EXHIBIT 4.40
NEITHER THE COMMON STOCK OPTION REPRESENTED BY THIS AGREEMENT NOR THE
SHARES OF COMMON STOCK ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE LAWS OF ANY OTHER
JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN ANY MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND
IN COMPLIANCE WITH THE LAWS OF ANY APPLICABLE JURISDICTIONS; OR (2) AN OPINION
OF COUNSEL (IN FORM AND SUBSTANCE ACCEPTABLE TO ADVANCED VIRAL RESEARCH CORP.)
THAT REGISTRATION IS NOT REQUIRED.
ADVANCED VIRAL RESEARCH CORP.
COMMON STOCK OPTION AND AGREEMENT
THIS COMMON STOCK OPTION (the "Option") for a total of up to 40,000,000
shares (the "Option Shares") of common stock, par value $.00001 per share (the
"Common Stock"), of Advanced Viral Research Corp., a Delaware corporation (the
"Company"), is hereby granted by the Company to Xxxx X. Xxxxxxx (the
"Optionee"), at the price and subject to the terms and conditions hereunder and
that certain Employment Contract dated February 10, 2004 between the Company and
Optionee (the "Employment Agreement"). Capitalized terms not otherwise defined
herein shall be defined as set forth in the Employment Agreement.
1. EXERCISE OF OPTION.
(a) Exercise Prices; Vesting Schedule. Optionee shall be entitled
to acquire the Option Shares from time to time in accordance with the vesting
schedule and exercise prices listed below:
OPTION SHARES EXERCISE PRICE PER OPTION SHARE VESTING SCHEDULE
------------- ------------------------------- ----------------
First 8,000,000 $ .12 1/60th of the Option Shares
Second 8,000,000 $.129 (666,667) shall become exercisable
Third 8,000,000 $.139 every 30 days commencing on the
Fourth 8,000,000 $.149 Commencement Date (each date shall
be referred to as an "Exercise
Date") and are exercisable through
Fifth 8,000,000 $.160 the date which is five years from an
Exercise Date (the "Expiration
Date").
(b) Termination of Employment. Notwithstanding anything contained
herein to the contrary:
(i) Upon the termination of Optionee's employment with
the Company (A) by the Company for Cause; or (B) due
to Optionee's voluntary unilateral decision to
terminate her employment without Cause, the Option
shall expire for all Option Shares which have as of
such date not become exercisable but shall survive
with respect to Option Shares that have become
exercisable as of such date, (the "Surviving
Options"), provided, however, notwithstanding
anything contained herein to the contrary, Optionee
shall have 90 days to exercise the Surviving Options.
(ii) Upon the termination of Optionee's employment with
the Company for reasons other than (A) by the Company
for Cause; or (B) due to Optionee's voluntary
unilateral decision to terminate her employment
without Cause, including without limitation, the
death or Disability of Optionee, the Option shall
immediately become exercisable for that number of
Option Shares equal to the number of Option Shares
which would have been subject to exercise by Optionee
during the then current term of the Employment
Agreement (without giving effect to any extensions
thereof).
(c) Method of Exercise. The Option granted hereunder shall be
deemed exercised when Optionee indicates her decision to do so in writing to the
Company and shall at the same time tender to the Company payment in full for the
Option Shares as follows:
(i) Notice of Exercise. The Option shall be exercisable
by a written notice which shall: (1) state the
election to exercise the Option, the person in whose
name the stock certificate(s) for such shares of
Common Stock is to be registered, his or her address
and social security number (or if more than one, the
names, addresses and social security numbers of such
persons); (2) be signed by the person or persons
entitled to exercise the Option and, if the Option is
being exercised by any person(s) other than the
Optionee, be accompanied by proof, satisfactory to
counsel for the Company, of the right of such
person(s) to exercise the Option; and (3) be
delivered in person or by certified mail to the
Company.
(ii) Payment. Payment of the purchase price for the Option
Shares shall be by certified or bank cashier's check
payable to the Company.
(d) Restriction on Exercise. Notwithstanding anything contained
herein to the contrary, this Option may not be exercised if the issuance of the
Option Shares would constitute a violation of any applicable federal or state
securities laws or other applicable laws or regulations. As a condition to the
exercise of the Option, the Company may require the person exercising the Option
to make such representations and agree to such covenants as may be required by
any applicable law or regulation.
2. OPTIONEE'S OR SUCCESSOR'S RIGHTS AS STOCKHOLDERS. Neither the Optionee
nor his or her successor(s) in interest, as permitted hereunder, shall have any
rights as a stockholder of the Company with respect to any Option Shares until
Optionee or his or her successors in interest becomes a beneficial holder of the
Option Shares and receives from the Company or its duly authorized agent a
certificate or certificates representing the Option Shares. At the time of the
exercise of the Option, Optionee shall execute the letter attached hereto as
EXHIBIT A.
3. NO REGISTRATION. Neither the Option granted hereby nor the Option
Shares issuable upon exercise of the Option have been registered under the
Securities Act of 1933 (the "Act") or any other applicable state's securities
laws in reliance upon applicable exemptions from such registration and may be
transferred only pursuant to such securities laws. Notwithstanding this Section
3, the Company and Optionee acknowledge the Company's obligation with respect to
the registration of the resale of the Option Shares as set forth in the
Employment Agreement.
4. TRANSFER RESTRICTIONS. Neither the Option nor the Option Shares may be
transferred, offered or sold except in compliance with this Agreement, the Act
and the laws of any applicable jurisdiction.
2
(a) Transfer of Option. Optionee may not transfer all or any
portion of this Option without the Company's prior written consent.
Notwithstanding anything contained herein, Optionee may sell or otherwise
assign, with or without consideration, all or a portion of this Option to any
spouse or member of such Optionee's immediate family, or to a custodian, trustee
(including a trustee of a voting trust), executor, or other fiduciary for the
account of such Optionee's spouse or members of the Optionee's immediate family,
or to a trust for the Optionee's own self, or a charitable remainder trust,
provided however, that each such transferee or assignee, prior to the completion
of the sale, transfer, or, assignment shall have executed documents assuming the
obligations of the Optionee under this Agreement with respect to the transferred
securities.
(b) Legend on Option Shares. The Company shall cause a legend in
substantially the form that follows to be set forth on the certificate
representing each Option Share:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN ANY
MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND IN COMPLIANCE WITH
THE LAWS OF ANY APPLICABLE JURISDICTIONS; OR (2) AN OPINION OF COUNSEL
(IN FORM AND SUBSTANCE ACCEPTABLE TO ADVANCED VIRAL RESEARCH CORP.)
THAT REGISTRATION IS NOT REQUIRED."
5. REPRESENTATIONS OF OPTIONEE. Optionee hereby warrants to the Company as
follows:
(a) Investment Intent. The Option and the Option Shares
contemplated to be acquired pursuant to the exercise of the Option are being and
shall be acquired by Optionee solely for investment purposes and not for the
account of any other person and not for distribution, assignment or resale to
others. No other person has a direct or indirect beneficial interest in the
Option or the Option Shares. Optionee has not subdivided the beneficial
ownership of the Option or the Option Shares with any other person.
(b) Review and Evaluation. Optionee has, together with his or her
financial advisors, if any, had access to any relevant information and documents
desired; has had the opportunity to ask questions of and receive answers from
any person authorized to act on behalf of the Company concerning any aspect of
the Company, including, but not limited to, the merits of accepting the Option;
is in receipt of (i) the Company's Annual Reports as filed with the Securities
and Exchange Commission; (ii) the Company's Quarterly Reports as filed with the
Securities and Exchange Commission; and (iii) all other requested documents and
information regarding the Company (collectively, the "Information"). Optionee,
together with his or her financial advisors, if any, represent that they have
carefully read, are familiar with and fully understand the Information,
including all documents referred to therein; and have consulted with such other
advisors as they have deemed necessary and appropriate in making the decision to
acquire the Option. Optionee fully represents that, after a careful review of
the Information, including all documents referred to therein, Optionee accepts
the Option.
(c) Financial Experience. Optionee is sufficiently experienced in
financial and business matters to be capable of evaluating the merits and risks
of his or her acceptance of the Option, or if Optionee has utilized the services
of a financial advisor, together they are sufficiently experienced in financial
and business matters that they are capable of evaluating the merits and risks of
Optionee's acceptance of the Option.
(d) Accredited Investor. Unless this section is crossed out,
Optionee is an "accredited investor" as such term is defined at Rule 501
promulgated under the Act, a copy of which definition is attached hereto and
incorporated by reference hereby as EXHIBIT B.
3
(e) Residency. Optionee is a resident of the State of New York
6. MISCELLANEOUS.
(a) Entire Agreement. This Agreement (including the exhibits and
schedules hereto) constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior negotiations,
understandings, agreements, arrangements and understandings, both oral and
written, among the parties hereto with respect to such subject matter.
(b) Amendment. This Agreement may not be amended or modified in
any respect, except by the mutual written agreement of the parties hereto.
(c) No Third Party Beneficiary. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person, firm, corporation, partnership, association or other entity, other than
the parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
(d) Waivers and Remedies. The waiver by any of the parties hereto
of any other party's prompt and complete performance, or breach, or violation,
of any provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation, and the waiver by any of the
parties hereto to exercise any right or remedy which it may possess hereunder
shall not operate nor be construed as a bar to the exercise of such right or
remedy by such party upon the occurrence of any subsequent breach or violation.
(e) Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part hereof, all of which are inserted conditionally on their being valid
in law, and, in the event that any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall be declared
invalid by a court of competent jurisdiction, this Agreement shall be construed
as if such invalid word or words, phrase or phrases, sentence or sentences,
clause or clauses, section or sections, or subsection or subsections had not
been inserted.
(f) Descriptive Headings. Descriptive headings contained herein
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
(g) Counterparts. This Agreement may be executed in any numbers of
counterparts and by the separate parties hereto in separate counterparts, each
of which shall be deemed to be one and the same instrument.
(h) Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be in writing and shall be deemed to have been duly given,
when delivered by hand or three (3) days after deposited in the United States
mail, by registered or certified mail, return receipt requested, postage
prepaid, as follows:
If to the Company: Advanced Viral Research Corp.
000 Xxxxxxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, CFO
If to Optionee: Xxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
or to such other address as any party hereto may from time to time designate in
writing delivered in a like manner.
4
(i) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. None of the parties hereto shall assign any of its
rights or obligations hereunder.
(j) Each of the parties hereto agrees to pay all of the respective
expenses incurred by it in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby.
(k) Attorneys' Fees. In the event any suit or other legal
proceeding is brought for the enforcement of any of the provisions of this
Agreement, the parties hereto agree that the prevailing party or parties shall
be entitled to recover from the other party or parties upon final judgment on
the merits reasonable attorneys' fees (and sales taxes thereon, if any),
including attorneys' fees for any appeal, and costs incurred in bringing such
suit or proceeding.
(l) Agent. Neither party is hereby constituted an agent or legal
representative of the other party hereto and neither is granted any right or
authority hereunder to assume or create any obligation, express or implied, or
to make any representation, covenant, warranty, or guaranty, except as expressly
granted or made in this Agreement.
(m) Other Documents. The parties hereto shall cooperate in the
effectuation of the transactions contemplated hereby and shall execute any and
all additional documents and shall take such additional actions as shall be
reasonably necessary or appropriate for such purposes.
(n) Waiver of Jury Trial. The parties hereto each knowingly,
voluntarily and intentionally waive their respective rights to a trial by jury
in respect of any litigation related to or arising from this Agreement, or any
course of conduct, course of dealing, statement or actions of any of the parties
hereto.
(o) Applicable Law and Venue. This Agreement shall be construed in
accordance with and be governed by the laws of the State of Delaware and the
parties hereto agree that any suit brought hereunder shall be brought only in
New York, New York.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, HAVE HAD THE OPPORTUNITY
TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR OWN CHOICE, AND UNDERSTAND EACH OF
THE PROVISIONS OF THIS AGREEMENT.
Date of Grant: February 10, 2004 ADVANCED VIRAL RESEARCH CORP.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Chief Executive Officer
OPTIONEE:
Agreed and Accepted as of February 10, 2004
/s/ Xxxx X. Xxxxxxx
5
