Final Exercise Date”).
It is intended that the Option evidenced by this Agreement shall not be an incentive stock
option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the “Code”). Except as otherwise indicated by the context, the
term “Optionee”, as used in this Option, shall be deemed to include any person who acquires the
right to exercise this Option validly under its terms.
2. Vesting Schedule.
This option will become exercisable (“vest”) immediately as to 1/3 of the original
number of Shares on the Grant Date with the remaining 2/3 of the original number of Shares
vesting in equal monthly installments over 3 years.
The right of exercise shall be cumulative so that to the extent the Option is not exercised in
any period to the maximum extent permissible it shall continue to be exercisable, in whole or in
part, with respect to all Shares for which it is vested until the earlier of the Final Exercise
Date or the termination of this Option under Section 3 hereof.
3. Exercise of Option.
(a) Form of Exercise. Each election to exercise this Option shall be by written
notice in the form attached hereto as Exhibit A, signed by the Optionee, and received by
the Company at its principal office, accompanied by this Agreement, and payment in full in the
manner provided in Section 3(b) hereof. The Optionee may purchase less than the total number of
Shares covered hereby, provided that no partial exercise of this Option may be for any fractional
share.
(b) Payment Upon Exercise. Common Stock purchased upon an election to exercise this
Option shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board (as defined in Section 4 below) may otherwise determine, by (i)
delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the exercise price and any required tax withholding
or (ii) delivery by the Optionee to the Company of a copy of irrevocable and unconditional
instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient
to pay the exercise price and any required tax withholding;
(3) for as long as the Common Stock is registered under the Securities Exchange Act of 1934
(the “Exchange Act”), by delivery of shares of Common Stock owned by the Optionee valued at their
fair market value as determined by (or in a manner approved by) the Board (“Fair Market Value”),
provided (i) such method of payment is then permitted under applicable law, (ii) such Common Stock,
if acquired directly from the Company, was owned by the Optionee for such minimum period of time,
if any, as may be established by the Board in its discretion, and (iii) such Common Stock is not
subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements;
(4) to the extent permitted by applicable law and by the Board, by (i) delivery of a
promissory note of the Optionee to the Company on terms determined by the Board, or (ii) payment of
such other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(c) Continuous Relationship with the Company Required. Except as otherwise provided
in this Section 3, this Option may not be exercised unless the Optionee, at the time he or she
exercises this Option, is, and has been at all times since the Grant Date, an employee of the
Company (an “Eligible Optionee”).
(d) Termination of Relationship with the Company. If the Optionee ceases to be an
Eligible Optionee for any reason, then, except as provided in paragraphs (e) and (f) below, the
right to exercise this Option shall terminate three months after such cessation (but in no event
after the Final Exercise Date), provided that this Option shall be exercisable only
to the extent that the Optionee was entitled to exercise this Option on the date of such cessation.
Notwithstanding the foregoing, if the Optionee, prior to the Final Exercise Date, violates the
non-competition or confidentiality provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Optionee and the Company, the right to
exercise this Option shall terminate immediately upon written notice to the Optionee from the
Company describing such violation.
(e) Exercise Period Upon Death or Disability. If the Optionee dies or becomes
disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date
while he or she is an Eligible Optionee and the Company has not terminated such relationship for
“cause” as specified in paragraph (f) below, this Option shall be exercisable, within the period of
one year following the date of death or disability of the Optionee, by the Optionee (or in the case
of death by an authorized transferee), provided that this Option shall be
exercisable only to the extent that this Option was exercisable by the Optionee on the date of his
or her death or disability, and further provided that this Option shall not be exercisable after
the Final Exercise Date.
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(f) Discharge for Cause. If the Optionee, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise this Option shall
terminate immediately upon the effective date of such discharge. “Cause” shall mean willful
misconduct by the Optionee or willful failure by the Optionee to perform his or her
responsibilities to the Company (including, without limitation, breach by the Optionee of any
provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar
agreement between the Optionee and the Company), as determined by the Company, which determination
shall be conclusive. The Optionee shall be considered to have been discharged for “Cause” if the
Company determines, within 30 days after the Optionee’s resignation, that discharge for cause was
warranted.
4. Administration by Board of Directors or Committee.
This Agreement will be administered by the Board of Directors of the Company (the “Board”).
The Board shall have authority to adopt, amend and repeal such administrative rules, guidelines and
practices relating to this Agreement as it shall deem advisable. The Board may correct any defect,
supply any omission or reconcile any inconsistency in this Agreement in the manner and to the
extent it shall deem necessary and the Board shall be the sole and final judge of such action. All
decisions by the Board shall be made in the Board’s sole discretion and shall be final and binding
on all persons having or claiming any interest in this Option. No director or person acting
pursuant to the authority delegated by the Board shall be liable for any action or determination
relating to or under this Agreement made in good faith. To the extent permitted by applicable law,
the Board may delegate any or all of its powers under this Agreement to one or more committees or
subcommittees of the Board (a “Committee”). All references in this Agreement to the “Board” shall
mean the Board or a Committee of the Board to the extent that the Board’s powers or authority under
this Agreement have been delegated to such Committee.
5. Adjustments for Changes in Common Stock and Certain Other Events.
(a) Changes in Capitalization. In the event of any stock split, reverse stock split,
stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or
other similar change in capitalization or event, or any distribution to holders of Common Stock
other than an ordinary cash dividend, the number and class of securities and exercise price per
share of each share outstanding under this Option shall be equitably and appropriately adjusted by
the Company (or substituted options may be made, if applicable) to the extent determined by the
Board.
(b) Reorganization Events.
(1) Definition. A “Reorganization Event” shall mean: (a) any merger or consolidation
of the Company with or into another entity as a result of which all of the Common Stock of the
Company is converted into or exchanged for the right to receive cash, securities or other property
or is cancelled, (b) any exchange of all of the Common Stock of the Company for cash, securities or
other property pursuant to a share exchange transaction or (c) any liquidation or dissolution of
the Company.
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(2) Consequences of a Reorganization Event. In connection with a Reorganization
Event, the Board shall take any one or more of the following actions as to this Option on such
terms as the Board determines: (i) provide this Option shall be assumed, or substantially
equivalent options shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), (ii) upon written notice to the Optionee, provide that the Optionee’s
unexercised Shares under this Option will terminate immediately prior to the consummation of such
Reorganization Event unless exercised by the Optionee within a specified period following the date
of such notice, (iii) provide that outstanding Shares under this Option shall become exercisable,
realizable or deliverable, or restrictions applicable to this Option shall lapse, in whole or in
part prior to or upon such Reorganization Event, (iv) in the event of a Reorganization Event under
the terms of which holders of Common Stock will receive upon consummation thereof a cash payment
for each share surrendered in the Reorganization Event (the “Acquisition Price”), make or provide
for a cash payment to the Optionee equal to the excess, if any, of (A) the Acquisition Price times
the number of shares of Common Stock subject to this Option (to the extent the exercise price does
not exceed the Acquisition Price) over (B) the aggregate exercise price of this Option and any
applicable tax withholding, in exchange for the termination of this Option, (v) provide that, in
connection with a liquidation or dissolution of the Company, this Option shall convert into the
right to receive liquidation proceeds (if applicable, net of the exercise price thereof) and (vi)
any combination of the foregoing.
For purposes of clause (i) above, this Option shall be considered assumed if, following
consummation of the Reorganization Event, the Option confers the right to purchase, for each share
of Common Stock subject to the Option immediately prior to the consummation of the Reorganization
Event, the consideration (whether cash, securities or other property) received as a result of the
Reorganization Event by holders of Common Stock for each share of Common Stock held immediately
prior to the consummation of the Reorganization Event (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if the consideration received as a result of the
Reorganization Event is not solely common stock of the acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise of this Option to consist solely of
common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in
fair market value to the per share consideration received by holders of outstanding shares of
Common Stock as a result of the Reorganization Event.
6. Withholding.
The Optionee shall pay to the Company, or make provision satisfactory to the Company for
payment of, any taxes required by law to be withheld in respect of this Option. For so long as the
Common Stock is registered under the Exchange Act, and to the extent permitted by the Board,
Optionee may satisfy such tax obligations in whole or in part by delivery of shares of Common
Stock, valued at their Fair Market Value; provided, however, except as otherwise provided by the
Board, that the total tax withholding where stock is being used to satisfy such tax obligations
cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). Shares surrendered to satisfy tax
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withholding requirements cannot be subject to any repurchase, forfeiture, unfulfilled vesting
or other similar requirements. The Company may, to the extent permitted by law, deduct any such
tax obligations from any payment of any kind otherwise due to Optionee.
7. Nontransferability of Option.
This Option may not be sold, assigned, transferred, pledged or otherwise encumbered by the
Optionee, either voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the lifetime of the Optionee, this Option shall be exercisable only by
the Optionee.
8. Miscellaneous
(a) Termination of Status. The Board shall determine the effect on this Option of the
disability, death, retirement, authorized leave of absence or other change in the status of the
Optionee and the extent to which, and the period during which, the Optionee, or the Optionee’s
legal representative, conservator, guardian or authorized transferee, may exercise rights under
this Option.
(b) Amendment of Option. The Board may amend, modify or terminate this Option,
including but not limited to, substituting therefor another Option of the same or a different type,
changing the date of exercise or realization, provided that the Optionee’s consent to such action
shall be required unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Optionee.
(c) Conditions on Delivery of Stock. The Company will not be obligated to deliver any
shares of Common Stock pursuant to this Agreement until (i) all conditions of this Agreement have
been met or removed to the satisfaction of the Company, (ii) in the opinion of the Company’s
counsel, all other legal matters in connection with the issuance and delivery of the Shares have
been satisfied, including any applicable securities laws and any applicable stock exchange or stock
market rules and regulations, and (iii) the Optionee has executed and delivered to the Company such
representations or agreements as the Company may consider appropriate to satisfy the requirements
of any applicable laws, rules or regulations.
(d) Acceleration. The Board may at any time provide that this Option shall become
immediately exercisable in full or in part, free of some or all restrictions or conditions, or
otherwise realizable in full or in part, as the case may be.
(e) No Right To Employment or Other Status. This Option shall not be construed as
giving the Optionee the right to continued employment or any other relationship with the Company.
(f) No Rights As Stockholder. The Optionee shall have no rights as a stockholder with
respect to any shares of Common Stock to be distributed with respect to this Option until becoming
the record holder of such shares. Notwithstanding the foregoing, in the event the Company effects
a split of the Common Stock by means of a stock dividend and the exercise price of and the number
of shares subject to this Option are adjusted as of the date of the distribution of the dividend
(rather than as of the record date for such dividend), and the
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Optionee exercises any of this Option between the record date and the distribution date for
such stock dividend, the Optionee shall be entitled to receive, on the distribution date, the stock
dividend with respect to the shares of Common Stock acquired upon such Option exercise,
notwithstanding the fact that such shares were not outstanding as of the close of business on the
record date for such stock dividend.
(g) Governing Law. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Delaware, without regard to any applicable conflicts of law.
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IN WITNESS WHEREOF, the Company has caused this Option to be executed by its duly authorized
officer. This Option shall take effect as an executed instrument.
BOSTON LIFE SCIENCES, INC. |
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Dated: June 5, 2007 | By: | /s/ Xxxxxxx X. Xxxx | ||
Name: | Xxxxxxx X. Xxxx | |||
Title: | Executive Vice President of Finance and Administration, CFO & In-House Counsel | |||
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OPTIONEE’S ACCEPTANCE
The undersigned hereby accepts the foregoing Nonstatutory Stock Option Agreement and agrees to
the terms and conditions thereof.
OPTIONEE: |
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/s/ Xxxxx Xxxx | ||||
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EXHIBIT A
NOTICE OF STOCK OPTION EXERCISE
Date: | ||||
Optionee name and address:
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Attention: Treasurer
Dear Sir or Madam:
I am the holder of a Nonstatutory Stock Option granted to me by Boston Life Sciences, Inc.
(the “Company”) on ______ for the purchase of ______ shares of Common Stock of the Company
at a purchase price of $ ___ per share.
I hereby exercise my option to
purchase ______ shares of Common Stock (the “Shares”), for
which I have enclosed ______ in the amount of $___. Please register my stock certificate
as follows:
(check applicable box) | ||||||
Name(s):
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Tenants in Common | |||||
Tenants by the Entirety | ||||||
Address:
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Joint Tenants | |||||
Tax I.D. #:
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Uniform Gift to Minors Act | |||||
I represent, warrant and covenant as follows:
1. I am purchasing the Shares for my own account for investment only, and not with a view to, or
for sale in connection with, any distribution of the Shares in violation of the Securities Act of
1933 (the “Securities Act”), or any rule or regulation under the Securities Act.
2. I have had such opportunity as I have deemed adequate to obtain from representatives of the
Company such information as is necessary to permit me to evaluate the merits and risks of my
investment in the Company.
3. I have sufficient experience in business, financial and investment matters to be able to
evaluate the risks involved in the purchase of the Shares and to make an informed investment
decision with respect to such purchase.
4. I can afford a complete loss of the value of the Shares and am able to bear the economic risk of
holding such Shares for an indefinite period.
5. I understand that (i) the Shares have not been registered under the Securities Act and are
“restricted securities” within the meaning of Rule 144 under the Securities Act, (ii) the Shares
cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under
the Securities Act or an exemption from registration is then available; (iii) in any event, the
exemption from registration under Rule 144 will not be available for at least one year and even
then will not be available unless a public market then exists for the Common Stock, adequate
information concerning the Company is then available to the public, and other terms and conditions
of Rule 144 are complied with; and (iv) there is now no registration statement on file with the
Securities and Exchange Commission with respect to any stock of the Company and the Company has no
obligation or current intention to register the Shares under the Securities Act.
Very truly yours, |
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(Signature) | ||||