Exhibit 10.78
NEXELL THERAPEUTICS INC.
1997 NON-INCENTIVE STOCK OPTION AGREEMENT
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To: XXXXXXX X. XXXXX
We are pleased to notify you that by the determination of the Stock Option
Plan Committee (herein called the "Committee") a non-incentive stock option to
purchase 4,000 shares of the Common Stock of Nexell Therapeutics Inc. (herein
called the "Company") at a price of $3.5900 per share has this day of December
7, 2000 been granted to you under the Company's 1997 Incentive and Non-Incentive
Stock Option Plan (herein called the "Plan"). This option may be exercised only
upon the terms and conditions set forth below.
1. Purpose of Option.
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The purpose of the Plan under which this non-incentive stock option has been
granted is to further the growth and development of the Company and its
subsidiaries by encouraging key employees, directors, consultants, agents,
independent contractors and other persons who contribute and are expected to
contribute materially to the Company's success to obtain a proprietary interest
in the Company through the ownership of stock, thereby providing such persons
with an added incentive to promote the best interests of the Company, and
affording the Company a means of attracting to its service persons of
outstanding ability.
2. Acceptance of Option Agreement.
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Your execution of this non-incentive stock option agreement will indicate your
acceptance of and your willingness to be bound by its terms; it imposes no
obligation upon you to purchase any of the shares subject to this option. Your
obligation to purchase shares can arise only upon your exercise of the option in
the manner set forth in paragraph 4 hereof.
3. When Option May Be Exercised.
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The option granted you hereunder shall be exercisable in full from and after
December 7, 2001.
This option may not be exercised for less than ten shares at any one time (or
the remaining shares then purchasable if less than ten and expires at the end of
ten years from the date of grant whether or not it has been duly exercised
(hereinafter, the "Option Expiration Date"), unless sooner terminated as
provided in paragraphs 5, 6 or 7 hereof.
4. How Option May Be Exercised.
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This option is exercisable by a written notice signed by you and delivered to
the Company at its executive offices, signifying your election to exercise the
option. The notice must state the number of shares of Common Stock as to which
your option is being exercised, must contain a statement by you (in a form
acceptable to the Company) that such shares are being acquired by you for
investment and not with a view to their distribution or resale (unless a
Registration Statement covering the shares purchased has been declared effective
by the Securities and Exchange Commission) and must be accompanied by cash or a
check to the order of the Company for the full purchase price of the shares
being purchased, plus such amount, if any, as is required for withholding taxes.
Notwithstanding the foregoing, this option may also be exercised pursuant to the
following "cashless exercise" provision.
In lieu of paying for the shares purchasable under this option by cash or
check, you may (i) deliver previously owned shares of Common Stock with a fair
market value equal to the full purchase price of the shares being purchased
under this option, or (ii) request that the Company withhold shares of Common
Stock issuable upon exercise of this option with a fair market value equal to
the full purchase price of the shares being purchased under this option (thereby
reducing the number of shares issuable upon exercise of this option). For
purposes of this option, unless the Committee determines otherwise, the "fair
market value" of a share of Common Stock as of a certain date shall be the
closing sale price of the Common Stock on The Nasdaq Stock Market or, if the
Common Stock is not then traded on The Nasdaq Stock Market, such national
securities exchange on which the Common Stock is then traded, on the trading
date immediately preceding the date fair market value is being determined. The
Committee may make such other determination of fair market value, based on other
factors, as it shall deem appropriate.
If notice of the exercise of this option is given by a person or persons other
than you, the Company may require, as a condition to the exercise of this
option, the submission to the Company of appropriate proof of the right of such
person or persons to exercise this option.
Certificates for shares of the Common Stock so purchased will be issued as
soon as practicable. The Company, however, shall not be required to issue or
deliver a certificate for any shares until it has complied with all requirements
of the Securities Act of 1933, the Securities Exchange Act of 1934, any stock
exchange on which the Company's Common Stock may then be listed and all
applicable state laws in connection with the issuance or sale of such shares or
the listing of such shares on said exchange. Until the issuance of the
certificate for such shares, you or such other person as may be entitled to
exercise this option shall have none of the rights of a stockholder with respect
to shares subject to this option.
The Company shall have the right to require you, or such other person as may
be permitted to exercise this option, to remit to the Company an amount
sufficient to satisfy federal, state and local withholding tax requirements
prior to the delivery of any certificate or certificates for shares of Common
Stock issuable upon exercise of this option.
5. Termination of Employment or Engagement.
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If your employment with the Company (or a subsidiary thereof) is terminated for
any reason other than by death or disability, or if a you are not an employee of
the Company and your engagement by the Company (or a subsidiary) is terminated
for any reason, you may exercise, within three months from the date of such
termination, that portion of this option which was exercisable by you at the
date of such termination, provided, however, that such exercise occurs prior to
the Option Expiration Date.
6. Disability.
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If your employment with the Company (or a subsidiary thereof) is terminated by
reason of your disability, you may exercise, within twelve months from the date
of such termination, that portion of this option which was exercisable by you at
the date of such termination, provided, however, that such exercise occurs prior
to the Option Expiration Date.
7. Death.
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If you die while employed by the Company (or a subsidiary thereof) or within
six months after termination of your employment due to disability, that portion
of this option which was exercisable by you at the date of your death may be
exercised by your legatee or legatees under your Will, or by your personal
representatives or distributees, within twelve months from the date of your
death, but in no event after the Option Expiration Date.
8. Non-Transferability of Option.
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This option shall not be transferable except by Will or the laws of descent
and distribution, and may be exercised during your lifetime only by you.
9. Adjustments upon Changes in Capitalization.
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If at any time after the date of grant of this option, the Company shall, by
stock dividend, split-up, combination, reclassification or exchange, or through
merger or consolidation, or otherwise, change its shares of Common Stock into a
different number or kind or class of shares or other securities or property,
then the number of shares covered by this option and the price of each such
share shall be proportionately adjusted for any such change by the Committee,
whose determination shall be conclusive.
10. Acceleration of Exercisability Upon Change in Control.
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Upon the occurrence of a "change in control" of the Company (as defined
below), this option shall become immediately fully exercisable. For purposes of
this option, a "change in control" of the Company shall mean (i) the acquisition
at any time by a "person" or "group" (as such terms are used Sections 13(d) and
14(d)(2) of the Exchange Act of beneficial ownership (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities representing 50%
or more of the combined voting power in the election of directors of the then
outstanding securities of the Company or any successor or the Company; (ii) the
termination of service of directors, for any reason other than death, disability
or retirement from the Board of Directors, during any period of two consecutive
years or less, of individuals who at the beginning of such period constituted a
majority of the Board of Directors, unless the election of or nomination for
election of each new director during such period was approved by a vote of at
least two-thirds of the directors still in office who were directors at the
beginning of the period; (iii) approval by the stockholders of the Company of
any merger, consolidation, or statutory share exchange as a result of which the
Common Stock shall be changed, converted or exchanged (other than a merger,
consolidation or share exchange with a wholly-owned Subsidiary) or liquidation
of the Company or any sale or disposition of 80% or more of the assets or
earning power or the Company; or (iv) approval by the stockholders of the
Company of any merger, consolidation, or statutory share exchange to which the
Company is a party as a result of which the persons who were stockholders
immediately prior to the effective date of the merger, consolidation or share
exchange shall have beneficial ownership of less than 50% of the combined voting
power in the election of directors of the surviving corporation; provided,
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however, that no change in control shall be deemed to have occurred if, prior to
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such time as a change in control would otherwise be deemed to have occurred, the
Company's Board of Directors deems otherwise.
11. Subject to Terms of the Plan.
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This non-incentive stock option agreement shall be subject in all respects to
the terms and conditions of the Plan and in the event of any question or
controversy relating to the terms of the Plan, the decision of the Committee
shall be conclusive.
12. Tax Status.
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This option does not qualify as an "incentive stock option" under the
provisions of Section 422A of the Internal Revenue Code of 1986, as amended, and
the income tax implications of your receipt of a non-incentive stock option and
your exercise of such an option should be discussed with your tax counsel.
Sincerely yours,
NEXELL THERAPEUTICS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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XXXXXXX X. XXXXXXXX, XX.
PRESIDENT & COO
Agreed to and accepted this
7 day of January , 2001 .
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/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
